Tóm tắt Nghị định số 166/1999/NĐ-CP về Chế độ Tài chính đối với các Tổ chức Tín dụng
Nghị định số 166/1999/NĐ-CP ban hành ngày 19 tháng 11 năm 1999 là văn bản pháp lý quan trọng đặt nền móng cho việc quản lý và vận hành cơ chế tài chính của các tổ chức tín dụng hoạt động tại Việt Nam. Dưới đây là phần tóm tắt chi tiết và phân tích chuyên sâu về phần mở đầu cùng các điều khoản đầu tiên (từ Điều 1 đến Điều 4) của Nghị định này.
1. Phạm vi điều chỉnh và Đối tượng áp dụng (Điều 1)
Điều 1 của Nghị định xác định rõ giới hạn pháp lý và các thực thể chịu sự điều chỉnh của quy chế tài chính này. Theo đó, đối tượng áp dụng bao gồm toàn bộ các tổ chức tín dụng được thành lập và hoạt động hợp pháp tại Việt Nam theo quy định của Luật Các tổ chức tín dụng. Các loại hình tổ chức tín dụng cụ thể bao gồm:
- Các tổ chức tín dụng nhà nước bao gồm ngân hàng thương mại nhà nước và các công ty tài chính nhà nước.
- Các tổ chức tín dụng cổ phần của Nhà nước và nhân dân.
- Các tổ chức tín dụng hợp tác bao gồm hợp tác xã tín dụng và hệ thống quỹ tín dụng nhân dân.
- Các tổ chức tín dụng liên doanh và tổ chức tín dụng 100% vốn nước ngoài hoạt động tại Việt Nam.
- Các chi nhánh ngân hàng nước ngoài được phép hoạt động tại lãnh thổ Việt Nam.
Việc quy định bao quát toàn bộ các loại hình tổ chức tín dụng giúp tạo ra một hành lang pháp lý thống nhất, bình đẳng nhưng vẫn đảm bảo tính đặc thù cho từng nhóm đối tượng trong nền kinh tế thị trường.
2. Nguyên tắc quản lý tài chính và tự chủ kinh doanh (Điều 2)
Điều 2 thiết lập các nguyên tắc cốt lõi trong hoạt động tài chính của tổ chức tín dụng, nhấn mạnh quyền tự chủ và trách nhiệm tự chịu rủi ro của doanh nghiệp:
- Tự chủ về tài chính: Các tổ chức tín dụng được quyền tự chủ trong việc tổ chức hoạt động kinh doanh, huy động vốn, cho vay và thực hiện các dịch vụ ngân hàng theo quy định của pháp luật.
- Tự chịu trách nhiệm: Tự chịu trách nhiệm về kết quả hoạt động kinh doanh, bảo toàn và phát triển vốn của tổ chức tín dụng.
- Nghĩa vụ với Nhà nước: Thực hiện đầy đủ các nghĩa vụ nộp thuế và các khoản nộp ngân sách nhà nước khác theo quy định của pháp luật hiện hành.
- Bảo đảm an toàn hệ thống: Phải thực hiện nghiêm túc các biện pháp bảo đảm an toàn trong hoạt động theo quy định của Ngân hàng Nhà nước Việt Nam và các quy định tài chính đặc thù.
3. Trách nhiệm quản lý nhà nước về tài chính (Điều 3)
Điều 3 phân định rõ thẩm quyền và trách nhiệm của các cơ quan quản lý nhà nước đối với chế độ tài chính của tổ chức tín dụng nhằm tránh chồng chéo chức năng:
- Bộ Tài chính: Là cơ quan chịu trách nhiệm trước Chính phủ thực hiện chức năng quản lý nhà nước về tài chính đối với các tổ chức tín dụng; ban hành các văn bản hướng dẫn cụ thể về chế độ thu, chi, trích lập các quỹ và hạch toán kế toán.
- Ngân hàng Nhà nước Việt Nam: Phối hợp chặt chẽ với Bộ Tài chính trong việc kiểm tra, giám sát việc thực hiện chế độ tài chính của các tổ chức tín dụng, bảo đảm sự thống nhất giữa chính sách tiền tệ và chính sách tài khóa.
4. Quy định về năm tài chính (Điều 4)
Điều 4 quy định thống nhất về chu kỳ kế toán và báo cáo tài chính của các tổ chức tín dụng:
- Năm tài chính của các tổ chức tín dụng bắt đầu từ ngày 01 tháng 01 và kết thúc vào ngày 31 tháng 12 dương lịch hàng năm.
