Quyết định 365/2004/QD-NHNN

DECISION

ON THE LENDING TO VIETNAMESE WORKERS WHO GO AND WORK ABROAD

THE GOVERNOR OF THE STATE BANK

- Pursuant to the Law on the State Bank of Vietnam No. 01/2997/QH10 dated 12 December, 1997; the Law on the amendment, supplement of several Articles of the Law on the State Bank of Vietnam No. 10/2003/QH11 dated 17 June, 2003 and the Law on Credit Institutions No. 02/1997/QH10 dated 12 December, 1997;
- Pursuant to the Decree No. 86/2002/ND-CP dated 05 November, 2002 of the Government providing for the function, assignment, authority and organizational structure of the ministries and ministerial level agencies;
- Pursuant to the Decree No. 39/2003/ND-CP dated 18 April, 2003 of the Government providing in details for and guiding the implementation of the Labor Code on work;
- Pursuant to the Decree No. 81/2003/ND-CP dated 17 July, 2003 of the Government providing in details for and guiding the implementation of the Labor Code on Vietnamese workers who are working in foreign countries;
- Pursuant to the Decree No. 78/2002/ND-CP dated 4 October, 2002 of the Government on credit to the poor and other policy subjects;
- Upon the proposal of the Director of Monetary and Policy Department,

DECIDES:

Article 1. Governing scope and subjects of application

This Decision shall provide for the lending in VND and foreign currencies by Credit Institutions to Vietnamese workers, experts and training students (hereinafter referred to as worker) who go and work abroad:

1. The State owned Commercial banks, joint stock commercial banks, joint venture banks, branches of foreign banks in Vietnam, finance companies, central people's credit Fund and local people's credit funds shall lend to workers who are not prioritized under current policy. The Bank for Social Policy shall grant preferential loans to prioritized workers under current policy stipulated in Article 2 of this Decision.

2. Borrowing customers being workers who go and work abroad under forms provided for in Article 3 of the Decree No. 81/2003/ND-CP dated 17 July, 2003:

a. Through Vietnamese enterprises, which are permitted to engage in labor providing services under the contract entered into with the foreign party.

b. Through Vietnamese enterprises, which engage in contracts, sub-contracts for projects or invest in foreign countries.

c. According to the labor contracts, which are directly entered into between individual workers and labor employers in a foreign country.

Article 2. Prioritized workers under current policy

1. Prioritized workers under current policy shall include:

a. Spouse, children of revolutionary martyrs;

b. Wounded soldiers (including wounded soldiers of B level who had been confirmed before 31 December, 1993, hereinafter referred to as on-the-job accident soldiers), persons who can benefit from the social policy like the wounded soldiers and have lost their working capability from 21% upward (hereinafter referred to as wounded soldiers);

c. Spouse, children of wounded soldiers;

d. Children of armed-force heroes, labor heroes, children of persons who have jointed the resistant war, persons who have made contribution to the revolution and been honored with resistant medals, orders, children of revolutionary cadres who participated in the revolution prior to August of 1945;

dd. Workers from poor family households according to the standard stipulated by the Ministry of Labor, Disabled Soldiers and Social Affairs on the adjustment of the poor household standard in each specific period.

2. Agencies that confirm a worker to be a prioritized one under current policy:

a. In respect of prioritized workers as provided in points a, b, c and d Paragraph 1 of this Article who are managed and paid with allowances by the local government, the Bureau of Labor- Disabled Soldiers - Social Affairs of district level, which manage their files or their name lists and perform the payment of allowances, shall make this confirmation; in case where workers are working in military, public security units, the confirmation shall be made by the military, public security units, which manage and pay allowances to them; in case they are managed and paid with allowances by the medial treatment establishments for serious wounded soldiers, which operate under the management of Ministry of Labor- Disabled Soldiers - Social Affairs, the Directors of these medial treatment establishments shall make the confirmation.

b. In respect of workers from poor family households stipulated in point d Paragraph 1 of this Article, the confirmation shall be made by the village people's committee; poor family households, which have legal resident address and are included in the list of poor family households decided upon by the village people's committee in accordance with the standard for the poor announced by the Ministry of Labor- Disabled Soldiers - Social Affairs, shall be assessed and recommended by the Savings and Borrowing Group.

