Chương II Thông tư 22/2019/TT-NHNN quy định giới hạn tỷ lệ bảo đảm an toàn trong hoạt động của ngân hàng: Quy định cụ thể

Chapter II

SPECIFIC PROVISIONS

Section 1. ACTUAL VALUE OF CHARTER CAPITAL/ASSIGNED CAPITAL; WHAT TO DO WHEN ACTUAL VALUE OF CHARTER CAPITAL/ASSIGNED CAPITAL FALLS BELOW LEGAL CAPITAL

Article 6. Actual value of charter capital/assigned capital

1. Actual value of charter capital/assigned capital of a bank or FBB is the remaining value of the charter capital/assigned capital determined according to Clause 2 and Clause 3 of this Article.

2. Determination of actual value of charter capital/assigned capital:

A bank or FBB shall determine the remaining value of charter capital/assigned capital when:

a) Provisions for losses are sufficient as prescribed by law;

b) Revenues and expenses are fully accounted for to determine business performance.

3. Calculation of actual value of charter capital/assigned capital:

Actual value of charter capital/assigned capital equals (=) the charter capital/assigned capital plus (+) share premium ± undistributed cumulative profit on accounting book.

4. A bank or FBB shall regularly monitor and assess the actual value of its charter capital/assigned capital and submit reports to SBV in accordance with Point a and Point b Clause 6 Article 4 of this Circular. To be specific:

a) If the fiscal year of the bank or FBB ends on December 31:

The report on actual value of charter capital/assigned capital at the end of June 30 and December 31 shall be submitted by July 15 and January 15 respectively;

b) If the fiscal year of the bank or FBB does not end on December 31:

The report on actual value of charter capital/assigned capital at the end of the last day of the previous quarter shall be submitted by the 15^th of the first months of the first quarter and the third quarter;

c) In case the actual value of charter capital/assigned capital mentioned in Point a and Point b of this Clause does not include adjustments by independent auditors (if any), they may be added to the next financial statement.

Article 7. What to do when actual value of charter capital/assigned capital fall below legal capital

1. When the actual value of charter capital/assigned capital fall below legal capital, the bank or FBB shall:

a) Develop and implement a plan to make sure the actual value of charter capital/assigned capital is not smaller than legal capital;

b) Within 30 days after the actual value of charter capital/assigned capital falls below the legal capital, send a response plan to SBV in accordance with Point a and Point b Clause 6 Article 4 of this Circular. Such a plan shall specify:

(i) The actual value of charter capital/assigned capital according to Article 6 of this Circular;

(ii) The reason it falls below legal capital;

(iii) Measures for maintaining the actual value of charter capital/assigned capital equal to or above the legal capital and maintaining prudential ratios;

c) Organize implementation of the corrective measures at the request of SBV (if any).

2. Whenever the charter capital/assigned capital of a bank or FBB falls below the legal capital, SBV shall:

a) Carry out an assessment, inspection or request the bank or FBB to undergo independent audit for determination of actual value of charter capital/assigned capital in the response plan mentioned in Clause 1 of this Article.

b) Request changes or completion of the corrective measures to be implemented by the bank or FBB where necessary;

c) Supervise and inspect the implementation of the response plan, including the corrective measures requested by SBV;

d) SBV shall, in consideration of the decrease in actual value of charter capital/assigned capital, decide on the following corrective measures:

(i) The measures specified in Clause 2 Article 59 of the Law on the State bank when the actual value of charter capital/assigned capital is below 80% of legal capital;

(ii) Apply restructuring measures prescribed by law; revoke the license if the bank’s or FBB’s charter capital/assigned capital is below 50% of legal capital or is below legal capital for 6 consecutive months despite implementation of the measures mentioned in Clause 1 of this Article.

3. SBV branches may apply the measures mentioned in Clause 2 of this Article to FBBs that are subjects of microprudential supervision, including:

a) The measures mentioned in Points a, b, c Clause 2 of this Article;

a) The measures mentioned in Point d(i) of this Article if assigned by the Governor of SBV;

c) The measures mentioned in Clause 2 of this Article beyond the power of SBV branches if authorized by the Governor of SBV.

