Quyết định 44/2006/QD-NHNN

DECISION

ON THE ISSUANCE OF THE REGULATION ON PROCEDURES OF DRAFT COLLECTION THROUGH COLLECTING PERSON

THE GOVERNOR OF THE STATE BANK

- Pursuant to the Law on the State Bank of Vietnam in 1997 and the Law on the amendment, supplement of several Articles of the Law on the State Bank of Vietnam in 2003.
- Pursuant to the Law on Credit Institutions in 1997 and the Law on the amendment, supplement of several articles of the Law on Credit Institutions in 2004;
- Pursuant to the Law on assignment instruments in 2005;
- Pursuant to the Decree No. 52/2003/ND-CP dated 19 May 2003 of the Government providing for the function, assignment, authority and the organizational structure of the State Bank of Vietnam;
Upon the proposal of the Chief of the Payment Board,

DECIDES:

Article 1. To issue in conjunction with this Decision “the Regulation on procedures of draft collection through collecting person”.

Article 2. This Decision shall be effective after 15 days since its publication in Official Gazette.

Article 3. Director of the Administrative Department, Chief of the Payment Board, Heads of units of the State Bank of Vietnam, Managers of the State Bank branches in provinces, cities under the central Government’s management, Chairperson of the Board of Directors, General Managers (Managers) of banks, other payment services suppliers shall be responsible for the implementation of this Decision.

REGULATION

ON PROCEDURES OF DRAFT COLLECTION AUTHORIZATION THROUGH COLLECTING PERSON
(Issued in conjunction with the Decision No. 44/2006/QD-NHNN  dated 5 September 2006 of the Governor of the State Bank)

Chapter I.

GENERAL PROVISIONS

Article 1. Governing scope

1. This Regulation shall govern procedures of delivery, receipt, inspection, control, presentation, payment, treatment for cases which are refused, or are not paid or for cases where bills of exchange, promissory notes (hereinafter referred to as draft) are lost when they are collected by collecting persons who are operating within the territory of Vietnam.

2. For draft relations with foreign elements, the application of international treaties and international commercial customs in the draft collection shall be performed in accordance with the provisions in Article 6 of the Law on assignment instruments.

Article 2. Subjects of application

1. Banks, other payment services suppliers which are permitted by the State Bank of Vietnam to provide the draft collection service

2. Organizations, individuals that are related to drafts to be collected by collecting persons

Article 3. Interpretation

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

1. Collecting person is banks or other payment services suppliers which are permitted by the State Bank of Vietnam to provide the draft collection service.

2. Collection asking customer is the legal beneficiary of the draft who hands over the draft to a collecting person for the collection of the amount stated in the draft.

3. Payer is the one who is obliged to make payment of the amount stated in the draft upon receiving the draft to be presented under the instruction in the draft collection Proxy of the collection asking customer.

4. Collecting person who accepts the draft collection proxy of the collection asking customer (hereinafter referred to as collection accepting person) is the collecting person to whom the collection asking customer hands his draft over and authorizes to collect the amount stated in the draft.

5. Collecting person to be asked for collection is any collecting person who takes part in the process of draft collection and is handed over with the draft for collection by the collection accepting person.

6. Draft collection proxy is a written document, which the collection-asking customer draws, grants authority to the collecting person to carry out the presentation and collection of the amount stated in the draft

Article 4. Fees of the draft collection service

General Managers (Managers) of banks, other payment services suppliers shall be entitled to provide for the fee level of the draft collection service supplied by their own units providing that it is in line with provisions of the State Bank of Vietnam on the collection of payment service fees through banks

Chapter II.

