Luật 49/2005/QH11

Law No. 49/2005/QH11 of November 29,2005, on Negotiable instruments.

Nội dung toàn văn Law No. 49/2005/QH11 of November 29,2005, on Negotiable instruments.


NATIONAL ASSEMBLY
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No. 49/2005/QH11

Hanoi, November 29,2005

 

LAW

ON NEGOTIABLE INSTRUMENTS

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended by the Resolution 51/2001/NQ-QH10 bổ sung điều của Hiến pháp nước cộng hoà xã hội chủ nghĩa Việt Nam năm 1992">51/2001/QH10 passed by Legislature X of the National Assembly at its 10th Session on 25 December 2001;
This Law regulates negotiable instruments.

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Ordinance regulates negotiable instrument relationships with respect to issuance, acceptance, guarantee, endorsement, pledge, collection, payment, recourse, and initiation of legal action. Negotiable instruments stipulated in this Law include bills of exchange, promissory notes, cheques and other negotiable instruments, excluding long-term negotiable instruments issued by organizations aimed at raising capital on the market.

Article 2. Applicability

The Law shall be applicable to Vietnamese organizations and individuals and foreign organizations and individuals involved in negotiable instrument relationships in the territory of the Socialist Republic of Vietnam.

Article 3. Grounds for issue of negotiable instruments

1. Drawers and issuers may issue negotiable instruments on the basis of a transaction of purchase or sale of goods, provision of services or lending between organizations and individuals; a lending transaction between a credit institution and an organization or individual; a transaction of payment and a transaction of donation in accordance with law.

2. The negotiable instrument relationships stipulated in this Law are independent and are not dependent on a transaction which is the basis for issuance of a negotiable instrument stipulated in clause 1 of this article.

Article 4. Interpretation of terms

In this Law, the following terms shall be construed as follows:

1. Negotiable instrument means a valuable paper recording an order or undertaking to pay unconditionally a specific sum within a fixed time.

2. Bill of exchange means a valuable paper created by a drawer, requesting the drawee to pay unconditionally a specific sum upon demand or upon a fixed time in the future to the beneficiary.

3. Promissory note means a valuable paper created by an issuer, undertaking to pay unconditionally a specific sum upon demand or upon a fixed time in the future to the beneficiary.

4. Cheque means a valuable paper created by a drawer, ordering the payer being a bank or an organization providing payment services, which is licensed by the State Bank of Vietnam, to pay a fixed sum from its account to the beneficiary.

5. Drawer means the person creating and signing to issue a bill of exchange or cheque.

6. Drawee means the person liable to pay the sum stated in a bill of exchange to the order

of the drawer.

7. Acceptor means the drawee upon its signing for acceptance of a bill of exchange.

8. Beneficiary means the owner of a negotiable instrument in the capacity of one of the following persons:

(a) Any person being paid the sum stated in the negotiable instrument under the instruction of the drawer or issuer;

(b) Any person to whom the negotiable instrument is endorsed [prior to its maturity for payment] in the forms of endorsement specified in this Law;

(c) Any person as the bearer of the negotiable instrument recording the payment to be made to the bearer.

9. Issuer means the person creating and signing to issue a promissory note.

10. Related person means a person involved in a negotiable instrument relationship by way of signing the negotiable instrument in the capacity of a drawer, issuer, acceptor, endorser or guarantor.

11. Collector means a bank or organization providing payment services which is licensed by the State Bank of Vietnam to provide services of accepting negotiable instruments.

12. Issuance means the initial creation, signing and handing-over of a negotiable instrument by the drawer or the issuer to the beneficiary.

13. Endorsement means the transfer by the beneficiary of a negotiable instrument to the endorsee in the forms of endorsement specified in this Law.

14. Discount of a negotiable instrument means the purchase of the negotiable instrument by a credit institution from the beneficiary prior to its maturity for payment.

15. Re-discount of a negotiable instrument means the purchase of the negotiable instrument, which has already been discounted by another credit institution, by the State Bank of Vietnam or by a credit institution prior to its maturity for payment.

16. Acceptance means the undertaking of the drawee to pay a part or all of the sum stated in the bill of exchange upon maturity by signing acceptance on the bill of exchange in accordance with the provisions of this Law.

17. Cheque Clearing Centre means the State Bank of Vietnam or another organization which is licensed by the State Bank of Vietnam to organize and preside over the exchange and clearance of cheques and finalization of financial obligations arising from cheque clearing to members being banks or organizations providing payment services which are licensed by the State Bank of Vietnam.

18. Signature means the signature on a negotiable instrument directly made by hand by the person having rights and obligations with respect to the negotiable instrument or by a person who is authorized in accordance with law. The signature of the representative of an organization on a negotiable instrument must be enclosed with a seal.

19. Negotiable instrument relationship means the relationship between organizations and individuals with respect to issuance, acceptance, guarantee, endorsement, pledge, collection, payment, recourse, and initiation of legal action in relation to the negotiable instruments.

Article 5. Application of the Law on Negotiable Instruments and relevant laws

1. Parties to negotiable instrument relationships must comply with this Law and relevant laws.

2. The Government shall, on the basis of the principles of this Law, specify the application of this Law to other negotiable instruments.

Article 6 Application of international treaties and international commercial practices with respect to negotiable instrument relationships involving foreign elements

1. Where an international treaty of which the Socialist Republic of Vietnam is a member contains provisions which are different from the provisions in this Law, the provisions of such international treaty shall prevail.

2. In the case of negotiable instrument relationships involving foreign elements, the parties to the negotiable instrument relationship may agree to apply international commercial practices, including the International Chamber of Commerce's Rules on uniform practice for documentary credits and the Uniform Rules on collection, and other relevant international commercial practices in accordance with regulations of the Government.

3. Where a negotiable instrument is issued in Vietnam but is accepted, guaranteed, endorsed, pledged, collected, paid or subject to recourse or legal action in another country, such negotiable instrument must be issued in accordance with the provisions of this Law.

