Thông tư 34/2011/TT-NHNN

Circular No. 34/2011/TT-NHNN of Hanoi, October 28, 2011 guiding the order, procedure for revocation of License and liquidation of assets of credit institutions, foreign bank’s branches; order, procedure for revocation of License of representative office of foreign credit institutions, other foreign institutions having banking activity

Nội dung toàn văn Circular No. 34/2011/TT-NHNN guiding the order, procedure for revocation


STATE BANK OF VIETNAM
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No. 34/2011/TT-NHNN

Hanoi, October 28, 2011

 

CIRCULAR

GUIDING THE ORDER, PROCEDURE FOR REVOCATION OF LICENSE AND LIQUIDATION OF ASSETS OF CREDIT INSTITUTIONS, FOREIGN BANK’S BRANCHES; ORDER, PROCEDURE FOR REVOCATION OF LICENSE OF REPRESENTATIVE OFFICE OF FOREIGN CREDIT INSTITUTIONS, OTHER FOREIGN INSTITUTIONS HAVING BANKING ACTIVITY

- Pursuant to the Law on the State Bank of Vietnam No. 46/2010/QH12 dated 16 June 2010;

- Pursuant to the Law on Credit Institutions No. 47/2010/QH12 dated 16 June 2010;

- Pursuant to the Law on Enterprises No. 60/2005/QH11 dated 29 November 2005;

- Pursuant to the Law on Bankruptcy No. 21/2004/QH11 dated 15 June 2004;

- Pursuant to the Decree No. 05/2010/ND-CP dated 18 January 2010 of  the Government on the application of the Law on Bankruptcy to credit institutions;

- Pursuant to the Decree No. 96/2008/ND-CP dated 26 August 2008 of the Government providing for the functions, duties, authorities and organizational structure of the State Bank of Vietnam;

The State Bank of Vietnam hereby provides guidance on the order, procedure for revocation of License and liquidation of assets of Credit institutions, foreign bank’s branches; order, procedure for revocation of License of Representative Office of foreign credit institutions, other foreign institutions having banking activity as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Circular provides for the order, procedure for revocation of License and liquidation of assets of Credit institutions, foreign bank’s branches; order, procedure for revocation of License of Representative Office of foreign credit institutions, other foreign institutions having banking activity.

Article 2. Subjects of application

1. Credit institutions that are established and operate under the Law on Credit institutions (except cooperative Banks and local People’s credit funds).

2. Foreign bank’s branches.

3. Representative offices of foreign credit institutions, other foreign institutions having banking activity (hereinafter shortly referred to as representative offices).

4. Organizations, individuals involving in the revocation of License of credit institutions, foreign bank’s branches, representative offices.

5. Organizations, individuals involving in the liquidation of assets of credit institutions, foreign bank’s branches.

Article 3. Interpretation

In this Circular, following terms shall be construed as follows:

1. Approval authority shall mean:

a. Approval authority of the credit institution as to the termination of operation of the credit institution in accordance with provisions in the Charter of the credit institutions and current provisions of applicable laws;

b. Approval authority of the Parent bank as to the termination of operation of the foreign bank’s branch in accordance with provisions in the Charter of the Parent bank and current provisions of applicable laws;

c. Approval authority of the foreign credit institution, other foreign institution having banking activity as to the termination of operation of the representative office in accordance with provisions in the Charter of the foreign credit institution, other foreign institution having banking activity and current provisions of applicable laws.

2. Owner shall mean:

a. Shareholders (for a credit institution that is established in the form of a joint stock company);

b. Capital contributors (for a credit institution that is established in the form of a limited liability company);

c. Parent bank (for a foreign bank’s branch);

d. Foreign credit institution, other foreign institution having banking activity (for a representative office).

3. State Bank’s Branch shall mean the State Bank’s Branch in a province, city under the central Government’s management where the Head office of the credit institution, foreign bank’s branch, representative office is located.

4. People’s Committee shall mean People’s Committee of provinces, cities under the central Government’s management where the Head office of the credit institution, foreign bank’s branch, representative office is located.

5. License shall include Establishment and Operation License of credit institutions, Establishment License of foreign bank’s branches, Establishment License of representative offices of foreign credit institutions, other foreign institutions having banking activity, which is issued by the State Bank. The written approval of the State Bank to the amendment of, supplement to a License shall be an integral part of the License.

6. Parent bank shall mean a foreign bank that holds more than 50% of charter capital of a 100% foreign bank operating in Vietnam or having a branch in Vietnam.

Article 4. Competence to decide the revocation of License; Supervise the liquidation of assets of credit institutions, foreign bank’s branches

1. The Governor shall decide the revocation of License of credit institutions, foreign bank’s branches and representative offices in accordance with provisions of the Law on Credit institutions and this Circular.

