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What is a loan trust? What are the characteristics of entrustment and lending entrustment? Contents of the trust contract? Rights and obligations of the entrusting party and the entrusting party? Which cases are not entrusted or entrusted?

Loan entrustment is one of the issues of much concern today, however, to understand clearly the rights and obligations of the parties in the loan entrustment contract is not clear to everyone. So what is a loan trust? How are entrustment and loan acceptance regulated by law?

Legal basis: Circular 30/2014/TT-NHNN dated November 6, 2014 providing for entrustment and entrustment of credit institutions, foreign bank branch.

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1. What is a loan trust?

Entrustment means a party (entrusting party) assigning capital in cash to another party (entrusting party) to carry out lending activities; financial leasing; capital contribution, share purchase; invest in production and business projects; buying corporate bonds for the trustee, the entrusting party bears all risks, the entrusting party is entitled to the entrustment fee.

According to the provisions of Clause 3, Article 3 of Circular 30/2014/TT-NHNN dated November 6, 2014 providing for entrustment and receiving entrustment of credit institutions, foreign bank branches, explanation of entrustment Loans are as follows:

Article 3. Interpretation of terms

..

3. Loan entrustment is the entrustment of the entrusting party to the entrusting party to lend to borrowers.”

Normally, loan entrustment when individuals and organizations have idle money and want to make loan transactions for interest, but borrowers are diverse and may be exposed to risks when information about the subject is unknown. loans, so there is a risk of losing both principal and interest. Therefore, to ensure capital, those individuals and organizations often look to commercial banks, credit institutions specializing in lending activities and entrust banks to make loans for them. . In which, entrusted capital is the amount of money the entrusting party assigns to the entrusting party to perform the entrustment contents during the period from which the entrusting party begins to perform the entrustment until the contents of the entrustment are completed. According to the Contract.

2. What are the characteristics of entrustment and lending entrustment?

Loan entrusting party can be economic organizations, socio-political organizations, credit institutions, domestic and foreign individuals who have demand for credit loans to customers. . Borrowers will borrow directly from the commercial banks of the trustee.

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Loan entrustment recipients are credit institutions established and operating in accordance with the Law on Credit Institutions, with the function of providing credit in the form of capital loans in accordance with the law. Entrusted parties for loans include commercial banks, policy banks, cooperative banks, finance companies, financial leasing companies, microfinance institutions, people’s credit funds, and foreign bank branches.

– Conditions for entrusting and receiving entrustment for credit institutions and foreign bank branches are as follows:

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+ Entrustment and entrustment activities must be recorded in the License for establishment and operation.

+ There are internal regulations on the management of entrustment and entrustment activities, including content on identification, measurement and management of risks of entrustment and entrustment activities in accordance with the nature, scale activities of credit institutionsforeign bank branch.

+ Entrustment and entrustment activities must be managed by a risk management department.

+ The trustee has the facilities, network and a team of qualified, professional and technical staff to ensure the implementation of the entrusted content, has credibility in lending, and ensures capital security. get a loan.

+ In case a credit institution or foreign bank branch receives entrusted capital from an organization or individual to invest in a production, business, financial leasing or lending project, in addition to the following conditions: The above must also ensure that at the time of entrustment, the entrusting party is an organization or individual that has no outstanding loans to credit institutions or foreign bank branches.

The loan entrustment must be made into a written contract. The entrusting party can only entrust the entrusting party to perform the entrustment contents that the entrusting party is allowed to perform and is entrusted with according to the provisions of law, the entrusting party can only entrust the contents of the entrustment. entrustment that the entrusting party can perform and receive the entrustment in accordance with the provisions of the entrustment contents between the two parties on the basis of conformity with the provisions of law.

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The trustee must not re-entrust to a third party, must not use the entrusted capital contrary to the purposes and contents of the entrustment specified in the entrustment contract.

3. Contents of the entrustment contract:

The entrustment contract is established on the basis of agreement and voluntary will between the parties, but must contain at least the following contents:

– Name and address of the entrusting party and the entrusting party;

– Trustee: Must specify the name or specific information sufficient to identify the trustee. For the case of entrustment to buy bonds, in addition to specifying the name or information to identify the issuer, it must specify the type of bond and the term of the bond;

– Entrustment purpose;

– Scope and content of entrustment;

– Entrustment term;

– Entrustment fee;

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– Entrusted capital; entrusted capital delivery time;

– Currency of entrustment (if any);

– Rights and obligations of the entrusting party and the entrusting party, which must clearly state that the entrusting party bears all risks and enjoys all benefits from entrustment activities, the entrusting party is entitled to entrustment fees;

– Early termination of the contract;

– Dispute handling.