4. Where a negotiable instrument is issued in another country but is accepted, guaranteed, endorsed, pledged, collected, paid, or subject to recourse or legal action in Vietnam, the acceptance, guarantee, endorsement, pledge, collection, payment, recourse or initiation of a legal action shall be subject to the provisions of this Law.

Article 7. Periods related to negotiable instruments

1. The time limit for paying [a negotiable instrument], sending a recourse notice or initiating legal action where there is a dispute in relation to the negotiable instrument relationship, shall include both public holidays and weekends. If the last day of the period falls on a public holiday or weekend, then it shall be the working day following such public holiday or weekend.

2. The specific period for payment of each negotiable instrument shall be determined and recorded by the drawer or the issuer on the negotiable instrument in accordance with this Law.

3. The time limit for sending a recourse notice or initiating legal action when a negotiable instrument is dishonoured by non-acceptance or by non-payment shall be subject to the provisions of articles 50 and 78 of this Law.

Article 8. Payment sum in negotiable instruments

The payment sum in a negotiable instrument must be written in figures and in words.

Article 9. Negotiable instruments in which the payment sum is written in a foreign currency

1. The payment sum in a negotiable instrument may be written in a foreign currency in accordance with the provisions of the law on foreign exchange control.

2. Negotiable instruments in which the payment sum is written in a foreign currency in accordance with the provision of clause 1 of this article may be paid in foreign currency when the last beneficiary is permitted to receive foreign currency in accordance with the provisions of the law on foreign exchange control.

3. With respect to negotiable instruments in which the payment sum is written in a foreign currency but the last beneficiary is not permitted to receive foreign currency in accordance with the provisions of the law on foreign exchange control, the sum in the negotiable instrument shall be paid in Vietnamese Dong at the exchange rate published by the State Bank of Vietnam on the date of payment or at the rate for foreign currency trading published by the paying bank on the date of payment in the case where the bank makes the payment.

Article 10. Language in negotiable instruments

Negotiable instruments must be created in the Vietnamese language, except for negotiable instrument relationships involving foreign elements in which case the negotiable instruments may be created in a foreign language as agreed by the parties.

Article 11. Signatures constituting sufficiently binding obligations

1. A negotiable instrument must contain the signature of the drawer or of the issuer.

2. A related person shall only be bound by a negotiable instrument when the negotiable instrument or an additional sheet attached thereto contains the signature of such related person or of his or her proxy in the capacity of a drawer, issuer, acceptor, endorser or guarantor.

Article 12. Forged signatures and signatures of unauthorized persons

When a negotiable instrument contains a forged signature or the signature of an authorized person, such signature shall not be valid; the signatures of other related persons on the negotiable instrument shall remain valid.

Article 13. Loss of negotiable instruments

1. Where a negotiable instrument is lost, the beneficiary must immediately notify in writing the drawee, the drawer or the issuer. The beneficiary must notify clearly the circumstances in which the negotiable instrument was lost and shall be responsible before the law for the truthfulness of such notice. The beneficiary may notify the loss of the negotiable instrument by telephone and other direct methods if so agreed by the parties.

Where the person who is not the beneficiary loses a negotiable instrument, he or she must immediately notify the beneficiary.

2. Where a negotiable instrument is lost prior to its maturity for payment, the beneficiary shall be entitled to request the drawer or issuer to re-issue a substitute negotiable instrument with the same contents as the lost negotiable instrument after the beneficiary has notified the loss of the negotiable instrument and made a written undertaking to make payment on behalf of the drawee or issuer if the negotiable instrument which has been notified as lost is presented by a lawful beneficiary for payment.

3. Upon receipt of notice of loss of a negotiable instrument in accordance with clause 1 of this article, the issuer and the drawee shall not be allowed to pay such negotiable instrument. The check and control of negotiable instruments which have been notified as lost shall be subject to regulations of the State Bank of Vietnam.

4. Where a lost negotiable instrument is misused for payment before the drawee or the issuer receives notice of loss of the negotiable instrument, the drawee or issuer shall be relieved from his or her responsibility if he or she has conducted properly the check and control and paid the negotiable instrument in accordance with the provisions of this Law.

5. The drawee or issuer shall be obliged to compensate the beneficiary for damage and loss if the drawee or issuer paid the negotiable instrument after receipt of notice of loss of the negotiable instrument.

Article 14. Damaged negotiable instruments

1. When a negotiable instrument is damaged, the beneficiary shall be entitled to request the drawer or issuer to re-issue a substitute negotiable instrument with the same contents.

2. The drawer or issuer shall be obliged to re-issue a negotiable instrument after receipt of the damaged negotiable instrument if such negotiable instrument has not fallen due and contains all information or there is evidence to prove that the bearer of the damaged negotiable instrument is the lawful beneficiary of the negotiable instrument.

Article 15. Acts which are prohibited

1. Forging a negotiable instrument, amending or erasing items on a negotiable instrument.

2. Deliberately assigning or accepting assignment [of a negotiable instrument], or presenting for payment a negotiable instrument which was forged, amended or the items of which were erased.

3. Signing a negotiable instrument without authorization or forging the signature on a negotiable instrument.

4. Deliberately assigning a negotiable instrument when aware that the period for payment of such negotiable instrument has expired or such negotiable instrument was dishonoured by non-acceptance or by non-payment or has been notified as lost.

5. Deliberately drawing a negotiable instrument without the ability to pay it.

6. Deliberately drawing a cheque after the right to draw cheques has been stopped.

Chapter II

BILLS OF EXCHANGE

Section 1. ISSUANCE OF BILLS OF EXCHANGE

Article 16. Contents of bills of exchange

1. A bill of exchange must include the following contents:

(a) The words "Bill of Exchange" written on the front of the bill of exchange;

(b) An order for unconditional payment of a fixed sum of money;

(c) The period for payment;

(d) The place for payment;

(dd) The name of the drawee being an organization or the full name of the drawee being an individual, and the address of the drawee;

(e) The name of the beneficiary being an organization or the full name of the beneficiary being an individual who is designated by the drawer or in favour of whom [the drawer] has made the request for payment of the bill of exchange to the order of the beneficiary or the request for payment of the bill of exchange to the bearer1 .