2. The State Bank shall supervise the liquidation of assets of credit institutions, foreign bank’s branches in accordance with provisions of the Law on Credit institutions and this Circular.

Article 5. Principles of preparing and submitting application file

1. The application file shall be made in Vietnamese. Duplicate copies in Vietnamese and Vietnamese translation from foreign language must be certified by the competent authority in accordance with provisions of applicable laws.

2. For a credit institution, the application for revocation of License shall be signed by the legal representative. In the event where the legal representative authorizes another person to sign, the application file then shall include a letter of authorization, which is prepared in conformity with provisions of applicable laws. In case where the credit institution’s legal representative is absent, the Board of Directors or Board of Members shall appoint a member of the Board of Directors or Board of Members to sign that application.

3. For a foreign bank’s branch, representative office, the application for revocation of License shall be signed by the authorized representative of the owner.

4. The application file shall be sent to the State Bank of Vietnam in one of following methods: direct submission, submission via post office.

Article 6. Principles of application of regulations on revocation of License and liquidation of assets of credit institutions, foreign bank’s branches

1. In the event where a credit institution is divided, split, merged, integrated, the order and procedure for revocation of License shall be implemented in accordance with provisions of laws on division, split, mergence, integration of credit institutions.

2. In the event where a credit institution goes bankrupt, the License shall be revoked by the State Bank immediately after it provides a document on termination of special control or a document on termination of application or a document on not applying measures for recovering the solvency of the credit institution, but the credit institution still goes bankrupt. The liquidation of assets of the credit institution shall be implemented in accordance with provisions of laws on bankruptcy.

3. For other cases, the order, procedure for revocation of License and liquidation of assets of the credit institution, foreign bank’s branch shall be implemented in line with provisions of this Circular.

Article 7. Prohibited acts in the revocation of License and liquidation of assets of the credit institution, foreign bank’s branch

Since the date where the approval authority of the credit institution, foreign bank’s branch approves the revocation of the License (where the credit institution, foreign bank’s branch applies for revocation of License) or the Governor of the State Bank issues a document requiring the credit institution, foreign bank’s branch to terminate operation (where the credit institution, foreign bank’s branch is subject to the revocation of License), the credit institution, foreign bank’s branch is strictly prohibited from:

1. Concealing, dispersing and hiding assets;

2. Making payment for unsecured debts;

3. Waiving or reducing the right to collect debt;

4. Moving unsecured debts into debts secured by assets of the credit institution, foreign bank’s branch;

5. Giving, offering, using for mortgage, pledge and lease;

6. Signing a new contract that is not for the purpose of operation termination;

7. Remitting money, assets to foreign countries.

Chapter II

SPECIFIC PROVISIONS

SECTION 1: REVOCATION OF LICENSE IN RESPECT OF A CREDIT INSTITUTION, FOREIGN BANK'S BRANCH

Article 8. Procedure for revocation of License in respect of a credit institution, foreign bank’s branch

1. For the case where the credit institution, foreign bank’s branch proactively applies for revocation of License:

a. The credit institution, foreign bank’s branch shall:

- Prepare a liquidation Plan, which must be approved by the approval authority.

- Prepare one (01) set of application file as prescribed in Article 9 of this Circular for sending to the State Bank (Banking Inspection and Supervision Department).

b. Within a maximum period of fifteen (15) working days since the full receipt of the application file as prescribed in Article 9 of this Circular, the Banking Inspection and Supervision Department shall be responsible for appraising the file and giving dispatch for collecting opinion of:

- State Bank’s Branch on:

(i) The real situation of organization and operation and ability to make payment for all the debts;

(ii) Opinion about the revocation of License, recommended solutions after the revocation of License;

(iii) List of members of the Liquidation Committee;

(iv) In case of agreeing to the revocation of License, the State Bank’s Branch shall appoint a person to participate in the Liquidation supervision team in accordance with provisions of this Circular.

- People’s Committee on:

(i) The impact of the revocation of License on the stability of the local socio-economic condition; and

(ii) Opinion about the revocation of License.

- Deposit Insurance of Vietnam:

(i) Real situation of organization and operation and ability to make payment for all the debts;

(ii) The performance of deposit insurance fee payment and balance of insured deposit under

the latest fee schedule; availability of fund for insurance fee payment and direction for supplementing the fund for payment upon necessity;

(iii) Opinion about the revocation of License, recommended methods of payment of insured deposits after the revocation of License;

(iv) Impact of the revocation of License on the rights and interests of the depositors and on the safety of the banks system.

