Decree No. 101/2012/ND-CP on Non-Cash Payment Transactions

DECREE

On Non-Cash Payments

_________________

 

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Pursuant to the Law on the State Bank of Vietnam No. 46/2010/QH12 dated June 16, 2010;

Pursuant to the Law on Credit Organizations No. 47/2010/QH12 dated June 16, 2010;

At the proposal of the Governor of the State Bank of Vietnam,

The Government promulgates the Decree on non-cash payments.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates activities related to non-cash payments, including opening and using payment accounts; non-cash payment services; payment intermediary services; organization, management, and supervision of payment systems.

Article 2. Applicability

1. Organizations providing non-cash payment services.

2. Payment intermediary service providers.

3. Organizations and individuals using non-cash payment services and payment intermediary services (hereinafter referred to collectively as service users).

Article 3. Foreign Currency Payments and International Payments

1. Foreign currency payments and international payments must comply with the provisions of the law on foreign exchange management or international agreements on payments that Vietnam has joined.

2. In international payments, if Vietnamese law does not provide for it, international customs shall be applied, provided they do not conflict with the fundamental principles of Vietnamese law.

Article 4. Definitions

In this Decree, the following terms are understood as follows:

1. Non-cash payment services (hereinafter referred to as payment services) include payment services through payment accounts and certain payment services not through customer payment accounts.

2. International payments are payment activities in which at least one party involved has a payment account outside the territory of Vietnam.

3. Organizations providing non-cash payment services (hereinafter referred to as payment service providers) include: the State Bank of Vietnam (hereinafter referred to as the State Bank), banks, branches of foreign banks, credit cooperatives, microfinance organizations, and other organizations.

Article 5. Responsibilities of the State Bank in Managing Non-Cash Payment Activities

1. Issuing normative legal documents on non-cash payments within its authority or submitting them for issuance by competent authorities.

2. Organizing, managing, operating, and supervising the national payment system; participating in organizing and supervising the operation of payment systems in the economy.

3. Granting, revoking Licenses, and supervising the provision of payment intermediary services.

4. Inspecting, auditing, supervising, and handling according to its authority any violations of the law by organizations and individuals related to non-cash payments.

5. Managing and supervising international cooperation activities in the field of payments.

1. Counterfeiting, altering, erasing, substituting payment instruments and payment documents; retaining, circulating, transferring, and using counterfeit payment instruments.

2. Intruding or attempting to intrude, destroying, or making unauthorized changes to software programs and electronic databases used in payments; exploiting system errors in computer networks for personal gain.

3. Providing false information during the provision and use of payment services and payment intermediary services.

4. Disclosing or providing information related to account holders' deposits at payment service providers in violation of the law.

5. Opening or maintaining anonymous or fraudulent payment accounts.

Chapter II

OPENING AND USING PAYMENT ACCOUNTS

Article 7. Opening and using payment accounts

The opening and use of payment accounts must be carried out through a contract between the parties, clearly defining the rights and responsibilities of each party in accordance with the provisions of the law.

Article 8. Opening and using payment accounts for the State Bank

2. The State Bank opens payment accounts for central banks of other countries, foreign banks, international monetary organizations, and international banks according to international treaties to which Vietnam is a member. In cases where Vietnam has not yet become a member, the opening of payment accounts shall be carried out according to the decision of the Prime Minister.

3. The State Bank opens payment accounts at the central banks of other countries and carries out payment transactions abroad according to international treaties to which Vietnam is a member.

Article 9. Opening and using payment accounts between credit organizations

1. The opening and use of payment accounts between credit organizations must comply with the provisions of the Law on Credit Organizations. Payment accounts opened between credit organizations are only for the purpose of payment and may not be used for other purposes.

2. The State Bank permits commercial banks and foreign bank branches operating in foreign exchange to open foreign currency payment accounts. The opening and use of foreign currency payment accounts shall be carried out in accordance with the laws on foreign exchange.

Article 10. Opening payment accounts for individuals and organizations that are not credit organizations

1. Banks and foreign bank branches guide customers in opening payment accounts in accordance with the regulations of the State Bank and other relevant laws.