Section 2. OWNER’S EQUITY AND CAPITAL ADEQUACY RATIO

Article 8. Owners’ equity

The owners’ equity equals (=) Tier 1 capital plus (+) and Tier 2 capital minus (-) the deductions stipulated in Appendix 1 hereto attached.

Article 9. Capital adequacy ratio

1. The capital adequacy ratio (CAR) reflects the capital adequacy of the bank or FBB based on the value of its equity and operational risks. Every bank and FBB shall maintain their CARs in accordance with Clause 2 and Clause 3 of this Article.

2. CAR of a bank:

a) CAR of a bank consists of individual CAR and consolidated CAR.

b) Individual CAR of a bank: 9%.

Individual CAR is calculated as follows:

Where:

- Individual equity is determined according to Appendix 1 hereof.

- Total individual risk-weighted assets is the sum of on-balance assets, determined according to the level of risks and corresponding value of on-balance assets of OBS commitments according to the level of risk specified in Appendix 2 hereof.

c) Consolidated CAR: If a bank that has a subsidiary, it shall maintain a consolidated CAR of 9% in addition to the individual CAR specified in Point b of this Clause.

Consolidated CAR is calculated as follows:

Where:

- Consolidated equity shall be determined according to Appendix 1 hereof.

- Total consolidated risk-weighted assets shall be determined according to Appendix 2 hereof.

3. CAR of an FBB: 9%.

CAR is calculated as follows:

Where:

- Equity shall be determined according to Appendix 1 hereof.

- Total risk-weighted assets is the sum of on-balance assets, determined according to their level of risks and on-balance values of OBS commitments according to the level of risk specified in Appendix 2 hereof.

Section 3. CREDIT EXTENSION LIMITS

Article 10. CREDIT EXTENSION LIMITS

1. Banks and FBBs shall comply with regulations on the cases in which credit extension is banned or limited and the credit extension limits specified in Articles 126, 127 and 128 of the Law on credit institutions (amended).

2. A bank or FBB shall determine its credit extension limits mentioned in Clause 1 of this Article on the basis of its equity specified in Clause 3 of this Article at the end of the last working day.

3. Equity is determined as follows:

a) For banks and FBBs applying the CARs specified in this Circular: Banks shall apply their individual equity; FBBs shall apply their equity specified in Article 9 of this Circular.

b) Banks and FBBs that apply the CARs specified in this Circular No. 41/2016/TT-NHNN shall apply the equity determined according to Circular No. 41/2016/TT-NHNN.

Article 11. Conditions and limits for credit extension for investment in corporate bonds

1. A bank or FBB may extend credit with terms of up to 01 year for clients to invest in corporate bonds if the following conditions are met:

a) The credit extension comply with the limits and prudential ratios prescribed by law;

b) Bad debts ratio is under 3%;

c) Risks are properly managed in accordance with regulations of SBV on internal control systems of commercial banks and FBBs, regulations on classification of assets, making of and use of provisions for losses for risk management by credit institutions and FBBs.

2. A bank or FBB must not extend credit with for a client to invest in corporate bonds in the following cases:

a) The collateral is bonds issued by a credit institution, subsidiary of a credit institution or FBB;

b) The collateral is the bonds to be purchased by the client with the extended credit;

c) The client is one of the organizations and individuals mentioned in Clause 1 Article 126 of the Law on credit institutions (amended);

d) The client is a related person of any of the organizations or individuals mentioned in Clause 1 and Clause 4 Article 126 of the Law on credit institutions (amended);

dd) The client is or is related to one of the organizations or individuals mentioned in Clause 1 Article 127 of the Law on credit institutions (amended);

e) The bonds are not listed or registered on the Unlisted Public Company Market (UPCOM);

g) The bonds are issued by a subsidiary of the bank;

h) The client is a subsidiary or associate company of the credit institution.

3. The total credit extended for investment in corporate bonds (including bonds of credit institutions and FBBs) must not exceed 5% of the charter capital/assigned capital of a bank or FBB.

Article 12. Conditions and limits for credit extension for investment in shares

1. A bank or FBB may extend credit with terms of up to 01 year for clients to invest in shares if the following conditions are met:

a) The credit extension comply with the limits and prudential ratios prescribed by law;

b) Bad debts ratio is under 3%;

c) Risks are properly managed in accordance with regulations of SBV on internal control systems of commercial banks and FBBs, regulations on classification of assets, making of and use of provisions for losses for risk management by credit institutions and FBBs.