- Related units of the State Bank as to their opinion about the revocation of License and recommended solutions after the revocation of License (if they may deem as necessary).

c. Within a maximum period of fifteen (15) working days since the receipt of the request from the Banking Inspection and Supervision Department, the above units shall provide their opinion in writing on the requested contents, and send to the Banking Inspection and Supervision Department. After this period, those units that do not give their opinion shall be deemed as agreeing to the revocation of License.

d. Within a maximum period of ten (10) working days since the full receipt of opinions of units as mentioned in Point b Paragraph 1 of this Article, the Banking Inspection and Supervision Department shall collect the opinions and recommend its own opinion and submit to the Governor for:

- Making decision on the revocation of License, requesting the credit institution, foreign bank’s branch to proceed with liquidation of assets; at the same time, establishing the Liquidation Committee, Asset Liquidation Supervision Team where the asset liquidation plan of the credit institution, foreign bank's branch may demonstrate the ability to make full payment for the debts and ensure benefits of the customers and creditors; or

- Having document requiring credit institutions, foreign bank's branches to report and explain related contents (if any).

dd. Within a maximum period ten (10) working days since the receipt of the explanation statement of the credit institution, foreign bank's branch, the Banking Inspection and Supervision Department shall review, give opinion and submit the Governor of the State Bank for settlement in accordance with provisions in Point d Paragraph 1 of this Article.

e. Within a maximum period of five (05) working days since the receipt of the statement of the Banking Inspection and Supervision Department, the Governor shall review and make decision on the suggestion of the Banking Inspection and Supervision Department as stated in Point d and Point dd Paragraph 1 of this Article.

2. For the case where the License of credit institution, foreign bank's branch is revoked upon requirement:

a. Based on the inspection and supervision result or proposal of the State Bank's branch, or request of the competent state authority, the Banking Inspection and Supervision Department shall submit a statement to the Governor of the State Bank for issuing a document on requiring the credit institution, foreign bank's branch to terminate its operation and to prepare an asset liquidation plan as prescribed in Paragraph 2 Article 9 of this Circular.

b. Within a maximum period of sixty (60) days since the date where the Governor of the State Bank issues a document on requiring the operation termination, the credit institution, foreign bank's branch shall finish the preparation of its asset liquidation plan enclosed with the documents of License revocation as prescribed in Article 9 of this Circular and submit to the State Bank for consideration and decision.

c. After receiving the documents of License revocation of the credit institution, foreign bank's branch, the Banking Inspection and Supervision Department shall implement the procedure for License revocation in accordance with provisions in Paragraph 1 of this Article (excluding Point a).

Article 9. Documents of License revocation in respect of a credit institution, foreign bank's branch

1. A request for the revocation of License, which states clearly the reasons for the revocation of the License, ability to make full payment for the debts and actions to be taken after the revocation of the License, expected list of members of the Liquidation Committee (except for the case where the License of the credit institution, foreign bank's branch is revoked upon request).

2. An asset liquidation plan, which consists of following basic contents:

a. Name, address, electronic web page of the credit institution, foreign bank's branch.

b. Name, address, electronic web page of the owner (for a foreign bank's branch).

c. Name, address and contact number of members of the Board of Directors or Board of Members, members of the Board of Controllers, General Director (for a credit institution); General Director (for a foreign bank's branch).

d. Name, address, contact number of members of the Liquidation Committee.

dd. Summary of the financial and operation situation (liabilities, receivables, payables, including on-balance and off-balance items) as of the time when the credit institution, foreign bank's branch proactively proposes or is required to revoke the License; in which, the ability to make full payment for the debts must be clearly determined.

e. Reasons of the voluntary or required revocation of the License.

g. List of big shareholders (for a joint stock credit institution) or owner (for other credit institutions, foreign bank's branches).

h. Plan on the settlement of rights and obligations, which clearly shows the schedule of liquidation. For a foreign bank's branch, it is required to specify the plan on the transfer of capital, profit and assets to foreign country.

i. A plan on the archive of documents, materials after the revocation of the License.

k. Responsibilities of organizations, individuals relating to the revocation of the License.

l. Responsibilities of organizations, individuals relating to the liquidation of assets.

3. A document issued by the approval authority adopting the revocation of the License and the asset liquidation plan of the credit institution, foreign bank's branch.

4. For the case where the License of the foreign bank's branch is revoked in accordance with provisions in Point e Paragraph 1 Article 28 of the Law on Credit institutions, the set of documents must be supported with document issued by the competent authority of the country where the head office of the foreign bank is located in regard of the dissolution, bankruptcy or revocation of License or suspension of operation.

5. For the case where the foreign bank's branch proposes the revocation of License upon request by the parent bank, the set of documents must be supported by the Decision of the parent bank on the dissolution, termination of operation of the foreign bank's branch.

6. Audited financial statements of the credit institution and foreign bank's branch as of the time of applying for or being required of License revocation.