- Quy định này giúp đồng bộ hóa kỳ báo cáo tài chính của hệ thống tổ chức tín dụng với niên độ ngân sách nhà nước và kỳ báo cáo của toàn bộ nền kinh tế, tạo điều kiện thuận lợi cho công tác tổng hợp, thống kê và thanh tra, giám sát tài chính định kỳ.
| THE GOVERNMENT | SOCIALIST REPUBLIC OF VIET NAM |
| No: 166/1999/ND-CP | Hanoi, November 19, 1999 |
ON THE FINANCIAL REGIME FOR CREDIT INSTITUTIONS
THE GOVERNMENT
Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to Law No.02/1997/QH10 of December 12, 1997 on Credit Institutions;
At the proposal of the Finance Minister,
DECREES:
Article 1.- Scope of regulation
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Article 2.- Financial management principles
1. Credit institutions are financially autonomous, take self-responsibility for their business activities and perform their obligations and commitments according to the provisions of law.
2. Credit institutions shall have to conduct the financial publicity.
MANAGEMENT AND USE OF CAPITAL AND PROPERTY
Article 5.- A credit institution’s operational capital shall come from the following sources:
1. The statutory capital;
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3. The differences brought about by the revaluation of properties and exchange rate differences;
4. The reserve fund to supplement the statutory capital, the professional development investment fund, the financial reserve fund, the job severance allowance reserve fund, the reward fund and the welfare fund;
5. The retained profits which have not yet been distributed to the funds;
6. The loan capital in form of individuals’ and economic organizations’ deposits, issuance of valuable papers, borrowings from domestic and foreign credit institutions and borrowings from the State Bank;
7. Other capital sources prescribed by law.
2. Credit institutions may change their capital and property structures in service of development of their business activities.
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2. The Managing Boards of credit institutions shall decide the plans on capital contribution, stock purchase or joint venture with domestic economic organizations, provided that such capital amount shall not exceed the maximum level defined by the State Bank.
3. In case of capital contribution to, stock purchase from or joint venture with foreign investors, the chairmen of the Managing Boards of credit institutions shall report such to the State Bank Governor for approval.
1. To strictly comply with the regime of capital and property management and use according to the provisions of the Law on Credit Institutions and this Decree.
2. To fully maintain the safety ratios in operations of credit institutions as prescribed by law.
3. To buy insurance for properties according to law provisions.
4. To join the Deposit Insurance or Deposit Preservation in order to protect the legitimate interests of money depositors, contributing to the maintenance of credit institutions’ stability.
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a/ The reserve for risks in operations of credit institutions. The deduction level and use of the contingency reserve to handle risks in banking activities shall be stipulated by the State Bank Governor after consulting the Minister of Finance;
b/ The reserve for reduction of prices of unsaleable goods;
c/ The reserve for decrease in the stocks’ value.
Article 10.- Inventory and re-evaluation of properties
1. Credit institutions shall have to inventory and re-evaluate their properties in the following cases:
a/ To inventory and re-evaluate properties periodically and at the end of a fiscal year. To accurately determine the properties in excess or deficit, the debt situation, the overdue debts, the unrecoverable debts; and to determine causes and responsibility therefor;
b/ To inventory and re-evaluate properties by decisions of the competent State agencies;
c/ To effect the equitization or diversification of the ownership forms;
d/ To use their properties to enter joint ventures, contribute stock capital or recover properties after the joint ventures terminate their operations.
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1. If losses are caused by collectives and individuals, such collectives and individuals shall have to pay compensation therefor as prescribed by law.
2. If the property has been insured, the losses shall be handled according to the insurance contracts.
3. The reserve which has been set up with deductions from expenditures shall be used to cover losses as prescribed by law.
4. The loss value, if not fully offset by compensations of individuals, collectives, insurance organizations and reserve set up with deductions from expenditures, shall be made up for by the financial reserve fund of the credit institution. Where the financial reserve fund is not enough to make up for the loss, the deficit shall be accounted into the irregular expenditure in the period.
2. When leasing, pledging or mortgaging properties being technologies related to professional operations of the whole system, credit institutions must get written consent from the State Bank.
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2. When selling their properties, credit institutions shall have to re-evaluate such properties and organize auctions in cases where laws require auctions.
3. The differences between the proceeds from the sale of properties and the remaining value of the sold properties as well as the sale expenses shall be accounted into the business results of credit institutions.
2. When liquidating their properties, credit institutions shall have to set up liquidation councils; in case of the sale of liquidated properties, auctions must be held according to the provisions of law.
3. The differences between the proceeds gained from the property liquidation and the remaining value of liquidated properties as well as the property liquidation costs shall be accounted into the credit institutions’ business results.
