Chapter III
ACTIVITIES OF FINANCIAL LEASING COMPANIES
Article 16.- Professional activities of a financial leasing company include:
1. Mobilizing capital from the following sources:
a/ Accepting deposits with a one-year or longer term from organizations and individuals according to the regulations of the State Bank;
b/ Issuing bonds, deposit certificates and other valuable papers with a term of over one year with a view to mobilizing capital from organizations and individuals inside and outside the country when it is so approved by the State Bank Governor;
c/ Borrowing capital from financial and credit institutions inside and outside the country;
d/ Receiving capital from other sources according to the regulations of the State Bank.
2. Financial leasing.
3. Purchasing and sub-leasing in the form of financial leasing (hereinafter called purchasing and sub-leasing), In this form, the financial leasing company purchases machinery, equipment, transport means and movables owned by the lessee and sub-leases them to the lessee for continued use in service of their activities.
4. Advising clients on matters related to financial leasing operations.
5. Providing services of entrustment, asset management and guaranty related to financial leasing activities.
6. Other activities when permitted by the State Bank.
Article 17.-
1. Financial leasing contracts mean arrangements between the lessor and the lessee on the lease of one or a number of machines, equipment, transport means and other movables according to the provisions of Article 1 of this Decree and suited to the rights and obligations of the parties.
2. Financial leasing contracts must be made in writing in accordance with law provisions. The contracts must clearly state the handling measures to be taken once they terminate ahead of time.
3. The lessors and the lessees must not unilaterally cancel the financial leasing contracts (except the cases specified in Article 27 of this Decree).
Article 18.- The financial leasing companies may directly import machinery, equipment, transport means and movables which the lessees have been permitted to purchase, import and use according to current law provisions (hereinafter called the leased assets permitted for import).
Article 19.- Assets for financial lease must be registered at the Center for Registration of Secured Transactions. The Ministry of Justice shall guide in detail the registration of these assets.
Article 20.- For leased assets being transport means and fishing ships and boats with registration certificates, the financial leasing companies shall keep the original registration certificates and the lessees shall, when using such means, keep the copies which are certified by the State notary public and confirmed by the financial leasing companies, in order to use the means during the leasing term. The financial leasing companies shall put their confirmation in only one copy of the means registration certificates, which has been certified by the State notary public. If such assets are used along international routes, the financial leasing companies shall keep the copies of their registration certificates, which have been certified by the notary public.
Article 21.- For leased assets which require use permits, the competent bodies shall consider the granting of use permits to the lessees on the basis of the documents proving the financial leasing companies ownership over such leased assets and the financial leasing contracts. The State Bank shall coordinate with the use permit-granting bodies in guiding the implementation of this provision.
Article 22.-
1. Taxes on machinery, equipment, transport means and other movables which the financial leasing companies purchase at home or import for lease shall be the same as for cases where the lessees directly purchase or import these assets.
2. Leased assets shall be recovered according to the provisions of Clause 1, Article 28 of this Decree; if the recovered assets are those imported from abroad, they shall, when re-exported, be exempt from export duty.
3. Where the ownership over the leased assets is transferred to the lessees upon the expiry of the leasing term through the assignment or sale of the leased assets, the lessees shall not have to pay registration tax.
Article 23.- The lessors have the rights to:
1. Request the lessees to supply quarterly reports, annual financial settlements and information on the situation of the latters production and business activities as well as matters related to the leased assets.
2. Inspect the management and use of the leased assets.
3. Purchase and import assets at the lessees requests.
4. Affix the ownership signs onto the leased assets throughout the leasing term.
5. Transfer their rights and obligations in the financial leasing contracts to another financial leasing company. In this case the lessors are only required to inform in writing in advance the lessees thereof.
6. Request the lessees to pay deposits or to find guarantors for the performance of the financial leasing contracts if it is deemed necessary.
7. Reduce rents, extend the time limit for rent payment, sell assets to the lessees according to the regulations of the State Bank.
8. Request the lessees to pay damage compensation if the latter breach the financial leasing contracts.
Article 24.- The lessors have the obligations to:
1. Sign asset purchase contracts with the suppliers under the conditions already agreed upon between the lessees and the suppliers. The lessors shall not be responsible for the non-delivery of the assets or the failure to deliver the assets under the conditions already agreed upon between the lessees and the suppliers.
2. Register the ownership of, and carry out the procedures to buy insurance for, the leased assets.
3. Fulfill properly all the contractual commitments.
Article 25.- The lessees have the rights to:
1. Select and agree with the suppliers upon the technical specifications, types, prices, modes and time limits for delivery, installation and warranty of the leased assets.