Article 10. Procedure for revocation of License for a representative office

1. For the case where the representative office proactively applies for the revocation of License

a. The representative office shall be required to:

- Obtain opinion of the approval authority on the revocation of the License.

- Prepare one (01) set of application file in accordance with provisions in Article 11 of this Circular for sending to the State Bank (Banking Inspection and Supervision Department).

b. Within a maximum period of (05) working days since the receipt of the sufficient application file as prescribed in Article 11 of this Circular, the Banking Inspection and Supervision Department shall be responsible for appraising the file and proceeding with obtaining opinion of:

- The State Bank's Branch on the revocation of the License, recommended actions to be taken after the revocation of the License.

- Related units of the State Bank on the revocation of the License and recommended actions to be taken after the revocation of the License (if it is deemed as necessary).

c. Within a maximum period of seven (07) working days since the receipt of the proposal of the Banking Inspection and Supervision Department, the above mentioned units shall provide opinion in writing on the requested contents and send to the Banking Inspection and Supervision Department. After this period, those units that do not give their opinion shall be deemed as agreeing to the revocation of License.

d. Within a maximum period of seven (07) working days since the full receipt of opinions contributed by units mentioned in Point b Paragraph 1 of this Article, the Banking Inspection and Supervision Department shall collect and summarize opinions, suggest its own point of view and submit to the Governor:

- Making decision on the revocation of License, requesting the representative office to carry out procedures for termination of operation, closing the representative office, such as returning the operation registration certificate, seal, liquidating the office lease contract and making payment of obligations, other debts (if any) with related individuals, organizations in accordance with provisions of applicable laws; or

- Having document requiring the representative office to report and explain related contents (if any).

dd. Within a maximum period of five (05) working days since the receipt of the explanation statement of the representative office, the Banking Inspection and Supervision Department shall review, give opinion and submit the Governor of the State Bank for settlement in accordance with provisions in Point d Paragraph 1 of this Article.

e. Within a maximum period of five (05) working days since the receipt of the statement of the Banking Inspection and Supervision Department, the Governor shall review and make decision on the suggestion of the Banking Inspection and Supervision Department as stated in Point d and Point dd Paragraph 1 of this Article.

g. Within a maximum period of five (05) working days since the receipt of the Decision on revocation of License from the Governor of the State Bank, the representative office shall be responsible for carrying out procedures of termination of operation.

2. For the case where the License of the representative office is revoked upon requirement:

a. Based on the inspection and supervision result or proposal of the State Bank's branch, or request of the competent state authority, the Banking Inspection and Supervision Department shall submit a written request to the Governor of the State Bank for a Decision on revocation of License of the representative office.

b. Within a maximum period of five (05) working days since the receipt of the Decision on revocation of License from the Governor of the State Bank, the representative office shall be responsible for carrying out procedures of termination of operation.

Article 11. Documents of License revocation in respect of a representative office

1. A request for the revocation of License, which states clearly the reasons for the revocation of the License, the archive of documents, materials after the revocation of License, responsibility of organizations, individuals relating to the revocation of the License.

2. A Decision issued by the approval authority on the revocation of the License of the representative office.

3. For the case where the License of the representative office is revoked in accordance with provisions in Point e Paragraph 1 Article 28 of the Law on Credit institutions, the set of documents shall also contain the document as prescribed in Paragraph 4 Article 9 of this Circular.

4. For the case where the representative office applies for the revocation of License upon request by the owner, the set of documents must be supported with a Decision of the owner on the dissolution, termination of operation of the representative office.

Article 12. Announcement of the Decision on revocation of License

1. The Decision on revocation of License shall be sent to the credit institution, foreign bank's branch, representative office, the State Bank's Branch, People's Committee, Deposit Insurance of Vietnam, National Financial Supervisory Commission, Vietnam Banks Association, Ministry of Finance.

2. Within a maximum period of seven (07) working days since the date where the Decision on revocation of the License comes into effect, the State Bank shall be responsible for publishing in its electronic web page and three (03) consecutive editions of a daily newspaper, which is nationally distributed, in regard of the revocation of License of the credit institution, foreign bank's branch and representative office.

3. Within a maximum period of seven (07) working days since the date where the Decision on revocation of the License comes into effect, the credit institution, foreign bank's branch, representative office shall be responsible for posting the Decision on the revocation of License at their head office and offices of credit institution's branches; head office of foreign bank's branch, representative office.

SECTION 2: LIQUIDATION OF ASSETS OF A CREDIT INSTITUTION, FOREIGN BANK'S BRANCH UNDER THE SUPERVISION OF THE STATE BANK

Article 13. Procedure for liquidation of assets of a credit institution, foreign bank's branch

1. Within a maximum period of thirty (30) working days since the Decision on revocation of the License comes into effect, the credit institution, foreign bank's branch shall be required to proceed with the liquidation of assets in accordance with provisions of this Circular and other provisions of applicable laws.