SPECIFIC PROVISIONS

Article 5. Conditions of drafts to be collected by collecting person

1. Draft to be collected by the collecting person must fully satisfy following conditions:

a. The draft is drawn, issued, guaranteed, assigned, mortgaged in accordance with provisions of the Law on assignment instruments, guiding documents of the Law on assignment instruments and other provisions of rated laws on preparation of accounting vouchers. The draft and subordinate sheet attached (if any) shall fully, clearly, accurately state the contents without any correction, erasure, wrinkling, smear, tearing, patching up, connecting in any form and must be supported by the signature and seal (if any) of the drawer (for bill of exchange) or of the issuer (for promissory note). There shall not exist the word phrase “To give up, to cancel” or other phrases with the similar meaning

b. In respect of a bill of exchange that needs accepting prior to payment, it must be the draft that has been signed for acceptance by the drawee in compliance with the form and contents provided for in Article 21 of the Law on assignment instruments.

 c. Payment term of the draft has not yet expired. The minimum effective payment time of the draft shall be agreed upon by the two parties providing that there will be enough required time to carry out the collection of draft under this Regulation.

d. The draft must not be in the list of drafts to be returned, to be refused for payment or not to be paid or to be informed by the Credit information Center of the State Bank of Vietnam of being lost.

2. Besides the conditions provided for in Paragraph 1 of this Article, the collection accepting person and collection asking customer shall be entitled to make further agreements about conditions of the draft if these agreements do not contrast with provisions of applicable laws

Article 6. Procedures of the delivery, receipt of the draft to be collected

1. In order to ask the collecting person for the draft collection, the collection asking customer shall state on the back of the draft with the word phrase “transfer for collection”; name of the collection accepting person; date of draft transfer; signature of collection asking customer and append unit’s stamp (if any). After that, drawing a draft collection proxy (according to Appendix No. 01) enclosed with the draft to be collected, the draft’s subordinate sheet and invoices, vouchers of goods delivery (if any) to hand over to the collection accepting person. The number of sheets of the draft collection proxy and mode of delivery, receipt of draft to be collected between the collection asking customer and the collection accepting person shall be stipulated by the collection accepting person providing that the delivery, receipt of the draft are controlled, treated in compliance with provisions of applicable laws.

2. Upon receipt of the draft collection proxy enclosed with the draft and invoices, vouchers of goods delivery (if any) from the collection asking customer, collection accepting person shall be responsible for inspection to ensure that: the draft satisfies conditions of collection in accordance with provisions in Article 5 of this Regulation; the matching and accuracy between elements stated in the draft collection proxy and the draft to be collected and its attached subordinate sheet (if any); collection asking customer shall be acknowledged in the assignment chain in accordance with provisions of the Law on Assignment Instruments and the draft to be assigned to the collection asking customer shall not contain the word phrase “assignment is forbidden” or other phrases with similar meaning.

3. After inspection, if the draft satisfies conditions of collection, collection accepting person shall acknowledge receipt of vouchers with customer by signing his name, appending seal on all sheets of the draft collection proxy; stating on the back of the draft the word phrase “accepting the transfer for collection”; the date (day, month, year) of transfer acceptation and stating in the book for following up drafts they accept to collect.

4. In order to carry out the draft collection under the draft collection proxy of collection asking customer, the collection accepting person shall present the draft to ask the payer to make payment in accordance with provisions of applicable laws or transfer the draft to another collecting person under the instruction on the draft collection proxy of the collection asking customer or to any collecting person who he finds appropriate (if the collection asking customer does not clearly state that in the Proxy) for collection of the amount stated in the draft.

Where the collection accepting person transfers the draft to another collecting person for collection, this transfer shall be made right within the day when he is authorized to collect the draft or in the morning of the following day at the latest. Procedures of the delivery, receipt of the draft to be collected between collecting units shall be agreed upon by the parties to ensure the promptness, convenience, safety and in line with provisions of applicable laws on draft transfer.

Article 7. Presentation of draft for payment

1. On the maturity date at the latest, the collecting person to be asked for collection shall present the draft at the payment place to ask the payer to make payment. The collecting person to be asked for collection may present the draft after the time limit stated in the draft, if the late presentation results from force majeure or objective obstacle. The time when the force majeure or objective obstacle occurs shall not be included in the payment period.