REVENUES, EXPENDITURES AND BUSINESS RESULTS
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1. Revenues from professional activities:
a/ Revenue from loan interests;
b/ Revenue from deposit interests;
c/ Revenue from financial leasing operation;
d/ Other revenues from credit activities;
e/ Revenue from payment service;
f/ Revenue from the collection of guaranty charges;
g/ Revenue from the collection of treasury service charges;
h/ Revenue from the collection of deduction service charges;
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2. Revenues from other activities:
a/ Revenue from interests of capital contribution and stock purchase;
b/ Revenue from participation in the monetary market;
c/ Revenue from gold, silver and foreign currency trading;
d/ Revenue from consignment and agency activities;
e/ Revenue from insurance service;
f/ Revenue from consultancy service;
g/ Revenue from debt sale and purchase between credit institutions;
h/ Revenue from property leasing;
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3. The revenue from reimbursement of reserves set up with deductions from expenditures according to the current regulations; revenue from capital sources which have been dealt with by the contingency reserve; and revenue from exchange rate differences as prescribed.
4. Other revenues.
1. Expenses for business activities of credit institutions:
a/ Expenses for the payment of deposit interests; expenses for the payment of loan interests; and banking service expenses.
b/ Expenses for the depreciation of fixed assets used for business and service activities. The depreciation levels shall comply with the general provisions set for enterprises.
c/ Salaries, wages and expenses of salary and wage nature, which credit institutions have to pay to laborers; allowances for part-time personnel as prescribed. The levels of salary and wage expenses shall be based on the law provisions and labor contracts signed between the credit institutions and laborers, ensuring the following principles:
- For the State credit institutions, the salary and wage regime prescribed for State enterprises shall apply.
- For other credit institutions, the wage levels paid to laborers shall be decided by the Managing Boards, based on the agreements in the labor contracts signed between the credit institutions and laborers according to the provisions of the Labor Code, which must not exceed the maximum wage level set for the determination of the taxable profit by the local People’s Committees.
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e/ Expenses for the procurement of services from outside such as transportation, electricity, water, telephone, materials, printing papers, stationery, labor tools, repair of fixed assets, fire prevention and combat, consultancy, auditing, property insurance, payment of commissions, brokerage agency, consignment and other services.
f/ Other expenses:
- Excise, land use tax or land rents, land and house taxes, other taxes, charges and fees.
- Expenses for advertisement, marketing, trade promotion, guest reception, ceremonies, transactions, external relations, conferences and other expenses. For newly set up credit institutions, these expenses must not exceed 7% of the yearly total expenditures in the first two (2) years and 5% in the subsequent years.
- Expenses for labor protection.
- Expenses for job severance allowances for laborers according to the provisions of law.
- Expenses paid to female laborers according to prescribed regimes.
- Working-shift meal expenses for officials and employees of the credit institutions with the level not exceeding the minimum wage level set by the State for State employees.
- Expenses for professional and trade associations and societies which credit institutions participate in.
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- Expenses for the reward of innovations and thrifty use of materials as prescribed.
- Expenses for scientific research and techno-logical renovation studies; expenses for innovations, laborer training, raising of laborers’ professional and managerial skills; expenses in support of education (if any); medical expenses for laborers of credit institutions according to the law provisions.
- Expenses for the institutions’ security.
- Expenses for warehouse and fund operation.
- Expenses for environmental protection. If the yearly expenditures are large and to be effected in many years, it shall be distributed to the subsequent years.
- Expenses for the payment of fines on breaches of economic contracts.
2. Other expenses for operations of credit institutions, including:
a/ Expenses for foreign currency, gold and silver trading.
b/ Expenses for the sale and purchase of stocks and bonds.
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d/ Expenses for the sale and liquidation of properties (including the remaining value of properties and the sale and liquidation costs).
e/ Expenses for joint venture operations, business cooperation and stock capital contribution.
f/ Expenses for debt sale and purchase between credit institutions.
g/ Expenses for the recovery of the already forgiven debts, expenses for fine collection.
h/ The remaining property loss value after having been offset by the sources stipulated at Point 4, Article 12 of this Decree.
i/ Other permitted expenses.
1. Fines paid by collectives and/or individuals for law violations while they are on duty.
2. Expenses not related to business activities of credit institutions such as expenses for capital construction, expenses in support of laborers meeting with difficulties, expenses in support of other organizations and/or individuals.
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4. Expenses covered by other funding sources: non-business expenses, expenses for rewards, welfare, regular and irregular allowances for people meeting with difficulties and expenses covered by other funding sources.