2. Within a maximum period of thirty (30) working days since the ending of the asset liquidation, the credit institution, foreign bank's branch shall be required to implement procedures for finishing the liquidation in accordance with provisions in Article 15 of this Circular.

3. Within a maximum period of ten (10) working days since the receipt of the request for finishing the liquidation of the State Bank's Branch, the Banking Inspection and Supervision Department shall prepare and submit a written request to the Governor of the State Bank for issuing a Decision on the ending of the liquidation or requiring the credit institution, foreign bank's branch to report, explain certain issues relating to the liquidation. The Decision on the ending of the liquidation shall also the Decision on the termination of operation of the Liquidation Supervision Team.

4. Within a maximum period of ten (10) working days since the receipt of the Decision on the ending of the liquidation issued by the Governor of the State Bank, the credit institution shall be required to proceed with procedures for terminating its legal entity and making announcement in accordance with current provisions of applicable laws.

Article 14. Period of the liquidation

1. The period of liquidation shall be twelve (12) months since the date where the Decision

on revocation of the License comes into effect. In case where beyond this period, the credit institution, foreign bank's branch has not finished the liquidation yet, it shall be required to submit an application to the Governor of the State Bank for extension of the liquidation period (the application shall state clearly the reason for the extension); the every extended period shall not exceed twelve (12) months; any case shall be extended for three (03) times at the maximum.

2. Thirty (30) days before the ending of the liquidation period, the credit institution, foreign bank's branch may apply in writing for the extension of the liquidation. This application, which states clearly the reasons thereof, shall be sent to the State Bank (the Banking Inspection and Supervision Department). Within a period of ten (10) working days since the receipt of the application mentioned above, the Governor of the State Bank shall provide a document on approving or disapproving the application of the credit institution, foreign bank's branch for the extension of the liquidation period.

Article 15. Ending of liquidation

1. The credit institution, foreign bank's branch shall end their liquidation in following cases:

a. All debts have already been repaid to the creditors in compliance with provisions in Article 16 and Paragraph 1 Article 17 of this Circular.

b. It is acquired by another credit institution, which accepts to make payment for all the debts to creditors of the credit institution, foreign bank's branch.

c. It is unable to make full payment for all the debts.

d. The liquidation period has expired, including the extended period (if any).

2. Upon ending the liquidation as prescribed in Point a and Point b Paragraph 1 of this Article, the Liquidation Committee shall make a written report and send to the People's Committee and the State Bank's Branch to apply for approval to the ending of liquidation.

3. Upon ending the liquidation as prescribed in Point c and Point d Paragraph 1 of this Article, the Liquidation Committee shall make a written report and send to the People's Committee and State Bank's Branch on the liquidation result and apply for approval to the ending of liquidation so that procedures of bankruptcy may be proceeded in conformity with applicable provisions.

Article 16. Refund of assets

A credit institution, foreign bank's branch in the risk of insolvency or in the period of special control, which has a special loan from the State Bank, another credit institution, foreign bank's branch, or which is supported with finances from the Deposit Insurance of Vietnam, shall be liable to refund the value of such loan (support) before implementing provisions in Article 17 of this Circular.

Article 17. Order of priority in the distribution of assets

1. The distribution of assets of the credit institution, foreign bank's branch shall be performed in the following order of priority:

a. Fees, charges in accordance with provisions of laws for the purpose of the liquidation of the credit institution, foreign bank's branch.

b. Due to salaries, severance allowances, social insurance payable to the labourers in accordance with provisions of applicable laws and other interests under the concluded collective labour agreements and labour contracts.

c. Tax liabilities.

d. Payables to the depositors of Deposit Insurance of Vietnam and deposits of depositors.

dd. Debts secured by the pledged or mortgaged asset: These debts are preferably paid with the very pledged or mortgaged asset. If value of the pledged or mortgaged asset is not enough for full payment of the debt, the remaining amount shall be paid during the liquidation of assets of the credit institution, foreign bank's branch; if the value of the pledged or mortgaged asset is higher than the loan amount, then the difference shall be included in the value of the remaining assets of the credit institution, foreign bank's branch. These creditors may make agreement on the ratio of debt repayment, providing that the principle of not affecting the rights and obligations of the credit institution, foreign bank's branch must be ensured.

e. Unsecured debts: debts must be repaid to creditors in the list of creditors in the principle that if value of assets is enough for payment of all debts, every creditor shall be entitled to full payment of their debts; if value of the assets is not enough for payment of all debts, each creditor shall only be entitled to partial payment of their debts under the respective proportion. These creditors may make agreement on the ratio of debt repayment, providing that the principle of not affecting the rights and obligations of the credit institution, foreign bank's branch must be ensured.