2. In respect of the draft with the payment period right after the presentation, the collecting person to be asked for collection must present it to ask the payer to make payment in due course in accordance with the instruction on the draft collection Proxy.

3. The collecting person to be asked for collection may present payment draft in form of registered mail sent via public postal service. Time of presentation of draft for payment in this case shall be determined under the date on the seal of the post office where the registered mail is sent.

4. If the presentation of the draft is not performed in due course because of the force majeure or objective obstacle, the collecting person to be asked for collection shall return the draft enclosed with a notice, which clearly states the reason thereof, to the collection accepting person (according to the Appendix No. 02). The return of draft in this case must be performed in the morning, at the latest, of the day after the day when the presentation of draft is not performed

5. Where the collection accepting person carries out the draft presentation for payment, the presentation shall be performed in accordance with provisions in Paragraph 1, 2, 3 and 4 of this Article.

Article 8. Payment of draft to be collected

1. Within a period of 3 working days from the receipt of the draft presented by the collecting person to be asked for collection, the payer shall make payment or refuse to make payment of the draft to the collection asking customer. Where the draft is presented in the form of registered mail via public postal service, this time limit shall begin from the date when the payer acknowledges receipt of the draft. The draft payment of the payer shall be performed by direct payment in cash to the collecting person to be asked for collection or preparing a Payment Order (Payment Proxy or other appropriate payment voucher) and asking account holder of the payer to deduct from the payer’s deposit account for payment of the amount stated in the draft

2. After a period of 3 working days since the receipt of the draft presented, if the payer fails to make payment of the draft (refuses to make payment, fails to prepare a payment order or has prepared the payment order but loses his payment capacity), the collecting person to be asked for collection shall carry out the draft treatment in accordance with Article 9 of this Regulation.

3. If the collection accepting person carries out the draft presentation and the draft is paid, depending on each specific case to determine measures for treatment accordingly:

a. Where the total amount stated in the draft is paid and the payer has enough money to make payment, the collection accepting person shall

- Use a sheet of the Payment Order as the voucher for Debiting against the payer’s deposit account. If the payer uses cash to make payment of the draft, the collection accepting person shall base on the Deposit Slip to Debit against the cash account; stamp the phrase “Totally paid” in the front side of the draft to be collected to deliver to the payer enclosed with the subordinate sheet and invoices, vouchers of delivery (if any).

- Use 01 sheet of the payment order or cash Deposit Slip (in case of cash deposit) as a voucher to Credit the deposit account of the collection asking customer or appropriate account (if the collection asking customer does not have an account); send Credit Advice to the collection asking customer

- Record out-entry in the book for following up drafts to be collected

b. Where only one part of the amount stated in the draft is paid and the payer has enough money to make payment, the collection accepting person shall:

- Perform the accounting in accordance with provisions in Point a, Paragraph 3 of this Article

- Stamp the phrase “already paid partially, amount......” in the front side of the draft. The collection accepting person shall retain the draft and the subordinate sheet attached (if any) and in the morning or the following working day at the latest shall return them to the collection asking customer with a notice clearly stating the reason of return (according to the Appendix No. 02). Invoices, vouchers of goods delivery (if any) shall be used in accordance with the instruction in the draft collection Proxy.

c. For the draft which the payer has prepared a payment Order to make payment, but the payer does not have enough money to make payment (partially or totally amount stated in the draft), the collection accepting person shall keep documents of draft collection in the file of unpaid drafts and at once inform the collection asking customer, the payer for their knowledge and taking treatment measure. When the payer has enough money for payment, the date of payment shall be stated in the front side of the draft for treatment in accordance with provisions at Points a or b Paragraph 3 of this Article. After the period of 3 working days since the receipt of the presented draft, the payer still does not have enough money to make payment of the draft, the collection accepting person shall treat the draft in accordance with Article 9 of this Regulation.

