Unreasonable and unrealistic regulations
Just a few days before it took effect, the Prime Minister directed the State Bank of Vietnam (SBV) to review and amend some contents of Circular 06/2023 (TT06). Immediately afterwards, the SBV issued Circular 10/2023 to suspend the implementation of some provisions of TT06. However, there are still some unreasonable and impractical provisions. Specifically, Clause 5, Article 26 of TT06 stipulates: "In the case of lending to pay money to secure the performance of obligations, credit institutions must freeze the amount of loan capital disbursed at the lending credit institution in accordance with the provisions of law and the agreement of the parties in the loan agreement until the termination of the guarantee obligation".
Similarly, Clause 2, Article 22 requires credit institutions: "In case of lending to pay for capital contributions under capital contribution contracts, investment cooperation contracts or business cooperation contracts to implement projects, there must be measures to inspect, monitor and evaluate the financial situation and debt repayment sources of customers, ensure the ability to fully recover the principal and interest of loans on time as agreed, and control the use of loans for the right purposes". These two regulations have a serious impact on enterprises.
The regulations in Circular 06 of the State Bank are unreasonable and impractical.
According to the Ho Chi Minh City Real Estate Association (HoREA), the above regulations only "benefit" the bank. For example, in the case of lending to deposit for future housing purchases, according to the provisions of Circular 06, the project investor (the party receiving the deposit) has the deposit frozen and is not allowed to use the amount deposited by the buyer. This is unreasonable and does not guarantee the ownership of the property owner, including the right to use the deposit. Meanwhile, the failure of the parties to properly perform the agreement on the guarantee obligation (if any) is within the scope of the 2015 Civil Code. Therefore, the provisions of Circular 06 are inappropriate, even "contrary" to the relevant provisions of the Civil Code.
In addition, in reality, usually about 30% of customers who buy real estate or future housing use credit to make a deposit, but this deposit is frozen by the bank. Meanwhile, for about 70% of customers who use their own capital (not credit) to make a deposit, the money is transferred to the investor's account and the investor has full rights to use it. Therefore, the above regulation is also not suitable for practice.
HoREA recommends that the State Bank consider abolishing the above two regulations to ensure consistency and unity with the provisions of the 2015 Civil Code. "Some regulations of Circular 06 are not suitable, causing difficulties for enterprises in accessing bank capital. We hope that the State Bank will have timely adjustment policies to comply with the Prime Minister's Official Dispatch No. 993/CD-TTg dated October 24, which is to continue promoting credit lending to the real estate sector; Have appropriate solutions to reduce costs to reduce interest rates; Continue to review and further reduce inappropriate administrative procedures that cause inconvenience and expense so that enterprises, real estate projects and home buyers can access credit capital more conveniently," emphasized Mr. Le Hoang Chau, Chairman of HoREA.
"Giving birth" to more loan conditions, increasing costs for businesses
Many enterprises are upset because the regulation of Circular 06 requires banks to not only control and monitor the activities of the borrower but also control and monitor the activities and capital flows of the capital recipient, i.e. the "third party". It is unreasonable for a third party that does not borrow directly to still be controlled by the bank and must submit reports to the bank. At the same time, this regulation also increases the process, procedures, and legal compliance costs of credit institutions, causing difficulties for both credit institutions and project investors.
This is also one of the reasons why the credit growth target for the whole year of 2023 is 14%, but by the end of November, the growth of the whole system only reached 8.21%.
Analyzing further, lawyer Truong Thanh Duc, Director of ANVI Law Firm, said that banks are pushing all the difficulties, even causing deadlocks for businesses, for their own safety and fear of responsibility. Specifically, regarding the requirement to freeze the amount of loan disbursement in Clause 5, Article 26 of Circular 06, banks, for fear of violations, will apply it in a way that frees them from all their responsibilities. It must be understood that lending to contribute capital is not a "case of lending to pay money to ensure the performance of obligations" that requires freezing the loan. If understood in the way that businesses borrow money but are not allowed to use the money, how can the capital recipient implement the project and fulfill its obligations to the capital contributor? The consequence is not only the failure of economic transactions but also a chain reaction to many other economic and civil relations. This also means that there must be double collateral (for the bank to lend and for the bank to release the disbursed amount) for the same loan. This regulation is too unreasonable, causing waste of resources, increasing costs, and even confusing businesses.
Lawyer Truong Thanh Duc emphasized: Even in cases where the loan amount is used to secure the performance of obligations, banks are not allowed to arbitrarily freeze it. According to the provisions of Article 12 of Decree No. 101/2012 of the Government, banks are only allowed to freeze accounts in 4 cases (there are no cases according to Circular 06). Similarly, the provisions of Clause 2, Article 22 of Circular 06 require banks to have measures to inspect, monitor, and evaluate the financial situation and debt repayment sources of customers... which is like "giving birth" to an additional lending condition, causing more difficulties for the capital contributor, and also causing trouble for the enterprise receiving the capital contribution, because they are not the borrower, do not transact but are still subject to the control of the bank.
Agreeing, Dr. Le Dat Chi, Head of the Finance Department (Ho Chi Minh City University of Economics), said that even if there are cases of lending in violation of regulations, causing bad debts, the State Bank should not issue regulations that interfere too deeply with the internal affairs and business operations of commercial banks. Only the law clearly stipulates which activities and behaviors are prohibited. Circulars are sub-law documents that can only guide the implementation of regulations stated in relevant laws. Moreover, the content of Articles 26 and 22 as mentioned above is unclear and difficult to implement.
For example, in the absence of a three-party agreement, enterprises will not be obliged to report to the bank on the use of loans from investors contributing capital to the project. Therefore, the above regulations make the bank itself confused while enterprises have difficulty accessing capital. The most important thing is still the inspection and supervision activities from the leaders and responsible people in commercial banks to the management agency, the State Bank. Currently, the Government is trying to remove many difficulties, so it is necessary to avoid having new regulations, especially in the field of banking finance, to support enterprises to access capital as usual, invest in expanding projects to contribute to economic recovery.
If there is a request for a third party, it must be regulated by law. Thus, due to the ambiguity of Circular 06, many credit institutions, in order to protect themselves, have applied it incorrectly. This approach has invisibly turned Circular 06 into an illegal and unrealistic document, causing great damage to businesses.
Attorney Truong Thanh Duc
In addition to proposing the abolition of some unreasonable regulations, HoREA also requested the State Bank to consider abolishing Clauses 8, 9 and 10, Article 8 of Circular No. 39/201 (supplemented according to Clause 2, Article 1 of Circular 06) because these regulations have only ceased to be effective since September 1 according to Circular 10/2023.
Source link
Comment (0)