2. In the event where after the all the payments as stated in Paragraph 1 of this Article have been made, the residual value of the assets of the credit institution, if any, shall be equally distributed to owners in proportion with the ratio of capital contribution at the time of the distribution.

3. In the event where after the all the payments as stated in Paragraph 1 of this Article have been made, the residual value of the assets of the foreign bank's branch, if any, shall be managed by the owner.

Article 18. Liquidation Committee

1. For a credit institution:

a. The Liquidation Committee shall be proposed by the Board of Directors or Board of Members of the credit institution and decided by the Governor of the State Bank, which consists of the Chairman of the Board of Directors or Board of Members, at least 01 independent member of the Board of Directors (for a joint stock credit institution), Chief of the Controllers' Committee, General Director, Chief Accountant and some other members selected among the members of the Board of Directors or members of the Board of Members, members of the Controllers' Committee (if any), major shareholder (for a joint stock credit institution) and 05 customers with greatest deposit balances of the credit institution at the time of applying for the revocation of the License or the time where the State Bank issues a document requiring the termination of operation.

b. Chairman of the Board of Directors or Chairman of the Board of Members shall be the Chairman of the Liquidation Committee. In case where the Chairman of the Board of Directors or Chairman of Board of Members is absent, the Board of Directors or Board of Members shall convene a meeting to appoint a person among the members of the Board of Directors or members of the Board of Members to undertake this position.

2. For a foreign bank's branch:

a. The Liquidation Committee shall be proposed by the authorized representative of the parent bank and decided by the Governor of the State Bank, which consists of the General Director, Chief Accountant, at least one (01) member appointed by the owner and five (05) customers with greatest deposit balances of the foreign bank's branch at the time of applying for the revocation of the License or the time where the State Bank issues a document requiring the termination of operation.

b. The General Director of the foreign bank's branch shall be the Chairman of the Liquidation Committee. In case where the General Director is absent, the parent bank shall appoint a person among the members of the Liquidation Committee to undertake this position.

Article 19. Responsibilities of the Liquidation Committee

1. To check all items in the categories of assets and liabilities, off-balance items of the balance sheet of the credit institution, foreign bank's branch, to draw a list of and amount due to creditors, customers up to the time of the asset liquidation of the credit institution, foreign bank's branch and the list of assets of the credit institution, foreign bank's branch for settlement.

2. To carry out the liquidation of assets of the credit institution, foreign bank's branch and take all actions as possible for collection of debts and assets of the credit institution, foreign bank's branch under the liquidation plan that is already approved by the Governor of the State Bank. All the receipts of the credit institution, foreign bank's branch shall be used for the payment of debts to creditors as prescribed in Article 16 and Article 17 of this Circular.

3. On the 5th of every month, the Liquidation Committee shall be responsible for reporting the Liquidation supervision team of the credit institution, foreign bank's branch under the liquidation plan that is already approved by the Governor of the State Bank.

4. After ending the liquidation, the Liquidation Committee shall make a report and send to the People's Committee and State Bank's Branch for requesting the ending of liquidation in accordance with provisions of this Circular.

SECTION 3: ASSET LIQUIDATION SUPERVISION OF THE CREDIT INSTITUTION, FOREIGN BANK'S BRANCH

Article 20. Organization structure of the Liquidation Supervision Team

1. The Governor of the State Bank shall decide the establishment of the Liquidation Supervision Team for supervising the liquidation of assets of the credit institution, foreign bank's branch, appoint Leader of the Liquidation Supervision Team and specify the responsibility, authority of the Leader and members of the Liquidation Supervision Team.

2. The Liquidation Supervision Team shall have at least five (05) members, including representatives from the State Bank of Vietnam, State Bank's Branch and representatives from Deposit Insurance of Vietnam.

3. Upon necessity, the Governor of the State Bank may nominate another credit institution to take part in supervising the liquidation of assets of the credit institution and members of the Liquidation Supervision Team shall be recommended by the credit institution's Board of Directors or Board of Members on the basis of satisfying standards, conditions as prescribed in this Circular.

Article 21. Operation mechanism of the Liquidation Supervision Team

1. Members of the Liquidation Supervision Team shall work under the mechanism of concurrently holding various positions.

2. The Liquidation Supervision Team shall use the seal of the State Bank's Branch in statements, reports signed by the Leader of the Team.

3. The Leader of the Liquidation Supervision Team and its members shall be responsible to the General Manager of the State Bank's Branch, the Governor of the State Bank for the performance of their duties.