2. A bank or FBB must not extend credit with for a client to invest in shares in the following cases:

a) The collateral is shares of a credit institution or its subsidiary;

b) The collateral is the shares to be purchased by the client with the extended credit;  

c) The shares are issued by a credit institution;

d) The client is one of the organizations and individuals mentioned in Clause 1 Article 126 of the Law on credit institutions (amended);

dd) The client is a related person of the organizations or individuals mentioned in Clause 1 and Clause 4 Article 126 of the Law on credit institutions (amended);

e) The client is or is related to one of the organizations or individuals mentioned in Clause 1 Article 127 of the Law on credit institutions (amended);

g) The client is a subsidiary or associate company of the credit institution.

3. The total credit extended for investment in shares of a bank or FBB must not exceed 5% of its charter capital/assigned capital.

Article 13. Credit extension management

1. Banks and FBBs shall manage credit extension in accordance with law their internal rules and regulations on credit extension and loan management to ensure proper use of loans according to Clause 1 Article 4 of this Circular.

2. Banks and FBBs shall keep updating the list of founding shareholders, major shareholders, capital contributors, members of the Board of Directors, the Board of members, the Board of Controllers, executives, holders of other managerial positions, and their related persons. This list must be made publicly available in the system of banks and FBBs, and be sent directly or by post to SBV in accordance with Point a and Point b Clause 6 Article 4 of this Circular.

3. A bank or FBB shall submit reports to:

d) To the General Meeting of Shareholders or members: reports on credit extended to the entities specified in Clause 1 Article 127 of the Law on credit institutions (amended) by the time the general meeting is held;

b) To the owner, capital contributors, executives: reports on credit extended to the entities specified in Clause 1 Article 127 of the Law on credit institutions (amended);

c) To SBV: reports on credit extended to the entities specified in Clause 1 Article 127 of the Law on credit institutions (amended);

4. Extension of credit to subsidiaries, associate companies and the entities mentioned in Clause 2 of this Article (except for the cases in which credit extension is not allowed according to Article 126 of the Law on credit institutions (amended)) is subject to approval by the Board of members (for banks), General Director or Director (for FBBs), except for credit extension decided by the General Meeting of Shareholders. The Board of Controllers shall monitor the approval of credit extension for the aforementioned entities.

Section 4. SOLVENCY RATIOS

Article 14. Solvency ratios

1. Banks and FBBs shall, in accordance with the regulations in Appendix 3 hereof, prepare cash inflow and outflow worksheets at the end of each working day for monitoring solvency ratios specified in Clause 2 and Clause 3 of this Article.

2. Liquidity ratio:

a) Every bank and FBB shall hold liquid assets in order to be prepared for payment of debts when they are due and unexpected expenses.

b) Every bank and FBB shall maintain a minimum liquidity ratio of 10%.

c) The liquidity ratio shall be calculated as follows:

 Where:

- Liquid assets are specified in Appendix 3 hereof;

- Total liability is the total liability on the balance sheet minus (-):

+ Refinancing by SBV in the form of discounting, loans backed by financial instruments (minus the refinancing by SBV on the basis of special bonds and bonds directly issued to the debt seller at market prices of VAMC); overnight loan in electronic interbank payment; forward of financial instruments (minus the revenue from sale of bonds directly issued to the debt seller at market prices of VAMC) through open market operation of SBV.

+ Credit extension by other credit institutions and FBBS in the form of forwards, discounting and secured loans: (i) financial instruments used in transactions of SBV; (ii) bonds, treasury bills issued or guaranteed by governments and SBV of other countries and rated by international credit rating agencies (Standard & Poor’s, Fitch Rating) as AA or above, or equivalently rated by another independent credit rating agency.

d) Liquid assets and total liability shall be expressed as VND and other convertible foreign currencies at the rates specified in Point a Clause 26 Article 3 of this Circular).