(g) The place and date of signing and issuance;

(h) The name of the drawer being an organization or the full name of the drawer being an individual, and the address of the drawer.

2. A bill of exchange which omits any one of the contents stipulated in clause 1 of this article shall be invalid, except for the following cases:

(a) Where the period for payment is not recorded on the bill of exchange, the bill of exchange shall be paid immediately upon presentation;

(b) Where the place for payment is not recorded on the bill of exchange, the bill of exchange shall be paid at the address of the drawee;

(c) Where the place of signing and issuance is not specified on the bill of exchange, the bill of exchange shall be deemed to have been drawn at the address of the drawer.

3. When the sum of money written in figures on a bill of exchange is different from the sum

of money written in words, the sum of money written in words shall be valid for payment. Where the sum of money is written twice or more in words or in figures on a bill of exchange and they are different, the smallest sum of money written in words shall be valid for payment.

4. Where a bill of exchange does not have sufficient space for writing, it may have an additional sheet attached. The sheet shall be used for recording details of guarantee, endorsement, pledge or collection. The person who is the first to prepare an additional sheet must attach it to the bill of exchange and sign across the edges of the additional sheet and the bill of exchange.

Article 17. Obligations of drawers

1. The drawer shall be obliged to pay the sum in the bill of exchange to the beneficiary when the bill of exchange is dishonoured by non-acceptance or by non-payment.

2. Where the endorser or the guarantor has made payment of the bill of exchange to the beneficiary after the bill of exchange was dishonoured by non-acceptance or by non- payment, the drawer shall be obliged to pay the sum stated on such bill of exchange to the endorser or the guarantor.

Section II. ACCEPTANCE OF BILLS OF EXCHANGE

Article 18. Presentation of bills of exchange to request acceptance

1. The beneficiary must present a bill of exchange to request acceptance in the following cases:

(a) The drawer has written on the bill of exchange this bill of exchange must be presented to request acceptance;

(b) A bill of exchange on which a period for payment is written in accordance with article 42.1(b) of this Law must be presented to request acceptance within one year from the date of signing and issuance.

2. The presentation of a bill of exchange to request acceptance shall be deemed to be valid when the beneficiary or his/her lawful representative presents the bill of exchange at the right place for payment and during working hours of the drawee and prior to expiry of the date of maturity.

3. Bills of exchange may be presented to request acceptance in the form of registered mail via the public postal network. In this case, the date of presentation of a bill of exchange for acceptance shall be the date recorded on the postmark affixed by the sending post office.

Article 19. Period for acceptance

The drawee shall accept or refuse to accept a bill of exchange within two working days from the date on which the bill of exchange is presented. Where a bill of exchange is presented in the form of registered mail via the public postal network, this period shall commence from the date on which the drawee signs [a record] for certification of receipt of the bill of exchange.

Article 20. Breach of the obligation to present bills of exchange in order to request acceptance

When the beneficiary fails to present a bill of exchange in accordance with article 18.1 of this Law, the drawer, the endorser and the guarantor of such persons, except for the guarantor of the drawee, shall not be obliged to pay such bill of exchange.

Article 21. Form and contents of acceptance

1. The drawee shall carry out the acceptance of a bill of exchange by writing on the front of the bill of exchange the word "accepted", the date of acceptance and his/her signature.

2. Where only a part of the sum written on the bill of exchange is accepted, the drawee must specify the sum accepted.

Article 22. Obligations of acceptors

Upon acceptance of a bill of exchange, the acceptor shall be obliged to pay unconditionally the bill of exchange in accordance with the contents as accepted to the beneficiary or person who has paid the bill of exchange in accordance with this Law.

Article 23. Refusal to accept

1. A bill of exchange shall be deemed to have been dishonoured by non-acceptance if it is not accepted by the drawee within the period specified in article 19 of this Law.

2. When a bill of exchange is dishonoured by non-acceptance in part or in full, the beneficiary shall be entitled to have immediate recourse to the previous endorser, the drawer or the guarantor in accordance with article 48 of this Law.

Section III. GUARANTEES OF BILLS OF EXCHANGE

Article 24. Guarantees of bills of exchange

The guarantee of a bill of exchange is an undertaking by a third party (hereinafter referred to as the guarantor) to the recipient of the guarantee to pay all or a part of the sum stated in the bill of exchange in the event that, upon maturity for payment, the principal does not pay or does not pay in full.

Article 25. Forms of guarantee

1. The guarantor shall carry out the guarantee of a bill of exchange by way of writing the word "Guarantee", the sum guaranteed, the name, address and signature of the guarantor and the name of the principal of the guarantee on the bill of exchange or an additional sheet attached to the bill of exchange.

2. Where the name of the principal is not specified in the guarantee, the guarantee shall be deemed to be a guarantee of the drawer.

Article 26. Rights and obligations of guarantors

1. The guarantor shall be obliged to pay the bill of exchange up to the amount of its guarantee undertaking in the event that the principal of the guarantee does not carry out, or does not carry out in full, its obligation to pay when the bill of exchange matures for payment.

2. The guarantor may only cancel his or her guarantee in the case where the bill of exchange does not contain all of the compulsory items specified in article 16 of this Law.

3. Upon discharge of the guaranteed obligation, the guarantor shall be entitled to take over the rights of the principal with respect to related persons, to realize the security property of the principal and request the principal, the drawer and the acceptor to carry out jointly the obligation to pay the sum guaranteed.

4. The guarantee of bills of exchange by credit institutions shall be carried out in accordance with this Law and other provisions of the law relating to bank guarantees.

Section IV. TRANSFER OF BILLS OF EXCHANGE

Article 27. Forms of transfer of bills of exchange

The beneficiary may transfer a bill of exchange in one of the following forms:

1. Endorsement;

2. Delivery.

Article 28. Non-transferable bills of exchange

A bill of exchange shall not be endorsed if the term "Non-transferable", "Transfer prohibited", "Not Payable by Order" or other term with a similar meaning is written on the bill of exchange.

Article 29. Principles of transfer

1. The transfer of a bill of exchange means the transfer of the total sum stated in the bill of exchange. The transfer of a part of the sum stated in the bill of exchange shall be invalid.