4. If the collecting person to be asked for collection carries out the draft presentation and the draft is paid:

a. At the collecting person to be asked for collection

- Upon receipt of the draft collection Proxy, draft enclosed with invoices, vouchers of goods delivery (if any) from the collection accepting person, collecting person to be asked for collection must check to ensure that the draft fully satisfies conditions of collection in accordance with applicable provisions; all contents on the draft collection Proxy have been clearly, fully and accurately stated; quality of invoices, vouchers of delivery attached is stated fully and in line with the draft collection Proxy.

- If, after the presentation, total amount stated in the draft is paid and the payer has enough money to make payment, the collecting person to be asked for collection shall

+ Basing on the Payment Order, Debit against the payer’s deposit account to transfer to the collection accepting person for making payment to the collection asking customer. Where the payer uses cash for draft payment, shall Debit against appropriate account (that was Credited previously upon collecting money from draft payer) to transfer for payment. Stamp the phrase “Already paid totally” in the front side of the draft to deliver to the payer enclosed with the subordinate sheet and invoices, vouchers of goods delivery (if any);

- Where only one part of the amount stated in the draft is paid and the payer has enough money to make payment, the accounting and voucher treatment shall be performed as for the case where the draft is paid totally, but the collecting person to be asked for collection shall retain the draft after it is stamped with the phrase “already paid partially, amount.......” and in the morning of the following working day at the latest shall return it to the collection accepting person with a notice clearly stating the reason of return (according to the Appendix No. 02). Invoices, vouchers of goods delivery (if any) shall be treated in accordance with the instruction in draft collection Proxy.

- For the draft which the payer has prepared a payment order to make payment, but the payer does not have enough money to make payment (partially or totally amount stated in the draft), the collecting person to be asked for collection shall keep documents of draft collection in the file of unpaid drafts and inform the collection accepting person, the payer for their knowledge within the day when the draft is not paid or in the morning of the following working day at the latest. When the payer has enough money for payment, the date of payment shall be stated in the front side of the draft for treatment in accordance with provisions at point c Paragraph 3 of this Article.

b. At the collection accepting person:

- Upon receipt of transfer voucher from the collecting person to be asked for collection, the collection accepting person must inspect the legality, validity of the Money Transfer Order, if correct, that voucher shall be used as a basis to Debit against appropriate account, Credit the deposit account of collection asking customer or the account “payables to customers” (if the collection asking customer does not have an account) and send a Credit Advice to collection asking customer.

- In case of receiving the notice of the draft return enclosed with the returned draft, the collection accepting person must immediately notify (by phone or other modes under agreement of parties) to the collection asking customer.

Article 9. Dealing with drafts which are refused or are not paid due to the payer’s insolvency

1. When a draft is refused or is not paid due to the payer’s insolvency, the collecting person to be asked for collection or collection accepting person (if the collection accepting person performs the presentation) shall request the payer to clearly state the refusal reason in writing and complete procedures to deliver the draft to the collection accepting person or to the collection asking customer enclosed with the notice of the return reason (according to the Appendix No. 02). Where the draft is presented in form of registered mail via public postal service, the payer shall return the refused draft to the collecting person with a document clearly stating the reason thereof.

Where the draft is refused, and the payer does not clearly state the reason thereof in writing, the collecting person to be asked for collection shall have the right to return the draft to the collection accepting person or the collection asking customer enclosed with a notice clearly stating “the draft was presented on.........but was refused and the payer did not clearly state the reason thereof in writing”.

2. The return of draft and notification of return reason shall be performed within the day when the draft is refused, is not paid or in the morning of the following working day at the latest.

Article 10. Controlling, dealing with lost drafts

1. When a draft is lost, its beneficiary must immediately give a written notice to the drawee, drawer or issuer. The beneficiary must inform of the case where the draft is lost and clearly state all information, data concerning the lost draft: Full name, address of the issuer, drawer, drawee, payment place, amount stated in the draft, date of issue and payment period of the draft and take responsibility for the honesty of his notification. The beneficiary shall inform by phone or other modes if it is agreed upon by the parties.