5. Other unreasonable expenses.
2. Where economic operations arise in foreign currency(ies), such currency(ies) must be converted into Vietnam dong according to the stipulations of the Finance Ministry.
PROFITS AND DEDUCTIONS FOR ESTABLISHMENT OF FUNDS
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A State credit institution’s profits left after the payment of enterprise income tax prescribed by law shall be distributed as follows:
1. To deduct 5% for the establishment of the reserve fund for supplement to the statutory capital. The maximum level of this fund must not exceed the actual statutory capital level of the credit institution.
2. To offset the preceding years’ losses which must not deducted from the pre-enterprise income tax profit.
3. To pay fees for the use of the State budget capital.
4. To pay fines on the law violations under the credit institution’s responsibility.
5. The profit left after subtracting the above-said expenses shall be distributed as follows:
a/ 10% -for the establishment of the financial reserve fund, the balance of which must not exceed 25% of the credit institution’s statutory capital.
b/ 50%- for the professional development investment fund.
c/ 5%- for the job losing allowance fund, the balance of which must not exceed six (6) months’ actual salary amount.
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- 3 months’ actual salary amount, if the profit ratio of the current year is not lower than that of the preceding year.
- 2 months’ actual salary amount, if the profit ratio of the current year is lower than that of the preceding year.
The Managing Board of the credit institution shall, after consulting the trade union of the credit institution, decide the deduction proportion for each fund.
e/ The profit left after deduction for the establishment of the reward and welfare funds shall be added to the professional development investment fund.
Article 23.- Distribution of profits by other credit institutions:
The other credit institutions’ profits left after the payment of enterprise income tax shall be distributed as follows:
1. To set up the reserve fund for supplement to the statutory capital, offset losses of the previous years and pay fines on the law violations according to the provisions of Clauses 1, 2 and 4, Article 22 of this Decree.
2. The remaining profit shall be distributed as follows:
a/ 10%- for the financial reserve fund, the balance of which must not exceed 25% of the credit institution’s statutory capital.
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3. The distribution of profits left after the establishment of the funds stipulated Clauses 1 and 2 of this Article shall be decided by the credit institutions themselves.
Article 24.- Principles for the use of funds:
1. The reserve fund for supplement to the statutory capital shall be used to supplement the statutory capital.
2. The professional development investment fund shall be used to invest in the expansion of business activities and renovation of technologies, equipment and improvement of working conditions of a credit institution.
Basing itself on the investment demand and the fund’s capacity, the Managing Board of the credit institution shall decide the investment forms and measures on the principle of efficiency, safety and development of capital.
3. The financial reserve fund shall be used to offset the remaining losses and property damage incurred in the business process after they have been made up for by compensation from organizations and/or individuals that have caused such losses or damage, insurance organizations and the reserve funds.
4. The job losing allowance fund shall be used to support laborers who have worked in a credit institution for one (1) year or more but have temporarily lost their jobs under the law provisions; to spend on the professional and technical re-training for laborers due to the technological changes or transfer to new jobs; train reserve jobs for female laborers of the credit institution and raise the professional skills of officials and employees working therein.
5. The reward fund shall be used for:
a/ The year-end reward or periodical reward of officials and employees in the credit institution. The reward levels shall be decided by the Managing Board of the credit institution at the proposal of the general director (director) and trade union of the credit institution, based on the labor productivity and work achievements of each official and employee in the credit institution.
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c/ The reward of individuals and units outside the credit institution that have economic relations with the latter and have well fulfilled the contractual terms, efficiently contributing to the credit institution’s business activities. The reward levels shall be decided by the Managing Board of the credit institution.
6. The welfare fund shall be used for:
a/ Investment in the construction or repair or addition of capital for the construction of welfare projects of the credit institution; contribution of investment capital for the construction of public facilities within the branch or jointly with other units according to the contracts.
b/ Expenses for sport, cultural and public welfare activities of the collective of officials and employees of the credit institution.
c/ Contribution to the social welfare fund.
d/ Expenses for regular and irregular allowances for the credit institution’s officials and employees meeting with difficulties.
e/ Expenses for other welfare activities.
The general director (director) of the credit institution shall coordinate with the executive committee of the trade union of the credit institution to manage and use this fund.
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2. A fiscal year of credit institutions shall commence from January 1st and end on December 31 of the calendar year.
a/ The balance sheet of the credit institution, enclosed with the detailed explanation on the increase, decrease, fluctuation of capital sources and use of capital.
b/ The report on business results and situation of revenue remittance to the State budget.
c/ The report on labor and wage implementation by the credit institution.