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In addition to the above contents, the entrustment contract may have other contents as agreed by the parties, on the basis that such agreements are not contrary to law.

4. Rights and obligations of the entrusting party and the entrusting party:

4.1. Rights and obligations of the entrusting party:

Article 6 of Circular 30/2014/TT-NHNN stipulating entrustment and entrustment of credit institutions, foreign bank branches specifying the rights and obligations of the entrusting party. Specifically:

Rights of the entrusting party: To request the entrusting party to provide dossiers and documents proving that the entrusting party is allowed to carry out entrusting activities or receive entrustment in accordance with law; To request the trustee to report and provide documents and information on the situation and results of the performance of the entrustment contract; Supervising and inspecting the entrustment’s implementation of the entrustment contents and scope specified in the entrustment contract; Other rights as prescribed in the entrustment contract, in accordance with the provisions of law.

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Obligations of the entrusting party: Reviewing and evaluating the functions, scope of activities, governance, administration, personnel, expertise, technology and infrastructure of the trustee to ensure the entrusting party is capable of performing entrustment or entrustment activities; Transfer the entrusted capital to the entrusting party according to the schedule of implementation of the entrusted contents specified in the entrustment contract; Provide the trustee with information and documents related to the entrustment as prescribed in the entrustment contract; Pay the entrustment fee to the entrusting party specified in the entrustment contract; Other obligations as prescribed in the entrustment contract, in accordance with the provisions of law.

4.2. Rights and obligations of the trustee

Article 7 of Circular 30/2014/TT-NHNN stipulating entrustment and entrustment of credit institutions, foreign bank branches specifying rights and obligations of entrusting party. Specifically:

Rights of the entrusting party: To refuse the entrusting party’s requests related to the scope and content of the entrustment, the entrusting object is not specified in the entrustment contract or is not in accordance with the law; To receive the entrustment fee as prescribed in the entrustment contract; To request the entrusting party to provide information and documents related to the entrustment according to the provisions of the entrustment contract; Other rights as prescribed in the entrustment contract, in accordance with the provisions of law.

Obligations of the entrusting party: To review and evaluate the functions and scope of activities of the entrusting party to ensure that the entrusting party is allowed to carry out entrusting and receiving activities in accordance with the law; To strictly comply with the contents and scope of entrustment specified in the entrustment contract; To inspect and supervise the use of entrusted capital by the entrustment subject to the provisions of the entrustment contract; Timely and fully notify the entrusting party on the implementation of the entrustment contents as prescribed in the entrustment contract; Return to the entrusting party all lawful interests, relevant documents and records as prescribed in the entrustment contract. In case of early termination of the entrustment contract, the trustee shall return to the trustee the undisbursed entrustment amount, all legitimate interests and relevant documents and records related to the termination date. the entrustment contract ahead of time as prescribed in the entrustment contract; Perform other obligations as prescribed in the entrustment contract.

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5. What is the case that you are not allowed to entrust or receive entrustment?

Credit institutions, foreign bank branches are not allowed to entrust or accept lending entrustment in the following cases:

– Entrusted subjects in cases where credit is not granted, such as members of the Board of Directors, members of the Members’ Council, members of the Supervisory Board, General Director (Director), Deputy General Director (Deputy Director). director) and equivalent titles of the credit institution, foreign bank branch, legal entity being a shareholder whose representative of capital contribution is a member of the Board of Directors, member of the Supervisory Board of the credit institution. The company is a joint-stock company, the legal entity is a capital-contributing member, the owner of the credit institution is a limited liability company; Parents, spouses, children of members of the Board of Directors, members Members’ Council, Supervisory Board, General Director (Director), Deputy General Director (Deputy Director) and equivalent titles, … (specified in Article 126, Article 127 of the Law on Credit Institutions application) and the State Bank’s regulations on safety limits and ratios in operations of credit institutions and foreign bank branches.

– Commercial banks, foreign bank branches, cooperative banks, people’s credit funds, microfinance institutions are not allowed to entrust or receive entrustment for financial leasing.

Credit institutions (except commercial banks), foreign bank branches are not allowed to entrust or receive entrustment to contribute capital or purchase shares.

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Commercial banks are not allowed to entrust or receive entrustment to contribute capital or buy shares for entrusting subjects in cases where other enterprises and credit institutions are shareholders or capital contributors of the organization itself. that credit.

Credit institutions (except financial companies), foreign bank branches are not allowed to entrust or receive entrustment to invest in production and business projects.

Finance companies, finance leasing companies, cooperative banks, people’s credit funds, and microfinance institutions are not allowed to entrust or receive entrustment to buy corporate bonds.

Credit institutions, foreign bank branches are not allowed to entrust or receive entrustment to buy bonds of other credit institutions, foreign bank branches.

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