Where the lost draft is the bill of exchange, the beneficiary shall directly or through his previous draft assigners, ask the drawer to give a notice of the payment suspension for the lost draft to the drawee.

2. Where a person who loses the draft is not the beneficiary, he must immediately give a notice to the beneficiary for his treatment under Paragraph 1 of this Article.

3. When the drawee, drawer, issuer receive the notice of the draft loss, they must at once verify information concerning the lost draft and enter that information into the book for following up drafts which have been notified to be lost. The drawee, issuer shall not be paid for the draft to be notified to be lost

Where the draft that has been notified to be lost is presented for payment, the drawee, issuer shall be responsible for drawing a minutes to seize and keep that draft and inform the person who issued the notice of the draft loss for settlement.

4. The drawee, issuer shall not be responsible for damages resulting from the misuse of the lost draft if that draft has been presented and paid in accordance with provisions of applicable law prior to the receipt of the loss notice.

If, after receiving the notice of the draft loss, the drawee and issuer still make payment for that draft, then they shall be responsible for damage compensation to the beneficiary

5. The drawee, the drawer, issuer shall be responsible for archive of information of the draft to be notified to be lost and giving a written notice to Credit Information Center of the State Bank of Vietnam

6. The collecting person shall regularly look up, update information of the draft that has been notified to be lost through the Credit Information Center of the State Bank of Vietnam and shall not be permitted to collect the drafts which have been notified to be lost

Where, after being handed over with the draft, the collecting person loses the draft during the collection process, he must immediately inform the collection asking customer for treatment in accordance with Paragraph 1 of this Article.

Article 11. Right and responsibility of the collection asking customer

1. Collection asking customer shall have the right

a. To ask the collecting person to guide, clearly explain provisions of applicable laws on procedures of draft collection

b. To ask the collecting person to make compensation for damages in case where the draft is not paid due to the collecting person’s fault

2. Collection asking customer shall be responsible

a. to correctly, fully comply with provisions on procedures of draft collection through collecting person stipulated by the State Bank of Vietnam and by the collecting person

b. To follow up the payment of the draft to be collected to coordinate with the collecting person to timely deal with obstacles; to fully, timely pay fees of draft collection service and other related fees stipulated by the collecting person

c. To receive again drafts to be collected which are returned by the collecting person in following cases: the Draft does not satisfy fully conditions of collection as provided for in Article 5 of this Regulation; draft is not presented, is refused for payment; is paid partially; the draft is not paid due to the payer’s insolvency, due to force majeure or objective obstacles.

d. For losses resulting from unclear, insufficient or inaccurate statement in the draft collection Proxy

Article 12. Right and responsibility of the collecting person

1. The collecting person shall have the right:

a. To perform some following rights of the beneficiary who asks for the draft collection: Right to present draft for payment; right to receive the amount stated in the draft; right to hand the draft over to other collecting person for collection

b. To refuse to collect the draft which is not qualified for collection in accordance with provisions in Article 5 of this Regulation.

c. To return the draft to the collection asking customer in following cases: where the draft can not be presented, draft is refused for payment, is paid partially, is not paid due to the payer’s insolvency or due to force majeure or objective obstacles. The collecting person shall not take any responsibility for the lateness, or damages causing to related parties when the draft is not paid because it is returned in above cases.

d. To collect fees of draft collection service and other related fees in accordance with the fee levels listed in the fee tariff of payment services at their unit. In case where the draft is returned in accordance with provisions in Point c, Paragraph 1 of this Article, the collecting person shall not have to refund the collected service fees.