3. A joint payment account is a payment account with at least two subjects jointly named as account holders. Joint payment account holders can be organizations or individuals. The purpose of using a joint payment account, the rights and obligations of joint payment account holders, and related regulations on the use of joint accounts must be clearly defined in writing.

Article 11. Using and authorizing the use of payment accounts

1. Account holders may use payment accounts to deposit, withdraw cash, and request service providers to execute valid payment transactions. Account holders have the right to request service providers to provide information about transactions and balances on the payment account.

2. Account holders may authorize others in writing to use payment accounts for a limited time in accordance with the law.

3. Account holders are obligated to comply with the regulations on opening and using payment accounts of service providers and must ensure there is sufficient money in the payment account to execute payment orders issued, except where otherwise agreed with the service provider.

4. Service providers are obligated to fully and promptly execute valid payment orders from account holders.

5. Service providers have the right to refuse to execute invalid payment orders from account holders, or when there is insufficient money in the payment account, except where otherwise agreed. In case of refusal, the service provider must immediately notify the account holder of the reason.

Article 12. Temporary Locking and Freezing of Payment Accounts

1. A payment account may be temporarily locked (suspended from transactions) partially or entirely at the request of the account holder or pursuant to a prior agreement between the account holder and the service provider.

2. A payment account shall be frozen partially or entirely in the following cases:

d) When there is a dispute among joint account holders.

3. The lifting of the freeze on a payment account shall be carried out when there is a decision from an authorized agency as provided by law or when disputes as stipulated in Clause 2 of this Article have been resolved.

4. If freezing a payment account contravenes the law and causes damage to the account holder, the entity issuing the freeze order shall bear responsibility for compensation according to the law.

Article 13. Closing of Payment Accounts

1. Closing of a payment account shall be carried out when:

a) The account holder requests it and has fulfilled all obligations related to the payment account;

b) The account holder, being an individual, dies, goes missing, or loses civil capacity;

c) An organization with a payment account ceases operations as prescribed by law;

d) The account holder breaches the contract for opening and using the payment account with the service provider;

đ) The account holder or the service provider breaches Article 6 of this Decree and other relevant laws in payment activities;

f) Other cases as prescribed by law.

2. Handling of remaining balances upon closing of payment accounts:

a) Payment according to the request of the account holder or the lawful heir, or the legal representative of the heir in case the account holder is an individual who has died or gone missing, or according to the request of the lawful guardian in case the account holder has lost civil capacity;

b) Payment according to a court's decision;

c) Handling according to the law in cases where the lawful beneficiary of the balance on the account has been notified but has not come to claim it.

Chapter III

PAYMENT SERVICES AND INTERMEDIARY PAYMENT SERVICES

Article 14. Payment Services

1. Payment services through customer payment accounts include:

a) Providing means of payment;

b) Executing check, payment order, direct debit, collection, direct credit, bank card, letter of credit, money transfer, collection on behalf, payment on behalf services;

c) Other payment services.

2. Payment services through customer payment accounts shall be provided:

a) The State Bank provides payment services to customers who open payment accounts at the State Bank;

b) Commercial banks, foreign bank branches, policy banks provide all payment services specified in Clause 1 of this Article;

c) Cooperative banks are allowed to provide some of the payment services specified in Clause 1 of this Article after approval by the State Bank.

4. Payment services not through customer payment accounts shall be provided:

a) Banks specified in Clause 2 of this Article provide non-account-based payment services to customers;

b) Credit unions provide money transfer services and perform collection on behalf and payment on behalf transactions for their members;

c) Microfinance organizations provide collection on behalf, payment on behalf, and money transfer services to microfinance clients;

d) Other organizations providing non-account-based payment services operate in accordance with regulations set by the State Bank.

1. Payment intermediary services include:

a) Electronic payment infrastructure service;

b) Payment support service;

c) Other payment intermediary services as prescribed by the State Bank.