2. The transfer of a bill of exchange to two or more persons shall be invalid.

3. The transfer of a bill of exchange by endorsement must be unconditional. The endorser shall not be allowed to write any conditions on the bill of exchange other than those provided in article 31 of this Law. All conditions accompanying the endorsement shall be invalid.

4. The transfer of a bill of exchange means the transfer of all rights arising from such bill of exchange.

5. A bill of exchange the period for payment of which has expired or which has been dishonoured by non-acceptance or by non-payment may not be endorsed.

6. The beneficiary may endorse a bill of exchange to the acceptor, drawer or endorser.

Article 30. Transfer by endorsement

1. Transfer by endorsement means that the beneficiary transfers his or her ownership of a bill of exchange to an endorsee by signing on the back of the bill of exchange and delivering it to the endorsee.

2. Transfer by endorsement shall apply to all bills of exchange except for the non- transferable bills of exchange stipulated in article 28 of this Law.

Article 31. Forms and contents of endorsement

1. A transfer by endorsement must be written and signed by the beneficiary on the back of the bill of exchange.

2. The endorser may endorse a bill of exchange in one of the two following forms:

(a) Endorsement in blank;

(b) Endorsement in full.

3. Upon transfer by endorsement in blank, the endorser shall sign on the back of the bill of exchange and deliver it to the endorsee. Endorsement to a bearer is an endorsement in blank.

4. Upon transfer by endorsement in full, the endorser shall sign on the back of the bill of exchange and must record in full the name of the endorsee and the date of endorsement.

Article 32. Rights and obligations of endorsers

1. The endorser shall be obliged to ensure that the endorsed bill of exchange will be accepted and paid, except for the case specified in clause 2 of this article. When such bill of exchange is dishonoured by non-acceptance or by non-payment in part or in full, the endorser shall be obliged to pay the refused sum of the bill of exchange endorsed.

2. The endorser may disallow subsequent endorsement of the bill of exchange by writing the term "non-negotiable", "transfer prohibited" or other term with a similar meaning in the section of endorsement of the bill of exchange; and if the bill of exchange is subsequently endorsed, the subsequent endorser shall not be obliged to make payment to any later endorsee.

Article 33. Transfer by delivery

1. Transfer by delivery means that the beneficiary transfers his or her ownership of a bill of exchange to the endorsee by delivering it to the latter.

2. Transfer by delivery shall apply to the following bills of exchange:

(a) Bills of exchange drawn for payment to the bearer;

(b) Bills of exchange endorsed once by endorsement in blank;

(c) Bills of exchange endorsed last by endorsement in blank.

Article 34. Rights of persons to whom bills of exchange are transferred by delivery or by endorsement in blank

A person to whom a bill of exchange is transferred by delivery or endorsement in blank shall have the following rights:

1. To fill in the blank section his/her name or the name of another person;

2. To carry out a subsequent endorsement in blank by signing the bill of exchange;

3. To carry out a subsequent transfer of the bill of exchange by delivery to another person;

4. To carry out an endorsement in full of the bill of exchange.

Article 35. Discount and re-discount of bills of exchange

Bills of exchange may be discounted or rediscounted at the State Bank of Vietnam or credit institutions in accordance with the regulations of the State Bank of Vietnam.

Section V. DELIVERY FOR PLEDGE AND DELIVERY FOR COLLECTION OF BILLS OF EXCHANGE

Article 36. Right to pledge bills of exchange

The beneficiary may pledge a bill of exchange in accordance with the provisions in this Section and other relevant laws.

Article 37. Delivery of bills of exchange for pledge

The pledgor of a bill of exchange must transfer the bill of exchange to the pledgee. The agreement on pledge of a bill of exchange must be made in writing.

Article 38. Dealing with pledged bills of exchange

When the pledgor has performed the obligation secured by the pledge of a bill of exchange, the pledgee must return the bill of exchange to the pledgor. Where the pledgor fails to perform in full and on time the obligation secured by the pledge of the bill of exchange, the pledgee shall become a beneficiary of the bill of exchange and shall be entitled to the payment under the obligation secured by the pledge.

Article 39. Collection by collectors

1. The beneficiary may deliver a bill of exchange to a collector for collection of the sum stated in the bill of exchange by way of delivering it together with a written authorization for collection to the collector in accordance with the provisions of this Law.

2. The collector shall not be allowed to exercise the rights of the beneficiary with respect to the bill of exchange other than the right to present the bill of exchange for payment, the right to receive the sum stated in the bill of exchange and the right to deliver the bill of exchange to another collector for collection.

3. The collector must present the bill of exchange to the drawee for payment in accordance with the provisions of article 43 of this Law. Where the bill of exchange is not paid because the collector fails to present it or fails to present it on time for payment, the collector shall be obliged to compensate the beneficiary for loss and damage up to the sum stated in the bill of exchange.

4. The State Bank of Vietnam shall provide specific procedures for collection of bills of exchange by collectors.

Section VI. PAYMENT OF BILLS OF EXCHANGE

Article 40. Beneficiary

The beneficiary of a bill of exchange shall be deemed to be the legal beneficiary when all of the following conditions are satisfied:

1. [The beneficiary] holds the bill of exchange, the period for payment of which has not expired, and is not aware of any notice of refusal of acceptance or of payment of it.

2. The ownership rights with respect to the bill of exchange are created lawfully. Where the beneficiary receives the bill of exchange by an endorsement, the series of endorsing signatures must be continuous and uninterrupted.

3. There is no notice of the fact that the previous endorsers of the bill of exchange held the bill of exchange by fraud, duress or coercion or by other illegal ways.

Article 41. Rights of a beneficiary

1. The payee holding a bill of exchange in accordance with article 40 of this Law shall have the following rights:

(a) To present the bill of exchange for acceptance or for payment when the bill of exchange matures;

(b) To request payment by related persons upon maturity;

(c) To endorse the bill of exchange in accordance with this Law;

(d) To deliver the bill of exchange for pledge or for collection;

(dd) To have recourse or initiate legal action in relation to the bill of exchange.