4. The meeting session of the Liquidation Supervision Team shall be proceeded upon the attendance of at least two third of the total number of members. Decisions of the Liquidation Supervision Team shall only be passed upon the agreement of the majority of the attending members. In case of equal voting, the final decision-making power shall belong to the Leader of the Team.

5. The duty of the Liquidation Supervision Team shall terminate where the Governor decides in writing to finish the liquidation of assets of the credit institution, foreign bank's branch.

6. Any expenses relating to the operation of the Liquidation Supervision Team shall be charged to the credit institution, foreign bank's branch. The accounting of these expenses shall be in compliance with current regime of accounting.

Article 22. Standards, conditions for a member of the Liquidation Supervision Team

1. To be an officer of a related unit of the State Bank of Vietnam, State Bank's Branch; Deposit Insurance of Vietnam; or an officer of another credit institution who is appointed by the Governor of the State Bank to join the Liquidation Supervision Team.

2. To have qualification of University degree or higher specialized in finance and banking and to have at least 3 years working in banking or deposit insurance area.

3. Not to be an owner, related person of a member of the Board of Directors or member of the Board of Members, member of the Controllers' Committee, General Director, member of the Liquidation Committee of the credit institution, foreign bank's branch that is under the liquidation of assets.

4. The Leader of the Liquidation Supervision Team shall be the General Manager of the State Bank's Branch or a person who is authorized by the General Manager of the State Bank's Branch.

Article 23. Responsibilities and authorities of the Liquidation Supervision Team

1. To direct, supervise the credit institution, foreign bank's branch to inventory all their liabilities, receivables, payables; to ask the credit institution, foreign bank's branch to perform verification with the creditors, customers in order to determine the solvency and source of debt repayment.

2. To require the Liquidation Committee of the credit institution, foreign bank's branch to report, supply documents, information about the real situation of the organization and operation of the credit institution, foreign bank's branch during the process of asset liquidation, to make full payment to the creditors in line with the order of priority as prescribed in this Circular.

3. To monitor the entire process of asset liquidation of the credit institution, foreign bank's branch.

4. On the 10th of every month, to send the periodical report or unexpected report to the Governor of the State Bank, Chairman of the People's Committee, Deposit Insurance of Vietnam on the evolution of the asset liquidation process of the credit institution, foreign bank's branch. Upon necessity, to send a written request to related units for assisting the credit institution, foreign bank's branch in collection of receivables, dealing with customers who deliberately cause losses to the assets of the credit institution, foreign bank's branch.

5. To be entitled to recommend the General Manager of the State Bank's Branch to make decision on suspending the operation of members of the Liquidation Committee of the liquidated credit institution, foreign bank's branch, who intentionally commit violation or fail to observe the liquidation plan or have any act of dispersing and hiding assets, refusing a responsibility or an obligation; in case of seriousness, to submit the Governor for requesting law protection authorities to deal with violating individuals (if any).

6. To propose the General Manager of the State Bank's Branch, People's Committee of province, city and Governor of the State Bank to handle the arising issues that are beyond the scope of competence.

7. The Liquidation Supervision Team shall be subject to the direct guidance of the General Manager of the State Bank's Branch where the head office of the credit institution, foreign bank's branch is located.

8. To report on the implementation of the asset distribution plan that is sent to the Governor of the State Bank by the credit institution, foreign bank's branch.

9. In the supervision over the asset liquidation of the credit institution, foreign bank's branch, if finding out that the credit institution is unable to make full payment for the debts, the Liquidation Supervision Team shall be responsible for reporting the Governor for deciding the ending of liquidation and requiring the credit institution to submit an application for opening procedures of bankruptcy for the credit institution.

Chapter III

RESPONSIBILITIES OF RELATED UNITS

Article 24. Responsibilities of the credit institutions, foreign bank's branches, representative offices

1. To fully and truthfully supply documents on the real situation of the organization and operation of the credit institution, foreign bank's branch, representative office.

2. To implement the reporting regime and other regulations relating to the revocation of License and liquidation of assets of the credit institution, foreign bank's branch in conformity with provisions of this Circular.

Article 25. Responsibilities of the State Bank's Branch where the head office of the credit institution is located

1. Based on the inspection and supervision result, to propose the Governor of the State Bank to consider and decide on the revocation of License for the credit institution in accordance with provisions in Article 28 of the Law on Credit institutions.

2. To handle proposals with regard to arising issues relating to the revocation of License and liquidation of assets of the credit institution, foreign bank's branch that are beyond the competence of the Liquidation Supervision Team.

3. To give opinion in writing to the request of the Banking Inspection and Supervision Department in line with provisions of this Circular.

4. To submit the Governor of the State Bank for consideration and settlement of arising issues that are beyond the competence regarding the revocation of License and liquidation of assets of the credit institution, foreign bank's branch.