2. Conditions for providing payment intermediary services

Non-bank organizations wishing to provide payment intermediary services must ensure they meet the following conditions:

a) Possess a business registration certificate issued by competent state authorities, wherein the provision of payment intermediary services is one of the main business activities of the organization;

b) Have a business plan for payment intermediary services approved according to the investment authority provisions in the organization's charter;

c) Have a minimum paid-in capital of 50 billion VND;

d) Personnel conditions:

The法定代表人、总经理（或经理）of the organization applying for permission must have professional qualifications or practical experience in business management or the field they oversee.

The staff implementing payment intermediary services must have professional qualifications in their respective fields.

e) Technical and operational conditions include: material and technical infrastructure suitable for the requirements of payment intermediary service provision and regulations of the State Bank; an independent backup system ensuring safe and continuous service provision when the main system fails; technical and operational procedures during payment intermediary service provision ensuring safety, confidentiality, and compliance with current laws on electronic transactions; internal inspection and control procedures for payment intermediary services in electronic transactions as stipulated by current laws.

Article 16. Procedures, formalities, documents for issuing, revoking, and reissuing the Business License for Providing Payment Intermediary Services

1. Procedures and formalities for issuing the Business License

a) The organization applying for the Business License shall submit the application documents (including five sets) through postal service or directly to the State Bank as prescribed in Clause 2 of this Article. The organization applying for the Business License shall bear full responsibility under the law for the accuracy and truthfulness of the provided information;

b) Based on the application documents, the State Bank will review the documents according to the conditions stipulated in Clause 2, Article 15 of this Decree;

c) Within sixty days from the date of receiving complete valid documents, the State Bank will assess and issue the Business License or issue a document refusing issuance stating the reasons;

d) Organizations granted the Business License for providing payment intermediary services must pay fees as prescribed by law.

2. Application documents for issuing the Business License for Providing Payment Intermediary Services include:

a) An application form for the Business License as prescribed by the State Bank;

b) Minutes or Resolutions of the Board of Members, Board of Directors (or Shareholders' Meeting as stipulated in the Organization's Charter) approving the proposal for providing payment intermediary services;

c) Proposal for providing payment intermediary services;

d) Technical solution description and acceptance test report with a cooperating organization;

3. Validity period of the Business License

The validity period of the Business License is ten years from the date the organization is granted the Business License by the State Bank.

4. Revocation of the Business License

a) The licensed organization will have its Business License revoked and must cease providing payment intermediary services in any of the following cases:

Within six months from the date of obtaining the Business License, if the organization does not commence the provision of the licensed payment intermediary services without a legitimate reason; within three months from the date the State Bank issues a notification to the organization for violating any of the conditions stipulated in Clause 2, Article 15 of this Decree and must take corrective measures but fails to do so; the organization is dissolved or declared bankrupt as prescribed by relevant laws.

b) Procedures and formalities for revoking the Business License:

When the licensed organization violates any of the circumstances specified in point a, Clause 4 of this Article, the State Bank will send a written notice to the licensed organization informing about the revocation of the Business License and stating the reasons for revocation. The State Bank will publicly announce the revocation of the Business License on its official website.

Upon receipt of the written notice from the State Bank regarding the revocation of the Business License for providing payment intermediary services, the organization whose license has been revoked must immediately cease providing payment intermediary services.

Within thirty days from the date of receiving the State Bank's notice, the organization whose license has been revoked must submit a written notice to related organizations and individuals to settle contracts and fulfill all obligations and responsibilities between the parties.

5. Reissuance of the Business License

Within thirty days from the date of receiving the request for reissuance of the Business License from the organization, the State Bank will consider and reissue the Business License or issue a written notice refusing reissuance stating the reasons in the following cases:

a) Expiry of the Business License

At least sixty days before the expiry of the Business License, the organization holding the Business License must submit a request for reissuance and a copy of the currently valid Business License to the State Bank.

b) Revocation of the Business License

After six months from the date all causes for revocation of the Business License have been fully rectified, the organization whose Business License was revoked must submit a statement explaining and requesting reissuance of the Business License to the State Bank.

c) Amendment and Supplement to the Business License

When there is a need to change the content stipulated in the Payment Organization License, the organization must submit a written request detailing the proposed changes and the reasons for changing the content of the License, along with a copy of the currently valid License to the State Bank.

d) In the case where the License is lost or damaged and cannot be used, the organization must submit a written request for reissue of the License, clearly stating the reasons, to the State Bank.