2. The time-limit for sending the above-mentioned reports shall comply with the regulations of the Finance Ministry and the General Department of Statistics.
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1. A credit institution shall have to organize internal audit of its financial reports.
2. Within 30 days before the end of a fiscal year, the credit institution shall have to hire an independent auditing organization lawfully operating in Vietnam to audit its financial reports. The selected auditing organization must be approved by the State Bank. The results of auditing the credit institution’s financial reports must be sent to the State financial agencies and the State Bank.
RESPONSIBILITIES OF THE MANAGING BOARDS, GENERAL DIRECTORS AND DIRECTORS OF CREDIT INSTITUTIONS
Article 30.- Responsibility of a credit institution’s Managing Board
1. To exercise the function of management over the credit institution; within its competence, to inspect and oversee the financial operations of the credit institution.
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3. To submit to the State Bank Governor plans on capital contribution, stock purchase and joint venture with foreign investors for consideration, decision and reporting to financial management agencies of the same level.
4. To ratify plans on capital mobilization, use, preservation and development as well as plans on the use of after-tax profits, which are submitted by the general director (director) of the credit institution, and take responsibility for its decisions.
5. To approve the annual financial reports of the credit institution and publicize the financial reports as prescribed; to approve the long-term and annual financial plans submitted by the general director (director) of the credit institution.
6. To inspect and supervise the general director (director) of the credit institution in the capital use, preservation and development and organization of business activities according to plans and projects already approved by the credit institution’s Managing Board and fulfill the obligations toward the State budget.
7. To take responsibility for the accuracy and truthfulness of the reports on business results of the credit institution, the distribution and use of the after-tax profits in strict compliance with the regulations.
8. To perform other obligations as prescribed by law.
Article 31.- Responsibility of the general director (director) of a credit institution
1. To act as the legal representative of the credit institution, run the operations of the credit institution and take responsibility before the Managing Board, the State Bank Governor, law and financial agency for the administration of operations of the credit institution.
2. To join the chairman of the Managing Board in signing for reception of capital, land, natural resources and other resources assigned by the State and shareholders.
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4. To take responsibility for the mobilization and use of capital sources for business activities; to nominate personnel to manage investment capital as well as capital for joint venture and business cooperation with other enterprises; to take material liability for damage caused to the credit institution by his/her subjective faults.
5. To elaborate the spending norms in conformity with the business conditions of the credit institution.
6. To take responsibility for the accuracy and truthfulness of the financial reports, statistical reports, final account settlement reports and other financial information.
7. To elaborate annual financial plans in conformity with the business plan to be submitted to the Managing Board for approval and send them to the State financial agencies according to the stipulations of the Finance Ministry.
8. To fulfill other obligations as prescribed by law.
FINANCIAL PLANS, EXAMINATION AND INSPECTION
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b/ A plan on its revenues, expenditures, business results and State budget remittance quotas.
c/ A plan on its labor and wages.
2. The above-mentioned plans of the credit institutions must be approved by their Managing Boards and at the same time sent to the State financial agencies and State Bank before November 15 of the year preceding the plan year.
The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
- 1 Circular No. 97/2000/TT-BTC of October 12, 2000 guiding the application of the financial regime to grassroots People’s Credit Funds and Regional People’s Credit Funds
- 2 Circular No.98/2000/TT-BTC of October 12, 2000 guiding the application of financial regimes to The Central People’s Credit Fund
- 3 Circular No.92/2000/TT-BTC of September 14, 2000 guiding the implementation of The Government’s Decree No. 166/1999/ND-CP on the financial regimes applicable to credit institutions
- 1 Circular No.189/1998/TT-BTC, guiding the financial management of stock credit institution, promulgated by the Ministry of Finance
- 2 Decree No. 146/2005/ND-CP of November 23, 2005, on financial regime applicable to credit institutions.
- 3 Decree No. 146/2005/ND-CP of November 23, 2005, on financial regime applicable to credit institutions.
- 1 Decree No. 57/2012/ND-CP of July 20, 2012, on the financial regulations applicable to branches of foreign banks
- 2 Circular No. 97/2000/TT-BTC of October 12, 2000 guiding the application of the financial regime to grassroots People’s Credit Funds and Regional People’s Credit Funds
- 3 Circular No.98/2000/TT-BTC of October 12, 2000 guiding the application of financial regimes to The Central People’s Credit Fund
- 4 Circular No.92/2000/TT-BTC of September 14, 2000 guiding the implementation of The Government’s Decree No. 166/1999/ND-CP on the financial regimes applicable to credit institutions
- 5 Law No. 07/1997/QH10 of December 12, 1997 on credit institutions