Decree 64 on 20-Sep-01 on payment services
DECREE ON PAYMENT OPERATIONS THROUGH ORGANIZATIONS PROVIDING PAYMENT SERVICES
No. 64-2001-ND-CP, Hanoi, 20 September 2001
The Government
Pursuant to the Law on the Organization of the Government dated 30 September 1992;
Pursuant to the Law on the State Bank of Vietnam dated 12 December 1997;
Pursuant to the Law on Credit Institutions dated 12 December 1997;
On the proposal of the Governor of the State Bank of Vietnam;
Decrees:
CHAPTER I
General Provisions
Article 1 Subjects and scope of application
1. This Decree regulates payment operations through organizations providing payment services, comprising:
(a) Opening accounts, conducting payment services, and organizing and participating in payment systems by organizations providing payment services;
(b) Opening accounts and using payment services by persons using payment services.
2. This Decree shall apply to both domestic and international payment operations through organizations providing payment services within the territory of Vietnam. All payment operations through organizations providing payment services must comply with the provisions of this Decree and with other relevant laws.
Article 2 State administration of payment operations
The State Bank of Vietnam shall undertake the function of State administration of payment operations through organizations providing payment services:
1. By researching and proposing policies to encourage the extension and development of non-cash payments;
2. By promulgating within its authority legal instruments on payment;
3. By issuing licences for, or by suspending, payment operations by credit institutions and other organizations;
4. By checking and inspecting, and dealing with breaches of the law by, organizations providing payment services and persons using payment services, in accordance with its authority.
Article 3 Interpretation of terms
In this Decree, the following terms shall be construed as follows:
1. Payment operations means opening accounts, conducting payment services, and organizing and participating in payment systems by organizations providing payment services; and opening accounts and using payment services by persons using payment services.
2. Organizations providing payment services means the State Bank of Vietnam (hereinafter referred to as the State Bank), and other banks and organizations providing payment services.
3. Persons using payment services means any organization or individual conducting a payment transaction through an organization providing payment services.
4. Payment transaction means discharging an obligation to pay monies or to remit monies between organizations and individuals.
5. Payment services means the provision of a payment facility, conducting a domestic or international payment transaction, agency collection or agency payment, and other types of services as decided by the State Bank by organizations providing payment services at the request of persons using payment services.
6. Other organizations providing payment services means organizations which are licensed by the competent State body to conduct one or a number of payment services.
7. Payment facility means a cash or non-cash payment facility which is used with the aim of conducting a payment transaction.
8. Payment account means an account opened by a person using payment services at an organization providing payment services in order to conduct a payment transaction in accordance with the regulations of the State Bank.
9. Account owner means the person in whose name the account is opened. In the case of an account of an individual, the account owner shall be the individual in whose name the account is opened. In the case of an account of an organization, the account owner shall be the legal representative or authorized representative of the organization in the name of which the account is opened.
10. Joint account owners means two or more persons in whose joint names an account is opened.
11. Payment order means an order from an account owner to an organization providing payment services in the form of a paper voucher, electronic voucher, or some other form in accordance with the regulations of the competent State body, requesting the organization to conduct a payment transaction.
12. Overdraft means where a person using payment services pays out more than the amount of monies he, she or it has in his, her or its payment account when using payment services.
Article 4 Applicability of international treaties and international practice in payment operations with foreign countries
1. If there is an international treaty relating to international payment operations to which Vietnam is a signatory or participant and which contains provisions which are inconsistent with those in this Decree, then the provisions of such international treaty shall apply.
2. The parties participating in an international payment operation may agree on the applicability of international practice provided that it is not contrary to the law of Vietnam.
CHAPTER II
Opening and Using Payment Accounts
Article 5 Opening payment accounts
1. The State Bank may open payment accounts for domestic credit institutions, for other organizations providing payment services, for foreign banks, for monetary organizations and for international banks.
The State Bank may open payment accounts at foreign banks, at monetary organizations and at international banks.
2. Credit institutions being banks may open payment accounts for other credit institutions, for other organizations and for individuals. State owned commercial banks may open payment accounts for the State Treasury in districts and townships which are not provincial capitals.
Credit institutions may open payment accounts at the State Bank and at banks. Credit institutions being banks may open payment accounts at foreign banks if they are licensed by the State Bank to conduct international payment transactions.
3. The State Treasury may open payment accounts at the State Bank. In districts and townships which are not provincial capitals, the State Treasury may open a payment account at one State owned commercial bank.
4. Other organizations providing payment services may open payment accounts for persons using payment services in accordance with the regulations of the competent State body.
5. Persons using payment services shall have the right to select banks and other organizations providing payment services in order to open a payment account, unless otherwise provided by law.
