Nghị định 101/2012/ND-CP

Decree No. 101/2012/ND-CP of November 22, 2012, non-cash payments

Nội dung toàn văn Decree No. 101/2012/ND-CPnon-cash payments


THE GOVERNMENT
--------

SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
----------------

No. 101/2012/NĐ-CP

Hanoi, November 22, 2012

 

DECREE

NON-CASH PAYMENTS

Pursuant to the Law on Government organization dated December 25th 2001;

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

Pursuant to the Law on credit institutions No. 47/2010/QH12 dated June 16th 2010;

At the proposal of the Governor of the State bank of Vietnam;

The Government promulgates a Decree on non-cash payments,

Chapter 1.

GENERAL REGULATIONS

Article 1. Scope of regulation

This Decree deals with the non-cash payments, including: opening and using payment accounts, non-cash payment services, payment intermediary services, organizing, managing, and supervising the payment systems.

Article 2. Subjects of application

1. Providers of non-cash payment services.

2. Providers of payment intermediary services

3. Users of non-cash payment services and payment intermediary services (hereinafter referred to as service users)

Article 3. Payments in foreign currencies and international payments

1. Payments in foreign currencies and international payments must be made in accordance with laws on foreign currencies management and international agreements on payment to which Vietnam is a signatory.

2. Apply the international practice to the international payments that are not regulated by Vietnam’s law,  as long as they are not at odds with fundamental principles of Vietnam’s law.

Article 4. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Non-cash payment services (hereinafter referred to as payment services) includes the payment services via payment accounts and some payment services without payment accounts of clients.

2. International payments are payments that are made by parties, at least one among which has payment accounts outside Vietnam’s territory.

3. Providers of non-cash payment services (hereinafter referred to as providers of payment services) include: the State bank of Vietnam (hereinafter referred to as the State bank), banks, branches of foreign banks, people's credit funds, microfinance institutions, and other organizations.

4. Providers of payment intermediary services are organizations that are not banks and are issued with the License to provide payment intermediary services by the State bank.

5. Payment account owner is the person that opens the account. The account owner of an individual’s account is the person that opens the account.  The owner of an account of an organization is the legal representative or authorized representative of the organization that opens such account.

Article 5. State management responsibility of the State bank for the non-cash payment

1. Promulgate or request competent agencies to promulgate legal documents on non-cash payments.

2. Organize, manage, operate, and supervise the national payment system; participating in the organization and supervision of the operation of payment systems in the economy.

3. Issue and revoke the Licenses to provide payment intermediary services, and supervise the provision of payment intermediary services.

4. Carry out inspection, supervision, and handle the violations committed by organizations and individuals relevant to non-cash payments.

5. Manage and supervise the international cooperation in payment.

Article 6. Prohibited acts

1. Forging, falsifying, replacing payment facilities, payment documents; storing, circulating, transferring, and using fake payment facilities.

2. Intruding or attempting to intrude, sabotage, or illegally changing the software and electronic database used in payment; taking advantage of the computer network errors to make profit.

3. Provide inaccurate information during the provision and use of payment services and payment intermediary services.

4. Illegally revealing and providing the information about the deposit of account owners.

5. Opening or holding anonymous or impersonation payment accounts.

Chapter 2.

OPENING AND USING PAYMENT ACCOUNTS

Article 7. Opening and using payment accounts

The payment accounts must be opened and used under contracts signed by relevant parties, specifying the rights and obligations of the parties in accordance with law.

Article 8. Opening and using payment accounts of the State bank

1. The State bank shall open payment accounts for State Treasuries, credit institutions, and branches of foreign banks as prescribed in Clause 2 and Clause 3 Article 27 of the Law on the State bank of Vietnam, and Article 101, Article 109, Article 114, Clause 4d Article 118, and Article 121 of the Law on credit institutions.

2. The State bank shall open payment accounts for State Banks of other countries, foreign banks, international monetary institutions, and international banks in accordance with the International Agreements to which Vietnam is a signatory. In case Vietnam is not a signatory, the payment accounts shall be opened in accordance with the Prime Minister’s decisions.

3. The State bank shall opens payment accounts at State Banks of other countries, open payment accounts and make payments overseas in accordance with the International Agreements to which Vietnam is a signatory.

Article 9. Opening and using payment accounts among credit institutions

1. Payment accounts among credit institutions must be opened and used in accordance with the Law on credit institutions. The payment accounts among credit institutions only serve the payment, not other purposes.

