Detecting illegal content in Circular 06 of the State Bank

12/29/2023 1:31 PM Nhat Linh Print article

ANTD.VN - The Department of Inspection of Legal Normative Documents ( Ministry of Justice ) has just concluded the inspection of Circular 06/2023/TT-NHNN and discovered illegal content.

Through inspection, the Department of Inspection of Legal Documents found that Circular 06 (amending and supplementing a number of articles of Circular 39/2016/TT-NHNN) has illegal content.

Specifically, at Point c, Clause 6, Article 1 of Circular 06, which stipulates the process of appraisal, approval and decision on lending in the internal regulations on lending of credit institutions, the State Bank of Vietnam requires credit institutions to "take measures to block the amount of loan disbursement at the lending credit institution according to the provisions of law and the agreement of the parties in the loan agreement until the termination of the guarantee obligation".

Circular 06 contains illegal content.

According to the Department of Inspection of legal documents, the law on security measures (Civil Code 2015, Decree No. 21/2021/ND-CP dated March 19, 2021 of the Government stipulating the implementation of the Civil Code on securing the performance of obligations) only stipulates the deposit of money into a blocked account at a credit institution to secure 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, Decree No. 101/2012/ND-CP dated November 22, 2012 of the Government on non-cash payments (amended and supplemented by Decree No. 80/2016/ND-CP dated July 1, 2016 of the Government), the payment account is partially or fully frozen in 3 cases: When there is a decision or written request from a competent authority as prescribed by law; When the payment service provider discovers a mistake or error in the money transfer, the amount frozen in the payment account does not exceed the amount of the mistake or error; When there is a dispute between the owners of the joint payment account.

Thus, the State Bank of Vietnam's regulation on blocking the amount of loan disbursement at the lending credit institution to ensure the performance of obligations is inconsistent with the provisions of the 2015 Civil Code, Decree No. 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 Department of Inspection of Legal Documents recommends that the State Bank urgently handle the above-mentioned illegal contents.

At the same time, review the implementation of Circular 06 to take measures to remedy the consequences caused by the implementation of illegal regulations (if any); consider and handle the responsibility of the agencies and individuals who advised on the development and promulgation of documents according to the provisions of Article 134 of Decree No. 34/2016/ND-CP.

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