2. The rights of the beneficiary holding a bill of exchange specified in article 40 of this Law shall still be secured even through the related persons previously held illegally the bill of exchange.

Article 42. Period for payment

1. The period for payment of a bill of exchange shall be recorded in accordance with one of the following periods:

(a) The date of presentation;

(b) Within a certain period from the date of acceptance of the bill of exchange;

(c) Within a certain period from the date of issuance of the bill of exchange;

(d) Upon a specific fixed date.

2. A bill of exchange which states more than one payment period or states a payment period other than those stipulated in clause 1 of this article shall be invalid.

Article 43. Presentation of bills of exchange for payment

1. The beneficiary shall have the right to present a bill of exchange at the place for payment in order to request the drawee to make payment upon the date of maturity for payment or within five working days thereafter.

2. A beneficiary may present a bill of exchange for payment later than the period provided for in the bill of exchange if such delay of presentation is caused by an event of force majeure or an objective impediment. The time period of such event of force majeure or objective impediment shall not be included in the period for payment.

3. A bill of exchange which states the period for payment being "upon presentation" shall be presented for payment within a period of ninety (90) days from the date of drawing and issuance.

4. The presentation of a bill of exchange for payment shall be deemed to be valid when all of the following conditions are satisfied:

(a) [The bill of exchange] is presented by the beneficiary or his/her legal representative;

(b) The bill of exchange has matured;

(c) [The bill of exchange] is presented at the place for payment as stipulated in clause 1(d) and clause 2(b) of article 16 of this Law.

5. The beneficiary may present a bill of exchange for payment by registered mail via the public postal network. The date of presentation of the bill of exchange for payment shall be determined on the basis of the date recorded on the postmark affixed by the sending post office.

Article 44. Payment of bills of exchange

1. The drawee must pay, or refuse to pay, a bill of exchange to the beneficiary within three working days from the date of receipt of the bill of exchange. Where a bill of exchange is presented by registered mail via the public postal network, such period shall commence from the date on which the drawee signs [a record] for certification of the receipt of the bill of exchange.

2. When a bill of exchange has been paid out in full, the beneficiary must delivery the bill of exchange together with any additional sheets attached to the payer.

Article 45. Refusal to pay

1. A bill of exchange shall be deemed to be dishonoured by non-payment if the payee is not paid in full the sum stated in the bill of exchange within the period specified in article 44.1 of this Law.

2. When a bill of exchange is dishonoured by non-payment in part or in full for the sum stated in the bill of exchange, the beneficiary may immediately have recourse to the preceding endorser, the drawer or the guarantor for the unpaid amount in accordance with the provisions of article 48 of this Law.

Article 46. Payment in full of bills of exchange

A bill of exchange shall be deemed to have been paid out in full in the following circumstances:

1. The drawer, drawee or acceptor has paid in full the sum stated in the bill of exchange to the beneficiary.

2. The acceptor becomes the beneficiary of the bill of exchange upon the date of maturity or after that date.

3. The beneficiary cancels the bill of exchange or waives his or her rights with respect to the bill of exchange when such cancellation or waiver is specified on the bill of exchange by the term "cancelled" or "waived" or other term with a similar meaning, the date of cancellation or waiver and the signature of the beneficiary.

Article 47. Early payment

A drawee which makes payment of a bill of exchange prior to maturity at the request of the beneficiary shall bear any loss and damage and loss arising from early payment.

Section VII. RECOURSE DUE TO NON-ACCEPTANCE OR NON-PAYMENT OF BILLS OF EXCHANGE

Article 48. Right to recourse

1. The payee shall have the right to recourse for the sum provided in article 52 of this Law against the following persons:

(a) The drawer, a guarantor or previous endorser, in cases of refusal to accept a bill of exchange in part or in full in accordance with this Law;

(b) The drawer, an endorser or a guarantor, where the bill of exchange is not paid upon maturity in accordance with its terms;

(c) The drawer, an endorser or a guarantor, where a drawee is declared bankrupt or is dissolved, dead or missing, irrespective of whether or not the bill of exchange has been accepted;

(d) An endorser or a guarantor, where the drawer is declared bankrupt or is dissolved, dead or missing prior to the maturity of the bill of exchange and the bill of exchange has not been accepted.

2. The endorser who has made payment to the beneficiary shall have the right to recourse against the drawer or previous endorser.

Article 49. Written notice on recourse

Where a bill of exchange is dishonoured by non-acceptance or by non-payment, the beneficiary must provide written notice of such dishonour to the drawer and the endorser or their guarantors.

Article 50. Period for notification

1. The beneficiary shall notify the drawer and the endorser or their guarantors of the fact that a bill of exchange is dishonoured by non-acceptance or by non-payment within four working days from the date of dishonour.

2. Within four working days from the date of receipt of the notice of such dishonour, each endorser must provide written notice of the dishonour of the bill of exchange to the previous endorser, including the name and address of the preceding person giving notice. Such notice must be provided up until the drawer receives notice that the bill of exchange has been dishonoured by non-acceptance or by non-payment.

3. If, during the period for notification stipulated in clauses 1 and 2 of this article, the notification is unable to be provided resulting from an event of force majeure or objective impediment, then the time period of such event of force majeure or objective impediment shall not be included in the period for notification.

Article 51. Responsibilities of related persons

1. The drawer and endorser shall be jointly responsible for paying the beneficiary the full sum stated in the bill of exchange.

2. The acceptor and guarantor shall be jointly responsible for paying the beneficiary the sum undertaken to accept or undertaken to guarantee.

Article 52. Sum of money to be paid out

The beneficiary shall have the right to request payment of all of the following items:

1. Any sum which has not been accepted or which has not been paid;

2. Costs of recourse and any other legitimate related costs;

3. Interest on any late payment as from the date on which the commercial paper matured for payment in accordance with the regulations of the State Bank of Vietnam.