2. The State bank shall allow banks and branches of foreign banks that engage in the foreign currencies market to open payment accounts in foreign currencies. The payment accounts in foreign currencies must be opened and used in accordance with laws on foreign currencies.

Article 10. Opening and using payment accounts for organizations and individuals that are not credit institutions

1. Banks and branches of foreign banks shall guides clients to open payment accounts in accordance with the regulations of the State bank and other relevant laws.

2. The account openers being individuals must be capable of civil acts; or people at the age of 15 to under 18 that have their own property. Minors must open payment accounts with their guardians as prescribed by law.

3. Shared payment accounts are payment accounts undersigned by at least two subjects.. Owners of shared payment accounts are organizations or individuals. The use purposes of shared payment accounts, rights and obligations of owners of shared payment accounts and the regulations on the use of shared accounts must be specified in writing.

Article 11. Using and authorizing the use of payment accounts

1. Account owners may use their payment accounts for crediting, withdrawing cash, and request the providers of payment services to make legitimate payment.  Account owners are entitled to request providers of payment services to provide information about the transactions and the balance of their payment accounts.

2. Account owners may authorize other people in writing to use payment accounts as prescribed by law.

3. Account owners must comply with the regulations on opening and using payment accounts of providers of payment services, and have enough money in their payment accounts to execute the payment order, unless otherwise agreed with providers of payment services.

4. Providers of payment services must promptly and completely execute the valid payment orders of account owners.

5. Providers of payment services are entitled to refuse invalid payment orders of account owners, or there is not enough money in payment accounts, unless otherwise agreed. The providers of payment services must immediately explain their refusal to account owners.

Article 12. Suspending and blocking payment accounts

1. A payment account shall be partly or totally suspended when the at the request of the account owner or as agreed by the account owners and the provider of payment services.

2. A payment account shall be partly or totally blocked in the following cases:

a) Competent agencies requests in writing as prescribed by law;

b) The provider of non-cash payment intermediary services finds mistakes during the money transfer;

c) When the provider of payment services detects signs of fraud and violations of laws on payment;

d) There are disputes over shared payment account owners.

3. The payment account is blocked upon the decision of the competent agency as prescribed by law, or the disputes prescribed in Clause 2 this Article are settled.

4. If the payment account is illegally blocked and cause damage to the account owner, the party that make the order to block such account must pay compensation as prescribed by law.

Article 13. Closing payment accounts

1. A payment account is closed when:

a) The account owner requests, and has fulfilled the obligations related to the payment account;

b) The account owner being an individual is dead, lost, or incapable of civil acts;

c) The organization that has the payment account is shut down as prescribed by law;

d) The account owner violates the contract to open and use the payment account signed with the providers of payment services;

dd) The account owner or the provider of payment services violates Article 6 of this Decree and other laws on payment;

e) Other cases as prescribed by law.

2. When closing payment accounts, the remainder shall:

a) Paid at the request of the account owner or their heir, the legal representative of the heir in case the account owner being an individual is dead, lost, or at the request of the legal guardian in case the account owner being a individual is not capable of civil acts;

b) Be paid under the Court’s Decision;

c) Settled as prescribed by law in case the beneficiary of the remainder in the account does not come to take if after being informed.

Chapter 3.

PAYMENT SERVICES AND PAYMENT INTERMEDIARY SERVICES

Article 14. Payment services

1. Payment services via the clients’ payment accounts, including:

a) Provision of payment facilities;

b) Provisions of payment services via cheques, payment order, collection order, bank cards, letter of credit, bank transfer, payment authorization;

c) Other payment services.

2. Payment services via the clients’ payment accounts:

a) The State bank shall provide the payment services for the clients that open payment accounts at the State bank;

a) Commercial bank, branches of foreign banks, banks for social policies shall provide all payment services prescribed in Clause 1 this Article;

c) Cooperative banks may provide some payment services prescribed in Clause 1 this Article after obtaining the approval from the State bank.

3. Payment services via clients’ payment accounts, including: money transfer services, payment authorization, and other payment services.

4. Payment services without clients’ payment accounts:

a) The banks prescribed in Clause 2 this Article may provide payment services without payment accounts for their clients;

b) The people's credit funds may provide money transfer services, and provided services of authorized payment and authorized collection for their members;

c) The microfinance institutions may provide services of authorized collection, authorized payment, and money transfer to microfinance clients

d) Other organizations that provide payment services without payment accounts must comply with the regulations of the State bank.