2. The collecting person shall be responsible:

a. To collect draft in lieu of customers in accordance with provisions of applicable laws

b. To correctly, fully comply with the contents stated in the draft collection proxy and explain the collection asking customer about provisions on procedures of draft collection;

c. To hand over drafts and subordinate sheets attached (if any) to the payer after he has paid the entire amount stated in the draft

d. To timely inform the collection asking customer or collection accepting person in  cases where the collection of draft cannot be performed because the draft can not be presented; the draft is refused for payment, is paid only partially, is not paid due to the payer’s insolvency, due to force majeure, or objective obstacles

dd. To make damage compensation to the collection asking customer, if the collecting person does not present the draft in due course to ask for payment or fails to present the draft in accordance with the instruction in draft collection Proxy. In this case, the amount which the collecting person must compensate the collection asking customer shall be limited to be equal to the amount stated in the draft at the maximum.

Chapter III.

 IMPLEMENTING PROVISIONS

Article 13. Guidance on the implementation and execution

1. Chairman of the Board of Directors, General Manager (Manager) of banks, other payment services suppliers which are permitted to provide draft collection service shall be responsible for guiding, organizing the implementation for their subsidiary units and customers, ensuring that the draft collection through the collecting person shall be performed promptly, quickly, accurately and safely in terms of asset.

2. Organizations, individuals that are related to the draft to be collected through the collecting person should report any obstacle that may arise during the implementation of this Regulation to their collecting person for treatment; where the collecting person has any obstacle that can not be treated, he shall be responsible for reporting to the State Bank branches in provinces, cities under the central Government’s management in the same area for treatment; where the State Bank branches in provinces, cities under the central Government’s management can not treat those obstacles, they shall be responsible for reporting to the State Bank of Vietnam for study and solution.

Article 14. Dealing with violations

Organizations, individuals committing violation acts relating to this Regulation shall be, depending on the nature, seriousness of violation, subject to discipline, administrative punishment or prosecuted for criminal liability; if causing any damage, they shall be subject to the compensation in accordance with provisions of applicable laws.

APPENDIX NO. 01:

SAMPLE OF DRAFT COLLECTION PROXY

Name of the collection accepting person:...............................................................................

Address:...............................................................................................................................

PROXY OF DRAFT COLLECTION                                                               No.:....................

Drawn on ....../....../......

Name of the collection asking customer:................................................................................

Number of ID:.......................................................................................................................

Address:...............................................................................................................................

Authorizes............................................             carry out the presentation of and collection of the amount stated in to the bill of exchange/promissory note No................. drawn on........

Amount to be asked for collection: (in number):......................................................................

                                                      (in words):.......................................................................

Vouchers enclosed with the draft include:...............................................................................

Date of draft presentation to ask for payment: /..../....../ ........... at (place):..............................

Payer:...................................................................................................................................

Address:...............................................................................................................................

Account number........................ at........................................................................................

When the money collection is completed, please Credit the account No................ at ............... or give a notice to us under the following address:

Where the draft collection is not performed, please give a notice to us under the following address:........................................... and by the mode of.....................

Where the draft is paid partially, please deal with invoices, vouchers of goods by....................

For the collecting person only

Collection accepting person

Received money transfer at...........o’clock..... date........

Recorded in the accounting book on........../......../

Note: The collecting person may provide for further contents or rearrange elements on the sample draft collection proxy in line with his unit’s requirement, but he must ensure that this sample Proxy contains sufficient contents as provided for.

APPENDIX NO. 2:

NOTICE OF THE RETURN OF THE DRAFT TO BE COLLECTED

Collecting person (Name of the unit which draws the notice)

No………………………..

Notice of the return of the draft to be collected

Drawn on...../....../......

To:........................

We would like to return ........................ the bill of exchange/promissory note No..... issued on............ and are authorized to collect under the draft collection Proxy No. ............. dated.................

Collection asking customer is:...............................................................................................

Address................................................................................................................................

Reason for the return of draft.................................................................................................

This notice is sent at.......... hour......... minutes........... on ...........

Note: It is required to draw a separate notice for each draft to be returned (except for the case where the drafts are returned to the same collection asking customer with the same reason)