The above information was stated by the Department of Inspection of Legal Documents (Ministry of Justice) in the document concluding the inspection of Circular 06/2023/TT-NHNN dated June 28, 2023 of the Governor of the State Bank of Vietnam amending and supplementing a number of articles of Circular 39/2016/TT-NHHNN dated December 30, 2016 regulating lending activities of credit institutions and foreign bank branches to customers.
Specifically, the Director of the Department of Inspection of Legal Normative Documents (QPPL) stated clearly at Point c, Clause 6, Article 1 of Circular 06, the State Bank requires credit institutions (CIs) "to have measures to block the amount of loan disbursement at the lending CI according to the provisions of law and the agreement of the parties in the loan agreement until the guarantee obligation is terminated".
However, the law on security measures (according to the 2015 Civil Code, Decree No. 21/2021/ND-CP) only stipulates the deposit of money into a blocked account at a credit institution to ensure the performance of obligations in the case of a deposit, there is no measure to block the amount of loan disbursement at the lending credit institution as prescribed above in Circular 06.
At the same time, according to the provisions of Clause 2, Article 12 of Decree No. 101/2012/ND-CP, regarding non-cash payments, payment accounts are partially or fully frozen in 3 cases:
One is, when there is no written decision or request from a competent authority as prescribed by law;
Second, when the payment service provider discovers a mistake or error in the money transfer. The amount blocked in the payment account does not exceed the amount of the mistake or error;
Third, when there is a dispute between joint payment account holders.
Thus, according to the Department of Inspection of Legal Documents, the State Bank's regulation on blocking the amount of loan disbursement at lending credit institutions to ensure the performance of obligations is inconsistent with the provisions of the 2015 Civil Code, Decree 101/2012/ND-CP, as well as restricting the right to choose measures to ensure the performance of obligations in civil relations between related parties.
The Director of the Department of Inspection of Legal Documents recommends that the State Bank promptly handle the above illegal contents, and at the same time review the implementation process of Circular 06 to take measures to remedy the consequences caused by the implementation of illegal regulations (if any).
Next, consider and handle the responsibility of the agency or person who advised on the drafting and promulgation of the document according to regulations.
In fact, Circular 06, since its issuance by the State Bank, has received many mixed opinions from the public, mostly from real estate associations and businesses.
After an urgent meeting on August 17, 2023 under the direction of Prime Minister Pham Minh Chinh on studying and amending Circular 06 to remove obstacles and difficulties for businesses before Circular 06 takes effect on September 1, 2023, the State Bank of Vietnam issued Circular 10/2023/TT-NHNN on August 23, 2023 to suspend the implementation of Articles 8.8, 8.9 and 8.10 of Circular 39 (supplemented by Article 1.2 of Circular 06).
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