2. Directly receive the leased assets from the suppliers as agreed upon in the asset purchase contracts.
3. Decide on the purchase or continued lease of assets upon the expiry of the financial leasing contracts.
4. Request the lessors to pay damage compensation when the latter breach the financial leasing contracts.
Article 26.- The lessees have the obligations to:
1. Supply quarterly reports, annual financial settlements and information on the situation of their production and business activities as well as matters related to the leased assets at the lessors� request; create conditions for the lessors to check the leased assets.
2. Be responsible for the selection and agreement mentioned in Clause 1, Article 25 of this Decree.
3. Use the leased assets for the right purposes as agreed upon in the financial leasing contracts; refrain from transferring the right to use the leased assets to other individuals and/or organizations without the prior written consent of the lessors.
4. Pay the rents as agreed upon in the financial leasing contracts and pay other expenses related to the import of, taxes, ownership registration fee and buy insurance for, the leased assets.
5. Bear all risks of loss and damage of the leased assets and be responsible for all consequences caused by the use of the leased assets to other organizations and individuals in the process of using the leased assets.
6. Maintain and repair the leased assets during the leasing term. Refrain from erasing or damaging the ownership signs affixed on the leased assets.
7. Refrain from using the leased assets for mortgage, pledge or as security for performance of other obligations.
8. Fulfill properly all contractual commitments.
Article 27.-
1. The lessors may terminate the financial leasing contracts ahead of schedule in one of the following circumstances:
a/ The lessees fail to pay rents as prescribed in the financial leasing contracts;
b/ The lessees breach the financial leasing contracts’ terms;
c/ The lessees become bankrupt or dissolved;
d/ The guarantors become bankrupt or dissolved and the lessors refuse to accept the lessees� request to terminate the guaranty or substitute other guarantors.
2. The lessees may terminate the contracts ahead of schedule once the lessors commit one of the following violations:
a/ The lessors fail to deliver the leased assets on time;
b/ The lessors breach the contracts.
3. The financial leasing contracts may terminate ahead of the leasing term if the leased assets are lost or irreparably damaged.
4. The financial leasing contracts may terminate ahead of the leasing term if the lessors accept the payment by the lessees of the whole rent ahead of the time limit inscribed in the financial leasing contracts.
Article 28.-
1. Where a financial leasing contract is terminated ahead of schedule in one of the circumstances specified in Clause 1, Article 27 of this Decree, the lessee shall have to immediately pay all the remaining rent to the lessor. If the lessee is unable to pay such amount, the lessor may immediately recover the leased assets and the lessee shall have to pay compensation for material damage to the lessor. After recovering the leased assets, the lessor may transfer or lease them to another lessee.
2. The lessor’s ownership over the leased assets throughout the leasing term shall not be affected when the lessee becomes bankrupt, dissolved or insolvent. The leased assets shall not be regarded as those of the lessee when the lessee’s assets are handled for payment of debts to other creditors.
3. Where a financial leasing contract terminates ahead of schedule as prescribed in Clause 2, Article 27 of this Decree, the lessor shall have to pay damage compensation to the lessee.
4. Where a financial leasing contract terminates ahead of schedule as prescribed in Clause 3, Article 27 of this Decree, the lessor shall have to return to the lessee the asset insurance amount when the lessee has fully paid the rent to the lessor and the lessor has already received such insurance amount from the insurance agency.
Article 29.- The financial leasing companies shall not be allowed to finance-lease assets to the subjects specified in Clause 1, Article 77 of the Law on Credit Institutions.
Article 30.-
1. The financial leasing companies shall not be allowed to finance-lease assets under preferential conditions to the subjects specified in Clause 1, Article 78 of the Law on Credit Institutions.
2. The total value of assets leased to the subjects specified in Clause 1 of this Article must not exceed 5% of the own capital of a financial leasing company
Article 31.-
1. The financial leasing companies shall have to maintain the safety assurance percentages specified in Article 81 of the Law on Credit Institutions and guiding documents of the State Bank.
2. The limits on financial lease to a single client:
a/ The total financial leasing amount to a single client must not exceed 30% of the own capital of a financial leasing company, except for cases where financial leasing amounts come from the entrusted capital sources of the Government, organizations, individuals or lease clients being credit institutions;
b/ Where a clients leasing need exceeds 30% of the own capital of a financial leasing company or a client needs to lease from various sources, the financial leasing companies may effect a combined capital lease according to the regulations of the State Bank Governor. In special cases, the provisions of Point c, Clause 1, Article 79 of the Law on Credit Institutions shall apply.
Tìm kiếm
Nghị định 16/2001/NĐ-CP (Bản Word)