Chapter III

PROMISSORY NOTES

Article 53. Contents of promissory notes

1. A promissory note must include the following contents:

(a) The words "Promissory Note" written on the front of the promissory note;

(b) An undertaking to make unconditional payment of a fixed sum of money;

(c) The period for payment;

(d) The place for payment;

(dd) The name of the beneficiary being an organization or the full name in the case of the beneficiary being an individual designated by the issuer or in whose favour [the issuer] has made the request for payment of the promissory note to the order of the beneficiary or the request for payment of the promissory note to the bearer2 .

(e) The place and date of signing and issuance;

(g) The name of the issuer being an organization or the full name in the case of the issuer being an individual, and the address and signature of the issuer.

2. A promissory note which omits any one of the contents stipulated in clause 1 of this article shall be invalid, except for the following cases:

(a) Where the place for payment is not recorded on the promissory note, the place for payment shall be the address of the issuer;

(b) Where the place of signing and issue is not recorded on the promissory note, the place of signing and issuance shall be the address of the issuer.

3. When the amount of money written in figures on a promissory note is different from the amount of money written in words, the amount of money written in words shall be valid for payment. Where the amount of money in a promissory note is written twice or more in words or in figures and they are different, the smallest amount of money written in words shall be valid for payment.

4. Where a promissory note does not have sufficient space for writing, it may have an additional sheet attached. The sheet shall be used for recording details of a guarantee, endorsement, pledge or collection. The person who is the first to prepare an additional sheet must attach it to the promissory note and sign across the edges of the additional sheet and the promissory note.

Article 54. Obligations of issuers

The issuer of a promissory note shall be obliged to pay the sum stated in the promissory note upon maturity to the beneficiary and shall have other obligations as an acceptor of a bill of exchange in accordance with this Law.

Article 55. Obligations of first endorsers of promissory notes

The first endorser of a promissory note shall have the obligations as the drawer of a bill of exchange specified in article 17 of this Law.

Article 56. Payment in full of promissory notes

A promissory note shall be deemed to have been paid out in full in the following circumstances:

1. When the issuer becomes the beneficiary of the promissory note upon the date of maturity or after that date.

2. The issuer has paid the beneficiary the full sum stated in the promissory note.

3. The beneficiary cancels the promissory note.

Article 57. Guarantee, endorsement, pledge, collection, payment and recourse of promissory notes

The provisions of articles 24 to 52 of this Law on guarantee, endorsement, pledge, collection, payment and recourse of bills of exchange shall also apply in a similar way to promissory notes.

Chapter IV

CHEQUES

Section I. CONTENTS OF CHEQUES AND DRAWING OF CHEQUES

Article 58. Contents of cheques

1. The following items shall appear on the front of a cheque:

(a) The word "Cheque" printed on the top of the cheque;

(b) A fixed amount of money;

(c) The name of a bank or of an organization providing payment services being the drawee;

(d) The name of the beneficiary being an organization or the full name in the case of the beneficiary being an individual who is designated by the drawer or in favour of whom [the drawer] has made the request for payment of the cheque to the order of the beneficiary or the request for payment of the cheque to the bearer3 .

(dd) The place for payment;

(e) The date of drawing;

(g) The name of the drawer being an organization or the full name in the case of the drawer being an individual, and the address and signature of the drawer.

2. A cheque which omits any one of the contents stipulated in clause 1 of this article shall be invalid, except that where the place for payment is not recorded in the cheque, the cheque shall be paid at the business place of the drawee.

3. Organizations supplying cheques may print other items in addition to those stipulated in clause 1 of this article provided that they do not give rise to additional legal obligations of the parties, such as number of the bank account which the drawer may use to draw the cheque, address of the drawer, address of the drawee and other items.

4. Any cheque paid via a cheque clearing centre must also contain other items in accordance with the regulations of the cheque clearing centre.

5. The back of a cheque shall be reserved for details regarding any endorsement.

6. The sum of money written in figures must be equal to those written in words on a cheque.

If the sum written in figures is different from the sum written in words, the cheque shall be invalid for payment.

Article 59. Dimensions and arrangement of position of items on cheques

1. Organizations supplying cheques shall design and implement dimensions of cheques and shall arrange the position of items on cheques, except for the case specified in clause 2 of this article.

2. A cheque clearing centre shall stipulate dimensions of cheques, items and the arrangement of position of items on cheques which are paid via the cheque clearing centre.

Article 60. Drawing cheques

1. Cheques may be drawn to issue an order to a drawee to pay money:

(a) To a defined person without permission to endorse the cheque, by writing clearly the name of the beneficiary on the cheque accompanied by the words "Not transferable" or "Do not pay to the order of";

(b) To a defined person with permission to endorse the cheque, by writing clearly the name of the beneficiary on the cheque without the words not permitting endorsement specified in paragraph (a) of this clause;

(c) To the holder of the cheque, by writing the words "Pay bearer" or by not writing the name of the beneficiary.

2. Cheques may be drawn to issue an order to the drawee to pay money to the drawer itself.

3. A cheque may not be drawn to issue an order to the drawer itself to pay the cheque, unless it is drawn to pay money from one entity to another entity where both entities belong to the drawer.

4. The drawer of a cheque shall be an organization or individual having an account at banks or organizations providing payment services licensed by the State Bank of Vietnam.

Article 61. Cheques to pay money into an account and cheques to pay cash

1. The drawer of a cheque or the endorser of a cheque may refuse permission for the cheque to be cashed by writing on the face of the cheque the words "Pay into account".

In this case, the drawee may only remit the sum specified in such cheque into an account of the beneficiary and shall not be permitted to pay cash even if the words "Pay into account" have been crossed out.

2. The beneficiary may be paid by the drawee in cash where a cheque does not record the words "Pay into account".

Article 62. Crossed non-bearer cheques and crossed bearer cheques

1. The drawer or endorser of a cheque may permit the cheque to be paid only to a bank or a beneficiary having an account at a bank by putting two parallel diagonal lines on the cheque.

2. The drawer or endorser of a cheque may permit the check to be paid only to a specific bank or a beneficiary having an account at such bank by putting two parallel diagonal lines and writing the name of such bank between these two lines. A check containing the names of two banks between the two lines shall be invalid for payment, except where one of the two banks whose name is written between the two lines is a collecting bank.