Article 17. Service Fees

1. Organizations providing payment services and organizations providing intermediary payment services shall set and publicly display the service fee levels.

2. In cases where banking operations exhibit unusual developments, to ensure the safety of credit institutions, the State Bank shall establish mechanisms for determining payment service fees and intermediary payment service fees.

Article 18. Compensation for Damages

Organizations providing payment services, organizations providing intermediary payment services, and users of such services have the responsibility to compensate for damages caused by violations of agreements between the parties and as provided by law.

Article 19. Resolution of Disputes

In the absence of an agreement on terms related to dispute resolution in contracts, the provisions of the law shall apply.

Article 20. Ensuring Safety in Payments

Organizations providing payment services and organizations providing intermediary payment services must implement measures to ensure safety in payments as prescribed by law. Users of services have the obligation to comply with safety measures in payments as prescribed and guided by service-providing organizations.

Chapter IV

INFORMATION, REPORTING AND INFORMATION SECURITY

Article 21. Rights Regarding Information and Reporting

1. The State Bank has the right to require organizations providing payment services and organizations providing intermediary payment services to provide information related to payments periodically and urgently.

2. Organizations providing payment services and organizations providing intermediary payment services have the right to request users of their services to provide relevant information when using their services.

Article 22. Obligations Regarding Information and Reporting

1. Organizations providing payment services and organizations providing intermediary payment services have the obligation to report and provide information to competent state agencies as prescribed by law.

2. Organizations providing payment services and organizations providing intermediary payment services have the obligation to provide transaction information and account balances to account holders according to agreements.

Article 23. Information Security

1. Right to Refuse Provision of Information

Organizations providing payment services and organizations providing intermediary payment services have the right to refuse requests from organizations and individuals for information about account holders, transactions, and account balances of customers, except in cases required by competent state agencies as prescribed by law or with the consent of the account holder.

2. Obligation to Protect Information

Organizations providing payment services and organizations providing intermediary payment services have the responsibility to keep confidential information related to account holders, transactions, and account balances of users of their services, except as otherwise provided by law.

Chapter V

ORGANIZATION, MANAGEMENT, OPERATION AND SUPERVISION

PAYMENT SYSTEMS

Article 24. Organization, management, operation, and supervision of the national payment system

1. The State Bank organizes, manages, operates, and supervises the national payment system to ensure the smoothness, safety, and efficiency of payment activities within the banking system, contributing to maintaining stable and safe development of the national financial system.

2. The State Bank stipulates conditions, procedures, and formalities for participating in the national payment system, as well as measures to ensure the safety of the national payment system's operations.

Article 25. Organization, operation, and supervision of the internal payment system

1. Payment service providers organize, operate, and supervise the internal payment system to ensure the safe and quality provision of account-based payment services to customers and effective capital regulation within the system.

2. Payment service providers prescribe procedures and measures to ensure the safety of the internal payment system's operations.

Article 26. Supervision of payment systems in the economy

1. The State Bank develops strategies, policies, and regulations on the supervision of payment systems to ensure the stable, safe, and efficient operation of payment systems in the economy.

2. The State Bank sets criteria and identifies important payment systems subject to State Bank supervision.

3. The State Bank supervises payment systems through remote monitoring, on-site inspections, and other necessary measures.

4. Organizations operating payment systems are responsible for complying with regulations and recommendations on supervision issued by the State Bank; issuing internal regulations on risk control and ensuring continuous system operation.

Chapter VI

IMPLEMENTING PROVISIONS

Article 27. Effective Date

1. This Decree takes effect from March 26, 2013.

2. This Decree replaces Government Decree No. 64/2001/NĐ-CP dated September 20, 2001, on payment activities through payment service providers.

Article 28. Responsibility for Implementation

1. The Governor of the State Bank of Vietnam is responsible for guiding the implementation of this Decree.

2. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial and centrally governed city People's Committees are responsible for implementing this Decree./.