Article 6 Using accounts and authorizing use of accounts
1. An account owner shall have the right to use the amount of monies in the payment account by way of payment orders in accordance with the regulations of the State Bank and other relevant laws.
2. When using a payment account, an account owner must comply with the provisions of this Decree and other relevant laws.
3. An account owner may provide a power of attorney authorizing another person to use the account in accordance with law. The authorized person shall have the same rights and obligations as the account owner within the scope of the power of attorney, but may not provide a further authority to a third person.
Article 7 Using joint accounts and authorizing use of joint accounts
In addition to the provisions in article 6 above, the use of a joint account and authorizing the use of a joint account must comply with the following provisions:
1. No payment transaction may be carried out in respect of the account unless approved by all joint owners.
2. A joint account owner may provide a power of attorney authorizing another person to use the account within the scope of his, her or its rights and obligations. The power of attorney must be created in writing in accordance with law.
3. If a joint account owner dies, disappears or loses civil legal capacity, the rights of such person to use the account and his, her or its obligations arising from such use shall be decided in accordance with law.
Article 8 Payment accounts, conditions and procedures for opening and using payment accounts
Organizations providing payment services shall issue regulations on the types and characteristics of their payment accounts and on the conditions and procedures for opening and using payment accounts, consistent with the State Bank regulations and other relevant laws.
Article 9 Freezing accounts
1. Part or all of the monies in a payment account may be frozen in the following circumstances:
(a) Upon agreement between the account owner and the organization providing the payment services;
(b) When a person authorized by law provides a decision or a written request in accordance with law;
(c) Other circumstances stipulated by law.
2. The freezing of a payment account shall terminate:
(a) Upon expiry of the period for freezing the account as agreed between the account owner and the organization providing the payment services;
(b) When a person authorized by law issues a decision or a request to terminate the freezing;
(c) When so stipulated by law.
Article 10 Closing accounts
1. An organization providing payment services may close a payment account in the following circumstances:
(a) At the request of an account owner;
(b) When an account owner being an individual dies, disappears or loses civil legal capacity;
(c) When an account owner being an organization terminates its operation in accordance with law.
2. An organization providing payment services shall have the right to decide to close an account when the account owner breaches the law on payment or breaches his, her or its agreement with the organization providing payment services; or when the account has a low balance and is not operated within a certain period as specified by the organization providing payment services.
3. Upon closing of an account, the balance of monies in it shall be dealt with as follows:
(a) Expenses shall be paid at the request of the account owner, or of his or her beneficiary or representative in the case of the death of an account owner, or of a guardian in the case of an account owner who loses civil legal capacity;
(b) Expenses shall be paid in accordance with any court decision;
(c) It shall be administered in accordance with the regulations of the organization providing payment services in the case where an account is closed pursuant to clause 2 of this article and the account balance is not returned to the account owner or his or her beneficiary or representative or guardian after the organization providing payment services has provided written notice of the closure to such account owner, beneficiary, representative, or guardian.
CHAPTER III
Using and Carrying Out Payment Services
Article 11 Payment services
1. Payment services shall comprise:
(a) Provision of a payment facility;
(b) Domestic payment services;
(c) International payment services;
(d) Agency collection and agency payment;
(dd) Other payment services as stipulated by the State Bank.
2. Payment services shall be carried out as follows:
(a) The State Bank shall carry out all of the payment services stipulated in clause 1 of this article for domestic credit institutions, for other organizations providing payment services, for foreign banks, for monetary organizations and for international banks.
(b) Banks may carry out the following payment services:
· Those stipulated in clause 1(a), (b) and (d) of this article for other credit institutions, organizations and individuals;
· Those stipulated in clause 1(c) of this article for other credit institutions, organizations and individuals if licensed by the State Bank;
· Other payment services as stipulated in clause 1(dd) of this article in accordance with the regulations of the State Bank.
(c) Other organizations may be licensed by the State Bank to carry out one or a number of the payment services stipulated in clause 1 of this article for organizations and individuals, if they fully satisfy all of the following conditions:
· It is necessary for them to carry out payment services and this is closely related to their main activities;
· They satisfy the conditions for material facilities appropriate to requests for and the conduct of payment services;
· They have a personnel team with sound knowledge of payment activities.
Article 12 Payment facilities
Payment facilities shall comprise:
(a) Cash;
(b) Cheques;
(c) Payment orders or authorized payment orders;
(d) Collection orders;
(dd) Bank cards;
(e) Other payment facilities in accordance with law.
Article 13 Providing cash
Organizations providing payment services shall be obliged to satisfy fully and promptly any request to deposit or withdraw cash from persons using payment services in accordance with law.
Article 14 Using payment services
Persons using payment services may select and use any payment services which are provided by an organization providing payment services in accordance with law.
Article 15 Ensuring ability to make payment
Persons using payment services must ensure there are sufficient monies in their payment account to carry out their payment orders, unless they have an overdraft arrangement agreed with the organization providing payment services.