Article 15. The payment intermediary services and conditions thereof

1. Payment intermediary services include:

a) Provision of electronic payment facilities;

b) Payment service support;

c) Other payment intermediary services as prescribed by the State bank.

2. Requirements for providing payment intermediary services

The organizations not being banks that wish to provide payment intermediary services must satisfy the following requirements:

a) Having a License for establishment or Certificate of business registration issued by competent State agencies, in which the provision of payment intermediary services is one of their primary businesses;

b) Having an approved plan for payment intermediary service provisions in accordance with the regulations on investment authority prescribed in their charter;

c) Having at least 50 billion VND of charter capital;

d) Requirements of human resources:

The legal representative, the General Director (Director) of the applying organization must have proficiency or experience in business administration or their discipline.

The employees that run the payment intermediary services must be proficient in their job;

dd) The technical and professional conditions include: facilities and technical infrastructure that suit the requirements for providing payment intermediary services and the regulations of the State bank; the back-up technical system independent from the primary system that ensures the safe and continuous service provision when the primary system has problems; the technical and professional process in the provision of payment intermediary services that ensures the safety, security, and suite the laws on electronic transaction; the process of internal inspection of payment intermediary services in electronic transactions as prescribed by current law.

Article 16. The procedure and documents for issuing, revoking, and reissuing the Licenses to provide payment intermediary services

1. The procedure for issuing the License

a) The applicant shall send the dossier of application for the License (including 05 sets), by post or directly, to the State bank as prescribed in Clause 2 this Article. The applicant is responsible before law for the accuracy of the information provided;

b) Based on the dossier of application, the State bank shall examine the dossier according to the conditions in Clause 2 Article 15 of this Decree;

c) Within 60 days as from receiving the complete and valid dossier, the State bank shall appraise and issue the License, or the written refusal to issue the license and specify the reasons;

d) The organization that is issued with the License to provide payment intermediary services must pay fees as prescribed by law.

2. 2. The dossier of application for the Licenses to provide payment intermediary services includes:

a) The written application for the License according to the form provided by the State bank;

b) The Record or the Resolution of the Member assembly meeting, the Board of Directors meeting (or shareholder meeting as prescribed in the Charter of the organization) that pass the scheme for the provision of payment intermediary services;

c) The scheme for the provision of payment intermediary services;

d) The description of technical solution and the written acceptance of technical experiment with another organization;

dd) The documents about personnel: the résumés, the authenticated copies of the qualifications proving the capability and proficiency of the legal representative, General Director (Director), Deputy General Director (Deputy Director) and the senior officers that execute the Scheme for the provision of payment intermediary services;

e) The License for establishment or Certificate of business registration issued by competent State agencies, the Charter of organization and operation (authenticated copy);

3. License period

The period of the License is 10 years as from the day the organization is issued with the License by the State bank.

4. Revoking the License

a) The organization shall have its License revoked, and have to terminate the provision of payment intermediary services in one of the following cases:

The organization fails to commence the provision of licensed payment intermediary services without legitimate reasons within 06 months as from the date of issue of the License; the organization fails to rectify the violations within 03 months as from the State bank notifies the organization of one of the violations of the requirements prescribed in Clause 2 Article 15 of this Decree, and requests it to rectify; the organization is dissolved or bankrupt as prescribed by relevant laws.

b) The procedure for revoking the License

When the licensed organization commits one of the violations prescribed in Point a Clause 4 this Article, the State bank shall send written notification to the licensed organization of the revocation of the License, and provide the explanation. The State bank shall announce the License revocation of such organization on the State bank’s website.

When receiving the written notification from the State bank of the revocation of the License to provide payment intermediary services, the organization that has its License revoked must immediately stop providing payment intermediary services.

Within 30 days as from receiving the notification from the State bank, the organization that has its license revoked must send written notification to relevant organizations and individuals to liquidate the contracts and settle the obligations among them.