3. 30-day solvency ratio:

a) A bank or FBB shall calculate and maintain its 30-day solvency for VND, USD and other foreign currencies that can be exchanged into USD a the rates specified in Point b Clause 26 Article 3 of this Circular.

b) 30-day solvency ratio is calculated as follows:

Where:

(i) Liquid assets are specified in Appendix 3 hereof;

(ii) Net cash outflow in the next 30 days is the difference between the cash outflow and cash inflow of 30 consecutive days from the next day according to Appendix 3 hereof.

c) In case a bank or FBB finds that the net cash outflow in VND in the next 30 days is a positive number, it shall maintain a minimum 30-day solvency ratio for VND of 50%.

d) In case a bank or FBB finds that the net cash outflow for a foreign currency in the next 30 days is a positive number, it shall maintain a minimum 30-day solvency ratio as follows:

(i) For commercial banks: 10%;

(ii) For FBBs: 5%;

(iii) For cooperative banks: 5%.

Article 15. Management and handling of failure to maintain solvency ratios

1. Every bank and FBB shall establish a department at the headquarters for management of liabilities and assets. Such a department shall be managed by General Director/Director or Deputy General Director/Deputy director.

2. In case the 30-day solvency ratio of a bank or FBB is below the rate specified in with Point c and Point d Clause 3 Article 14 of this Circular, SBV shall consider imposing administrative penalties and carry out solvency ratio supervision. The bank or FBB shall promptly implement the corrective measure, including: taking a loan from another credit institution or FBB; taking a loan from an overseas financial institutions; concluding an irrevocable term deposit agreement, irrevocable loan agreement and other irrevocable agreement with other credit institutions, FBBs or overseas financial institutions in other to maintain the minimum solvency ratio. If any of the corrective measures mentioned above involves at least 20% of the liquid assets, SBV shall implement additional supervision measures and take actions as prescribed by law.

3. Banks and FBBs shall submit solvency ratio reports to SBV in accordance with regulations on statistical reporting by credit institutions and FBBs. Before 10 am of the next day, the bank or FBB shall submit a written report on the inadequate solvency ratio (if any) and implemented measures, send it to SBV directly or by post in accordance with Point a and Point b Clause 6 Article 4 of this Circular.

4. A bank or FBB may only grant loans and enter into such irrevocable term deposit agreements, irrevocable loan agreements with other credit institutions and FBBs if its 30-day solvency ratio is still conformable with Article 14 of this Circular.

5. After taking the corrective measures mentioned in Clause 2 of this Article, if the bank’s or FBB’s solvency is still inadequate, it shall promptly notify SBV (Bank Supervision and Inspection Agency) and the SBV branch in the province in which the bank’s or FBB’s headquarters are located.

Section 5. MAXIMUM RATIO OF SHORT-TERM CAPITAL FOR PROVISION OF MEDIUM-TERM AND LONG-TERM LOANS

Article 16. Maximum ratio of short-term capital for provision of medium-term and long-term loans

1. Banks and FBBs shall apply the following formula to calculate maximum ratio of short-term capital for provision of medium-term and long-term loans in VND and other foreign currencies that can be exchanged into VND at the rates specified in Point a Clause 26 Article 3 of this Circular:

Where:

- A: Ratio of short-term capital for provision of medium-term and long-term loans.

- B: Total medium-term and long-term loans balance specified in Clause 2 of this Article minus (-) total medium-term and long-term capital specified in Clause 3 of this Article.

- C: Short-term capital specified in Clause 4 of this Article.

2. Total medium-term and long-term loans include:

a) Balance of the following amounts with remaining term of over 01 year:

(i) Loans (including loans taken by other credit institutions and FBBs in Vietnam), except:

- Loans from trust funds of the Government, individuals and other organizations (including other credit institutions and FBBs in Vietnam; parent banks, foreign branches of parent banks) the risks of which are taken by the trustors;

- Loans granted to programs and projects refinanced by SBV under decisions of the Government or the Prime Minister.

(ii) Trust funds granted by other credit institutions and FBBs under a trust agreement the risks of which are taken by the trustors;

(iii) Purchases of and investments in financial instruments; trust funds for purchases of and investments in financial instruments the risks of which are taken by the trustors; except financial instruments used in transactions of SBV (not including bonds issued by VAMC);

(iv) If the loans and or fiduciary loans mentioned in (i) and (ii) have various repayment terms, the remaining term to be included in the medium-term and long-term loan balance shall be determined according to the original term of each loan.

b) Overdue principal of loans, or fiduciary loans; total purchase or fiduciary purchase of financial instruments.