Article 16 Carrying out payment orders
An organization providing payment services shall be obliged to carry out fully and promptly the payment order of a person using payment services in accordance with the arrangement agreed between the two parties provided that it is not inconsistent with law.
Article 17 Fees for payment services
Organizations providing payment services shall be entitled to collect fees from persons using payment services. Organizations providing payment services shall themselves decide on the level of fees, and shall list them publicly.
Article 18 Compensation for loss
Organizations providing payment services and persons using payment services shall be liable to pay compensation for loss caused to related parties by their breach of the regulations or of the arrangement agreed between the organization providing payment services and the person using payment services.
Article 19 Dispute resolution
Any dispute between an organization providing payment services and a person using payment services must first and foremost be resolved by agreement, but if it cannot be so resolved then it shall be resolved in accordance with law.
Article 20 Ensuring safety during payment
Organizations providing payment services shall provide regulations on measures to ensure safety during payment operations, and the persons using those payment services shall be obliged to comply with such regulations.
CHAPTER IV
Organizing and Participating in Payment Systems
Article 21 Organizing an internal payment system
1. Banks shall organize their own internal payment systems aimed at carrying our payment services between their subsidiary entities.
Any bank organizing its own internal payment system shall regulate the conditions, processes and procedures for participating in such payment system, and also the measures to ensure safety of such internal payment system.
2. The organization of internal payment systems by other organizations providing payment services shall be implemented in accordance with regulations of the competent State body.
Article 22 Organizing and participating in inter-bank payment system
1. The State Bank shall organize and participate in an inter-bank payment system in order to provide payment services as between members being the State Bank, credit institutions and other organizations providing payment services.
The State Bank shall regulate the conditions, processes and procedures for participating in the inter-bank payment system, and also the measures to ensure safety of such inter-bank payment system.
2. The State Bank shall organize the inter-bank payment system on the basis of the arrangements agreed between the parties, consistent with State Bank regulations.
3. Other organizations providing payment services shall be permitted to organize and participate in the inter-bank payment system when so licensed by the competent State body.
Article 23 Participating in international payment operations
1. The State Bank may participate in international payment operations in order to carry out a payment arrangement agreed with foreign banks, monetary organizations or international banks in accordance with law.
2. Before other banks and organizations providing payment services may participate in international payment operations, they must be licensed by the State Bank.
CHAPTER V
Regime on Information, Reporting, and Confidentiality of Information
Article 24 Rights and obligations regarding information, and reporting of organizations providing payment services
1. Organizations providing payment services shall have the right to require persons using such services to provide relevant information.
2. Organizations providing payment services shall be obliged to provide periodical information to account owners on payment transactions and the balance in their accounts.
3. At the request of account owners, organizations providing payment services may provide one-off reports to account owners on payment transactions and the balance in their accounts.
4. At the request of the State Bank, other banks and organizations providing payment services shall be obliged to provide the State Bank with information relating to the payment operations of such organization.
Article 25 Confidentiality of information
The confidentiality of information, storing of information, and provision of information relating to the deposits of persons using payment services of organizations providing them shall be implemented in accordance with law.
CHAPTER VI
Breaches and Dealing with Breaches
Article 26 Conduct which is prohibited
1. To falsify payment facilities.
2. To store, circulate, transfer or use false payment facilities.
3. To change or delete payment facilities or payment vouchers with the objective of defrauding.
4. To infiltrate or attempt to infiltrate, destroy or change illegally the computer program or database used in a payment services network.
5. To provide false information or falsify vouchers when there is a request to use payment services or during the process of their use.
6. To provide incorrectly in accordance with law information relating to the deposits of account owners at organizations providing payment services.
7. To cover up or carry out payment services in respect of accounts where there is evidence that their source was illegal.
Article 27 Dealing with breaches
Any person in breach of the provisions of this Decree shall, depending on the nature and seriousness of the breach, be subject to disciplinary measures, administrative penalty or criminal prosecution; and if such breach causes loss, shall be liable to pay compensation in accordance with law.
CHAPTER VII
Implementing Provisions
Article 28 Effectiveness
1. This Decree shall be of full force and effect as of 1 January 2002.
2. Decree 91-CP of the Government dated 25 November 1993 on Organization of Non-Cash Payments is hereby repealed.
3. Any previous provisions on payment which are inconsistent with the provisions in this Decree are hereby repealed.
Article 29 Responsibility for implementation
The Governor of the State Bank of Vietnam shall provide guidelines for implementation of this Decree.
Ministers, heads of ministerial equivalent bodies, heads of Government bodies, and chairmen of people's committees of provinces and cities under central authority shall be responsible for implementation of this Decree.
For the Government
The Prime Minister
PHAN VAN KHAI