Section II. SUPPLY OF CHEQUES

Article 63. Supply of blank cheques

1. The State Bank may supply blank cheques to credit organizations and to other organizations which have opened an account at the State Bank.

2. Banks and organizations providing payment services may supply blank cheques to organizations and individuals using accounts in order to draw cheques.

3. Organizations supplying blank cheques shall stipulate the conditions and procedures for safeguarding and use of the cheques supplied by them.

Article 64. Printing, delivery and receipt, and safeguarding of blank cheques

1. Organizations supplying cheques shall arrange the printing of blank cheques in order to supply them to users.

2. Prior to printing and supply of blank cheques for use, organizations supplying cheques must register their blank cheque form with the State Bank of Vietnam.

3. The delivery, receipt and safeguarding of blank cheques shall be implemented in accordance with the regulations of the State Bank of Vietnam on delivery, receipt and safeguarding of important printed matter.

Section III. ENDORSEMENT AND COLLECTION OF CHEQUES

Article 65. Transfer of cheques

The endorsement of cheques shall be subject to the provisions in Section IV of Chapter II of this Law on transfer of bills of exchange, except for the case of delivery of cheques to organizations providing payment services for collection in accordance with article 66 of this Law.

Article 66. Delivery of cheques for collection

1. The beneficiary of a cheque may pass the cheque for collection by endorsing and delivering it to the collector.

2. The collector may only present a cheque on behalf of the party which passed the cheque, receive the sum of money stated in the cheque or pass the cheque to another collector for collection; have recourse to the drawer and the party which passed the cheque for the sum of money stated in the cheque if the collector has paid in advance the sum of money stated in the cheque to the beneficiary and the check passed for collection is dishonoured by the drawee.

Section IV. GUARANTEE OF PAYMENT OF CHEQUES

Article 67. Guarantee of payment of cheques

1. Where a cheque contains all of the items stipulated in article 58 of this Law and the drawer has sufficient funds to pay the cheque upon request for guarantee of payment of cheque, the drawee shall be obliged to guarantee payment of the cheque by signing and recording "Payment guaranteed" on the cheque.

2. The drawee shall be obliged to retain an amount of money sufficient for payment of the guaranteed cheque when such cheque is presented within the period for presentation.

Article 68. Guarantee of checks

The guarantee of checks shall be carried out in accordance with the provisions of articles 24 to 26 of this Law on guarantees of bills of exchange.

Section V. PRESENTATION AND PAYMENT OF CHEQUES

Article 69. Period for presentation, request for payment of cheques and place for presentation

1. The period for presentation and request for payment of a cheque shall be thirty (30) days from the date of drawing.

2. A beneficiary may present and request payment of a cheque later than [the period for presentation] if such delay of presentation is caused by an event of force majeure or an objective impediment. The time period of such event of force majeure or objective impediment shall not be included in the period for presentation and request for payment.

3. A cheque must be presented for payment within the period for presentation and request for payment made at the place for payment stipulated in clause 1(dd) and clause 2 of article 58 of this Law or at a cheque clearing centre in the case of cheques paid via such cheque clearing centre.

4. The presentation of a cheque for payment shall be deemed to be valid when the cheque is presented by the beneficiary or by the legal representative of the beneficiary at the place for payment specified in clause 3 of this article.

5. The beneficiary may present a cheque for payment by registered mail via the public postal network. The date of presentation of a check for payment shall be determined on the basis of the date stated in the postmark affixed by the sending post office.

Article 70. Presentation of checks at cheque clearing centres

Banks and other organizations providing payment services shall present requests for payment of cheques at a check clearing centre in accordance with the regulations of such centre.

Article 71. Making payment

1. Where a cheque is presented for payment within the period and at the place for presentation stipulated in article 69 of this Law, the drawee shall be liable to make payment on the day of presentation or on the next working day if the drawer has sufficient funds in its account to make payment.

2. A drawee which fails to comply with the provision of clause 1 of this article shall be liable for any loss caused to the beneficiary at a maximum of interest calculated on the sum specified in the cheque calculated from the date on which the cheque was presented for payment at the late payment penalty interest rate stipulated by the State Bank of Vietnam as applicable at the date of presentation of the cheque.

3. If a cheque is presented for payment prior to the date of drawing recorded on the cheque, payment shall only be made as from the date of drawing recorded on the cheque.

4. If a cheque is presented after the period for presentation but within six (6) months from the date of drawing, the drawee may still make payment if the drawee has not received notice to stop payment of such cheque and if the drawer has sufficient funds in its account to make payment.

5. Where the funds used by the drawer to draw cheques are insufficient to pay the whole amount specified in a cheque as provided in clauses 1 and 2 of this article, and if the beneficiary requests payment of part of the amount specified in the cheque, the drawee shall be liable to make payment in accordance with the request of the beneficiary to the extent of the current funds of the drawer used to pay cheques.

6. When paying part of the amount specified in a cheque, the drawee must specify the amount so paid on the cheque and return it to the beneficiary or to the person authorized by the beneficiary. The beneficiary or the person authorized by the beneficiary must prepare a receipt for such payment and deliver it to the drawee.

7. In this case, the receipt shall be deemed a voucher proving payment by the drawee of part of the amount specified in the cheque.

8. Where a cheque is presented for payment after the drawer dies or is declared bankrupt or is dissolved, dead or missing or loses capacity for civil acts, the cheque shall still be valid for payment in accordance with the provisions of this article.

9. Payment of a cheque in accordance with the provision in clause 4 of this article shall terminate six months after the date of drawing recorded on the cheque.

Article 72. Payment of endorsed cheques

Upon making payment of a cheque which has been transferred by endorsement, the drawee must check and ensure continuity of the endorsing signatures.

Article 73. Stopping payment of cheques

1. A drawer shall have the right to require payment of a cheque drawn by such drawer to be stopped by notifying in writing the drawee to stop payment of such cheque upon its presentation for payment. Notice to stop payment of a cheque shall only be valid upon expiry of the period specified in article 69.1 of this Law.