3. Medium-term and long-term capital with remaining term of over 01 year includes:

a) Deposits of individuals;

b) Deposits of domestic and overseas organizations, except deposits in State Treasury;

c) Loans from domestic and overseas financial institutions;

d) Trust funds from the Government the risks of which are taken by the bank or FBB (the trustee);

dd) Loans from another credit institution or FBB (the lender) that are subsequently on-lent by the bank or FBB (the borrower), the risks of which are taken by the borrower;

e) Revenue from issuance of promissory notes, treasury bills, certificates of deposit, bonds;

g) Deposits of people's credit funds if the bank is a cooperative bank;

h) Charter capital, assigned capital, fund for charter capital increase, development investment funds and financial reserve funds that remain after deduction of cumulative loss (according to the balance sheet when calculating the maximum ratio of short-term capital for provision of medium-term and long-term loans), costs of fixed assets, capital contributions, purchases of shares prescribed by law;

i) Share premium, undistributed profit (according to the balance sheet when calculating the maximum ratio of short-term capital for provision of medium-term and long-term loans) that remains after purchase of treasury stocks;

k) Exchange differences due to reassessment of foreign currency equity on the balance sheet when converting the foreign currency in the financial statement into VND.

4. Short-term capital with remaining term of up to 01 year (including demand deposits) includes:

a) Deposits of individuals, except escrows and dedicated capital deposits;

b) Deposits of domestic and overseas organizations, except:

(i) Deposits of State Treasury;

(ii) Escrows and dedicated capital deposits of clients;

(iii) Deposits of other credit institutions and FBBs in Vietnam.

c) Loans from domestic and overseas financial institutions (except loans from other credit institutions and FBBs in Vietnam);

d) Trust funds from the Government (the trustor) the risks of which are taken by the bank or FBB (the trustee);

dd) Loans from another credit institution or FBB (the lender) that are subsequently on-lent by the bank or FBB (the borrower), the risks of which are taken by the borrower;

e) Revenue from issuance of promissory notes, treasury bills, certificates of deposit, bonds;

g) Deposits of people's credit funds if the bank is a cooperative bank.

5. Banks and FBBs shall maintain the maximum ratio of short-term capital for provision of medium-term and long-term loans as follows:

a) From January 01, 2020 to September 30, 2020 inclusive: 40%

b) From October 01, 2020 to September 30, 2021 inclusive: 37%

c) From October 01, 2021 to September 30, 2022 inclusive: 34%

d) From October 01, 2022 onwards: 30%

Section 6. RATIOS OF INVESTMENT IN GOVERNMENT BONDS AND GOVERNMENT-BACKED BONDS

Article 17. Ratios of investment in government bonds and government-backed bonds

1. The maximum ratio of a bank’s or FBB’s investment in government bonds and government-backed bonds to its previous month’s total liability is 30%.

2. Government bonds include:

a) Treasury bills;

c) Treasury bonds;

c) National development bonds.

3. Government-backed bonds include:

a) Government-backed corporate bonds;

b) Government-backed bonds issued by policy banks;

c) Government-backed bonds issued financial institutions and credit institutions.

4. Total purchases of Government bonds and government-backed bonds for determination of the maximum ratio mentioned in Clause 1 of this Article is the buying prices for Government bonds and government-backed bonds under the ownership of the bank or FBB, fiduciary purchases of Government bonds and government-backed bonds, exclusive of purchases of Government bonds and government-backed bonds from trust funds the risks of which are not taken by the bank or FBB.

5. A newly established bank or FBB (excluding credit institutions that are reorganized under the Law on credit institutions) that has been operating for less than 02 years and has a total liability smaller than its charter capital/assigned capital may invest in Government bonds and government-backed bonds with a ratio of up to 30% of its charter capital/assigned capital.

Section 7. LIMITS ON CAPITAL CONTRIBUTION AND SHARES PURCHASE

Article 18. Limits on capital contribution and shares purchase

Commercial banks, their subsidiaries and associate companies shall comply with the ratios of capital contribution and share purchase specified in Article 103, Article 129 and Article 135 of the Law on credit institutions (amended).