5. Reissuing the License

Within 30 days as from receiving the application for reissuing the License, the State bank shall consider and issue the License, or the written refusal to issue the license enclosed with the explanation in one of the following cases:

a) The License expires

At least 60 days before the License expires, the organization must apply for reissuing the License and a copy of the unexpired License to the State bank.

b) The License is revoked

After 6 months as from the reasons for revoking the License are completely rectified, the organization that had its Licensed expired may send an explanation and application for reissuing the License to the State bank.

c) Amending and supplementing the License

If the organization wishes to change the content of the License, its must make and send a written request, specifying the amendment and the reason for it, enclosed with a copy of the unexpired License, to the State bank.

d) In case the License in lost or damaged, the organization must send a written application for reissuing the License and, and the explanation, to the State bank.

Article 17. Service charges

1. The providers of payment services and the providers of payment intermediary services must fix and post their service charges.

2. If the banking activities are unpredictable, the State bank shall provide a mechanism for determining the charges for payment services and charges for payment intermediary services.

Article 18. Compensation

The providers of payment services and providers of payment intermediary services must pay compensation for damage if they violate the agreements among the relevant parties, or violate laws.

Article 19. Dispute settlement

If there is no agreement on the dispute settlement in the contract, the dispute shall be settled as prescribed by law.

Article 20. Ensuring the safe payment

 Providers of payment services and providers of payment intermediary services must take measures for ensuring the safe payment as prescribed by law. Service users must implement the safety measures when making payment guided by the service providers.

Chapter 4.

INFORMATION, REPORTS, AND INFORMATION SECURITY

Article 21. The rights about information and reports

1. The State bank is entitled to request providers of payment services and providers of payment intermediary services to provide periodic and irregular information about the payments.

2. Providers of payment services and providers of payment intermediary services are entitled to request their clients to provide relevant information.

Article 22. Obligations about information and reports

1. Providers of payment services and providers of payment intermediary services are obliged by law to provide information for competent State agencies.

2. Providers of payment services and providers of payment intermediary services are obliged by law to provide information about the transactions and the payment account balance for account owners as agreed.

Article 23. Information security

1. The right to refuse to provide information

Providers of payment services and providers of payment intermediary services are entitled to refuse the request for information about the account owners, transactions, and the balance in their clients’ payment accounts, unless such request is made by competent State agencies as prescribed by law, or the information provision is agreed by the account owner.

2. Obligation to secure information

Providers of payment services and providers of payment intermediary services are responsible for secure the information related to the account owners, the transactions, and the balance on their clients’ payment accounts, unless otherwise prescribed by law.

Chapter 5.

ORGANIZING, MANAGING, OPERATING, AND SUPERVISING THE PAYMENT SYSTEMS

Article 24. Organizing, managing, operating, and supervising the National payment system

1. The State bank shall organize, manage, operate, and supervise the National payment system to ensure the steadiness, safety, and efficiency of payment activities in the banking system, contributing to the stable development and safety of the National financial system

2. The State bank shall promulgates the conditions and procedure for joining the National payment system, the measures for ensuring the safety of the National payment system.

Article 25. Organizing, operating, and supervising internal payment systems

1. Providers of payment services shall organize, operate, and supervise their internal payment system in order to ensure the provision of safe and quality payment services via accounts for their clients, and efficiently regulate the capital in the system.

2. Provider of payment services violates shall introduce the procedures and measures of ensuring the safety of the internal payment system.

Article 26. Supervising the payment systems in the economy

1. The State bank shall formulate the strategies, policies, and regulations on supervising the payment systems in order to ensure the stable, safe, and effective operation of the payment systems in the economy.

2. The State bank shall introduce the criteria and determine the important payment systems under the supervision of the State bank.

3. The State bank shall supervise the payment systems by remote supervision, on-the-spot inspection, and other measures if necessary.

4. The organizations that operate the payment systems must comply with the regulations and recommendation on the supervision of the State bank; promulgate the internal regulation on risk management and ensuring the continuous operation of the system.

Chapter 6.

IMPLEMENTATION PROVISIONS

Article 27. Effects

1. This Decree takes effect on March 26th 2013.

2. This Decree supersedes the Government's Decree No. 64/2001/NĐ-CP dated September 20th 2001, on making payments via provider of payment services.

Article 28. Implementation responsibilities

1. The Governor of the State bank is responsible for guiding the implementation of this Decree.

2. The Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, Presidents of People’s Committees of central-affiliated cities and provinces are responsible for implementing this Decree./.

 

 

FOR THE GOVERNMENT
THE PRIME MINISTER




Nguyen Tan Dung

 


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