5. To appoint a person to join the Liquidation Supervision Team in accordance with provisions of this Circular.

Article 26. Responsibilities of the State Bank's Branch in province, city under the central Government's management where the head office of the credit institution is located

To coordinate with the State Bank's Branch where the head office of the credit institution is located and the Banking Inspection and Supervision Department in the revocation of License and liquidation of assets of the credit institution, foreign bank's branch.

Article 27. Responsibilities of the Banking Inspection and Supervision Department

1. On the basis of the inspection, supervision result or proposal of the credit institution, foreign bank's branch, representative office or proposal of the State Bank's Branch or proposal of the competent authority, if it may deem the credit institution, foreign bank's branch, representative office commits a serious violation, causing effect on the system security, the Banking Inspection and Supervision Department shall act as a head unit in the verification of documents and submission to the Governor of the State Bank for consideration, decision on the revocation of License against the credit institution, foreign bank's branch, representative office.

2. To provide advice to the Governor of the State Bank in the establishment of the Liquidation Supervision Team, in the settlement of difficulties in the revocation of License, liquidation of assets.

3. To submit a written request to the Governor of the State Bank for collecting opinion of Ministries, industries relating to the liquidation of assets of the credit institution, foreign bank's branch if it may deem necessary.

4. To submit a written request to the Governor of the State Bank for making decision on the establishment of the Liquidation Committee.

5. To submit a written request to the Governor for making decision on ending the liquidation.

6. To submit a written request to the Governor for making decision on ending the liquidation and asking the credit institution to submit an application for opening procedures of bankruptcy for the credit institution in accordance with provisions in Paragraph 3 Article 156 of the Law on Credit institutions.

Article 28. Responsibilities of the Legislation Department

To provide opinion on the legal issues relating to the revocation of License and liquidation of assets of the credit institution, foreign bank's branch.

Article 29. Responsibilities of the State Bank's Office

To announce the Decision on the revocation of License in accordance with provisions of this Circular.

Article 30. Responsibilities of other Departments, Offices

Other units of the State Bank shall provide opinion in writing on the proposal of the Banking Inspection and Supervision Department as prescribed in this Circular.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 31. Implementation effectiveness

1. This Circular shall be effective from 11 December 2011.

2. The Decision No. 45/1999/QD-NHNN5 dated 05 February 1999 of the Governor of the State Bank on the issuance of the Regulation on the revocation of Establishment and Operation License of Vietnamese joint stock credit institutions and the liquidation of assets of joint stock credit institutions under the supervision of the State Bank shall expire.

3. Paragraph 40, Paragraph 41, Paragraph 71, Paragraph 72, Paragraph 73 of the Circular No. 03/2007/TT-NHNN dated 5 June 2007 on Guiding the implementation of several Articles of the Decree No. 22/2006/ND-CP dated 28 February 2006 of the Government on the organization and operation of foreign bank's branches, joint venture banks, 100% foreign owned banks, representative offices of foreign credit institutions in Vietnam shall expire.

Article 32. Organization of implementation

Director of the Administrative Department, Director of the Banking Inspection and Supervision Department, Head of related units of the State Bank, General Managers of State Bank’s branches in provinces, cities under the central Government’s management, Chairman and members of the Board of Directors, Chairman and members of the Board of Members, Chief and members of the Controllers' Committee, General Director of credit institutions; General Director of foreign bank's branches, Chief of representative offices and related organizations, individuals shall be responsible for the implementation of this Circular.

 

 

FOR THE GOVERNOR OF THE STATE BANK
DEPUTY GOVERNOR




Tran Minh Tuan

 

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Thuộc tính Văn bản pháp luật 34/2011/TT-NHNN

Loại văn bảnThông tư
Số hiệu34/2011/TT-NHNN
Cơ quan ban hành
Người ký
Ngày ban hành28/10/2011
Ngày hiệu lực11/12/2011
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Lĩnh vựcTiền tệ - Ngân hàng
Tình trạng hiệu lựcCòn hiệu lực
Cập nhật12 năm trước
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Lược đồ Circular No. 34/2011/TT-NHNN guiding the order, procedure for revocation


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      Circular No. 34/2011/TT-NHNN guiding the order, procedure for revocation
      Loại văn bảnThông tư
      Số hiệu34/2011/TT-NHNN
      Cơ quan ban hànhNgân hàng Nhà nước
      Người kýTrần Minh Tuấn
      Ngày ban hành28/10/2011
      Ngày hiệu lực11/12/2011
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      Số công báo
      Lĩnh vựcTiền tệ - Ngân hàng
      Tình trạng hiệu lựcCòn hiệu lực
      Cập nhật12 năm trước

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