Article 3. Lending principles

Credit Institutions shall lend to workers through their family household; in case where workers are living alone, the lending shall be made directly to the workers.

Article 4. Requirements for loan funds

Credit Institutions shall lend for necessary expenses to workers who go and work abroad:

1. Workers who go and work abroad through enterprises permitted to engage in labor providing activity under the contract entered into with the foreign party, they shall be entitled to borrow for financing expenditures such as: fee for labor export service, deposit amount (if any), orientation training cost, deposit or guarantee amount (if any), single airline ticket and other lawful expenses for their going and working abroad.

2. Workers who go and work abroad through Vietnamese enterprises that engage in contracts, sub-contracts for projects or invest in foreign country shall be entitled to borrow for financing expenditures such as: orientation training cost, single airline ticket, other lawful expenses for their going and working abroad.

3. Workers who go and work abroad in accordance with their individual contract shall be entitled to borrow for financing expenditures such as: single airline ticket and other lawful expenses for their going and working abroad.

Article 5. Loan security

1. The lending without assets security and lending with assets security to workers who are not prioritized under current policy shall be performed as follows:

a. Credit Institutions shall consider, decide and take self-responsibility for their decision on the lending without the application of any measure of assets security in case where the lending is made through the family household of workers who fully satisfy conditions provided for in Paragraph 18 Article 1 of the Decree No. 85/2002/ND-CP dated 25 October, 2002.

b. Commercial banks shall be permitted to consider, decide and take self-responsibility for their decision on the lending up to VND 20 million without the application of any measure of assets security in case where the lending is made through the family household of workers in rural area, which fail to fully satisfy conditions provided for in Paragraph 18 Article 1 of the Decree No. 85/2002/ND-CP dated 25 October, 2002.

c. Credit Institutions lending to workers who are not governed by cases mentioned in point a, b of this paragraph and lending to live-alone workers must take measures of assets security in accordance with provisions of applicable laws on the loan security of Credit Institutions.

d. For loans made through the family household of worker with assets security, the loan security contract shall be signed between the Credit Institution with representative of that family household and persons who jointly own assets. For loans directly made to live-alone worker with assets security, the loan security contract shall be entered into between the Credit Institution and the worker or with the party authorized by the worker under provisions of applicable laws.

2. Prioritized workers under the current policy who borrow funds from the Bank for Social Policy to go and work abroad shall not be subject to assets pledge.

Article 6. Borrowing file shall include:

1. Documents in accordance with provisions of applicable civil laws that prove the funds borrowers to be the representative of the family household of the worker who goes and works abroad. For workers, who go and work abroad and borrow preferential funds from the Bank for Social Policy, there must be documents of the State Competent agency, which prove that they are prioritized under current policy.

2. Application for borrowing of the representative of the family household or of the worker in case the worker lives alone.

3. Documents, which prove that the worker goes and works abroad:

a. For workers who go and work abroad through Vietnamese enterprises, which are permitted to engage in labor providing activity in accordance with the contract entered into with the foreign party, there must be a written notice or confirmation of the enterprise (or of the subsidiary which is assigned with the labor export activity in accordance with provisions in Paragraph 13, Article 14 of the Decree No. 81/2003//ND-CP o dated 17 July, 2003) on the recruitment of the worker to go and work abroad or the contract entered into by the enterprise, which has the permit for labor export activity and the worker who goes and works abroad.

b. For workers who go and work abroad through an enterprise that engage in contracts, subcontracts for projects or invests in foreign countries and employs Vietnamese workers, there must be a contract entered into by them and that enterprise.