2. After a cheque has been dishonoured by a drawee in accordance with a notice to stop payment from the drawer, the drawer shall remain liable to pay the sum specified in the cheque.

Article 74. Dishonoured cheques

1. A check shall be deemed to be dishonoured if the beneficiary has not received the full sum of money specified in the cheque upon the expiry of the period specified in article 71.1 of this Law.

2. When dishonouring a cheque, the drawee or the cheque clearing centre shall prepare a certificate confirming that the cheque was dishonoured and recording the cheque number, the amount dishonoured, the reason for dishonouring the cheque, the date of presentation and the name and address of the drawer, and shall sign the certificate and deliver it to the presenter of the cheque

Article 75. Recourse of checks due to non-payment

The recourse of a check due to non-payment shall be subject to the provisions of articles 48 to 52 of this Law.

Chapter V

INITIATION OF LEGAL ACTION, INSPECTION AND DEALING WITH BREACHES

Article 76. Initiation of legal action by beneficiary

1. After sending a notice that a negotiable instrument is dishonoured by non-acceptance or by non-payment of all or part of the sum of money stated in the negotiable instrument, the beneficiary shall have the right to initiate legal action in court against one, several or all of the related persons in order to claim payment of the sum stipulated in article 52 of this Law. The pleadings shall include a statement of claim and the negotiable instrument which was dishonoured by non-acceptance or by non-payment and the notice that the negotiable instrument was dishonoured by non-acceptance or by non-payment.

2. A beneficiary not presenting a negotiable instrument for payment within the period stipulated in articles 43 and 69 of this Law, or not sending notice that acceptance was refused or that payment was refused within the period stipulated in article 50 of this Law, shall lose the right to initiate legal action against all related persons, except the drawer, the accepter or the issuer and the guarantor of the drawee in the case where a bill of exchange has not been accepted.

Article 77. Initiation of legal action by related persons

Any related person against whom legal action is initiated pursuant to article 76 of this Law shall have the right to initiate legal action against the previous endorser, the issuer, the drawer or their guarantors in respect of any of the sums stipulated in article 52 of this Law as from the date of fulfilment of all payment obligations with respect to the negotiable instrument.

Article 78. Limitations of actions

1. A beneficiary shall have the right to initiate legal action against the drawer, the issuer, a guarantor, an endorser or an accepter of the request for payment of the sums stipulated in article 52 of this Law within three years from the date on which the negotiable instrument is dishonoured by non-acceptance or by non-payment.

2. Any related person against whom legal action is initiated pursuant to article 76 of this Law shall have the right to initiate legal action against the drawer, the issuer, the previous endorser, the guarantor or an accepter in respect of the sums stipulated in article 52 of this Law within two years from the date of fulfilment of the payment obligations in respect of the negotiable instrument.

3. Where a beneficiary does not present a negotiable instrument for payment on time in accordance with the provisions of articles 43 and 69 of this Law, or does not send notice that the negotiable instrument was dishonoured by non-acceptance or by non-payment within the period stipulated in article 50 of this Law, the beneficiary shall only have the right to initiate legal action against an accepter, the issuer, the drawer or the guarantor of the drawee within two years from the date of drawing and issuance of the negotiable instrument.

4. If, during the limitation periods stipulated in clauses 1, 2 and 3 of this article, there arises any event of force majeure or an objective impediment affecting the exercise of the right of the beneficiary and related persons to initiate legal action, the time period of such event of force majeure or objective impediment shall not be included in the limitation period for initiation of legal action.

Article 79. Settlement of disputes

1. Disputes in relation to negotiable instruments may be settled at a court or a commercial arbitration body.

2. People's courts of provinces or cities under central authority shall have jurisdiction to resolve disputes in relation to negotiable instruments. People's courts shall resolve disputes in relation to negotiable instruments independently from the transaction which is the basis for issuance of the negotiable instruments and shall only rely on the pleadings set out in article 76.1 of this Law. The procedures for resolution of disputes in relation to negotiable instruments at courts shall be performed in accordance with the provisions of the Civil Proceeding Code.

3. A commercial arbitration body shall have jurisdiction to resolve disputes in relation to negotiable instruments if the parties have agreed on the resolution of disputes by arbitration before or after occurrence of the disputes. The arbitration agreement and arbitration proceedings shall be performed in accordance with the provisions of the laws on arbitration.

Article 80. Inspection of implementation of provisions of the laws on negotiable instruments

1. The State Bank of Vietnam shall, depending on its responsibilities and powers, be obliged to inspect and examine the implementation of the provisions of the laws on negotiable instruments in negotiable instrument transactions related to banking activities.

2. Ministries and ministerial equivalent bodies shall, within on the scope of their respective responsibilities and powers, be obliged to directly inspect and examine or coordinate in inspecting and examining the implementation of the provisions of the laws on negotiable instruments in the sphere under their respective authority.

3. The Government shall specify the coordination in inspection referred to in this article.

Article 81. Dealing with breaches

1. Any individual in breach of the provisions of this Law shall, depending on the nature and seriousness of the breach, be subject to administrative penalty or prosecution for criminal liability; and, if such breach causes loss, shall be liable to pay compensation in accordance with law.

2. Any organization in breach of the provisions of this Law shall, depending on the nature and seriousness of the breach, be subject to administrative penalty; and, if such breach causes loss, shall be liable to pay compensation in accordance with law.

Chapter VI

IMPLEMENTING PROVISIONS

Article 82. Effectiveness

1. This Law shall be of full force and effect as of 1 July 2006.

2. The Ordinance on Commercial Papers dated 24 December 1999 and other legal instruments relating to commercial papers and cheques shall no longer have effect from the date of effectiveness of this Law.

Article 83. Guidelines for implementation

The Government shall make detailed regulations and provide guidelines for the implementation of this Law.

This Law was passed by XI Legislature of the National Assembly of the Socialist Republic of Vietnam at its 8th Session on 29 November 2005.

 

 

CHAIRMAN OF THE NATIONAL ASSEMBLY




Nguyen Van An

 

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Law No. 49/2005/QH11 of November 29,2005, on Negotiable instruments.
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