Article 19. Commercial banks holding shares of other credit institutions

1. A commercial bank that holds of another credit institution shares (including the shares held by the bank’s shareholders, other organizations, individuals under a trust agreement with the bank) shall satisfy the conditions specified in Clause 2 and the limits specified in Clause 3 of this Article.

2. At the time of purchase of shares of another credit institution, the purchasing bank shall satisfy the following conditions:

a) The actual value of charter capital is not smaller than the registered charter capital;

b) The limits and prudential ratios specified in this Circular are complied with;

c) Bad debts ratio is under 3%;

d) There are procedures for assessment of risks of the purchase and holding of shares of other credit institutions;

dd) Every purchase of shares of the other credit institution is approved by Board of Directors, the Board of members;

e) The bank has not incurred any administrative penalties for violations against regulations on banking over 01 year before the date of purchase;

g) The chairperson and other members of the Board of Directors, the chairperson and other members of the Board of members, General Director (Director), the chief and other members of the Board of Controllers, major shareholders of the commercial bank, its subsidiaries and their related persons must not purchase voting shares of the said credit institution;

h) The chairperson and other members of the Board of Directors, the chairperson and other members of the Board of members, General Director (Director), the chief and other members of the Board of Controllers, major shareholders of the commercial bank, its subsidiaries and their related persons must not entrust any other organization to purchase voting shares of the said credit institution.

3. Limits:

a) A commercial bank may hold shares of up to 02 other credit institutions, except for the credit institutions that are subsidiaries of the bank;

b) A commercial bank may hold an amount of shares of another credit institution that is worth less than 5% of its voting shares;

c) A commercial bank must not nominate members of Board of Directors of the credit institutions whose shares are being held by the bank, except for the credit institutions that are subsidiaries of the bank or commercial banks that are supporting credit institutions appointed to participate in management of the credit institution under strict control;

d) In the following cases, the limits specified in Point a and Point b of this Clause and the conditions specified in Clause 2 of this Article may be ignored:

(i) The shares are purchased under the plan for restructuring of a credit institution put under strict control according to the Law on credit institutions (amended);

(ii) The shares purchase is requested by SBV as prescribed by law.

dd) In case a commercial bank sells another credit institution’s shares under a deferred payment plan, the bank may only transfer the ownership of the shares paid for.

Section 8. LOAN-TO-DEPOSIT RATIO

Article 20. Loan-to-deposit ratio

1. Banks and FBBs shall apply the following formula to calculate the maximum loan-to-deposit ratio LDR in VND and other foreign currencies that can be exchanged into VND at the rates specified in Point a Clause 26 Article 3 of this Circular:

Where:

- LDR: Loan-to-deposit ratio

- L: Total loans specified in Clause 2 and Clause 3 of this Article.

- D: Total deposits specified in Clause 4 of this Article.

2. Total loans include:

a) Loans provided for individuals and organizations (except credit institutions and FBBs in Vietnam);

b) Fiduciary loans granted by other credit institutions and FBBs.

3. Total loans do not include:

a) Loans from trust funds of the Government, individuals and other organizations (including other credit institutions and FBBs in Vietnam; parent banks, foreign branches of parent banks) the risks of which are taken by the trustors;

b) Overseas loans of by the bank or FBB. Overseas loans of an FBB include loans of the parent bank and its overseas branches;

c) Refinancing by SBV, excluding refinancing for temporary solvency recovery.

4. Total deposits include:

a) Deposits of domestic and foreign organizations (including deposits of other credit institutions and FBBs), except:

(i) Deposits of State Treasury;

(ii) Escrows and dedicated capital deposits of clients;

b) Deposits of individuals, except escrows and capital deposits;

c) Revenue from issuance of promissory notes, treasury bills, certificates of deposit, bonds.

5. Every bank and FBB shall maintain a maximum LDR of 85%.

The Governor of SBV shall impose specific ratios applicable to banks and FBBs over their first 03 years of operation on a case-by-case basis.

6. A bank or FBB is not required to apply the LDR specified in Clause 5 of this Article if its charter capital/assigned capital minus (-) cumulative loss (according to the balance sheet when LDR), costs of fixed assets, capital contributions, purchases of shares is greater than total loans.