c. For workers who go and work abroad in accordance with an individual contract directly entered into by the workers and labor employers in foreign country, there must be a certification proving that the individual contract has been registered in the Department of Labor - Disabled Soldiers - Social Affairs where the workers reside;

4. Loan security contract, documents concerning assets security and the performance of debt repayment (if any);

5. Other documents evidencing the full satisfaction of conditions for funds borrowing.

Article 7. Lending level

Credit Institutions shall, based on the potentially mobilized funds sources and funds requirements in line with provisions of current laws on the finance regime applicable to workers who go and work abroad; the application of provisions on loan security; repayment capacity of workers, of family households of workers, determine the lending level. The maximum lending level shall not be in excess of necessary expenses, which are stipulated in Article 4 of this Decision. The maximum lending level to the prioritized workers under current policy who borrow funds from the Bank for Social Policy shall be decided upon by the Board of Directors of the Bank for Social Policy.

Article 8. Lending period

Credit Institutions shall, based on the income levels of the workers, debt repayment capacity of family households of the workers and their funds source capacity, agree in the Credit Agreement on the lending period, which is not in excess of the term of the signed working contract.

Article 9. Loan repayment

If a Vietnamese enterprise that is permitted to engage in labor providing activity under a contract, which is entered into with the foreign party or another Vietnamese party that engages in contracts, sub-contracts for projects or invests in foreign country, can manage incomes of workers in foreign country, Credit Institutions, workers and the Vietnamese enterprise may agree in writing that the Vietnamese enterprise deducts the incomes of workers to directly repay debts to Credit Institutions.

Article 10. Examination, supervision of borrowed funds

Credit Institutions shall directly examine, supervise the process of funds borrowing, funds usage pending the completion by workers of procedures for exit. After their exit, Credit Institutions shall examine the repayment of borrowed funds through the family household of the workers in the country, or through the third party that uses their own assets as the guarantee for the workers' borrowing from Credit Institutions. In case where Credit Institutions, workers and enterprises agree that the enterprises deduct the workers' incomes to make repayment to Credit Institutions, the examination of the repayment of borrowed funds shall be performed through Vietnamese enterprises that are permitted to engage in labor providing activity or Vietnamese enterprises that engage in contracts, sub-contracts for projects or invest in foreign country.

Article 11. Application of other provisions on the lending

Where any content concerning the lending to workers who go and work abroad is not provided for in this Decision, the applications of provisions of applicable laws on the lending shall be performed as follows:

1. The lending to workers, who are not prioritized under current policy shall be performed in accordance with provisions in the Regulation on the lending by Credit Institutions to customers issued in conjunction with the Decision No. 1627/2001/QD-NHNN dated 31 December, 2001 of the Governor of the State Bank and other related legal documents.

2.The lending to prioritized workers under current policy shall be performed in accordance with provisions in Decree No. 78/2002/ND-CP dated 4 October, 2002 of the Government on credit to poor persons and other prioritized subjects under current policy and other related legal documents.

Article 12. Implementing provisions

1. This Decision shall be effective after 15 days from its publication in the Official Gazette and replace following documents: Decision No. 440/2001/QD-NHNN dated 17 April, 2004 on the lending to workers who go and work abroad for a certain period of time; Decision No. 373/2003/QD-NHNN dated 22 April, 2003 on the amendment, supplement of several Articles of the Decision No. 440/2001/QD-NHNN dated 17 April, 2004 on the lending to workers who go and work abroad for a certain period of time.

2. Credit Institutions shall, based on provisions in this Decision and other related legal documents, issue a guidance on the lending to the workers who go and work abroad, which is in line with their conditions, characteristics and Charters, secures the safety and efficiency. Cooperative Credit Institutions Department of the State Bank shall provide local people's Credit funds with guidance on lending operation to the workers who go and work abroad.

3. Heads of units of the State Bank, General Managers of the State Bank's branches in provinces, cities under the central Government's management; Board of Directors, General Directors (Directors) of Credit Institutions mentioned in Article 1 of this Decision shall be responsible for the implementation of this Decision.