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Order of asset value division - some regulations
According to Article 28 of the Law on deposit insurance, “The insurance organization becomes the creditor of the insured individual from the date of payment of insurance; asset value is divided to the deposit insurance organization in the same order as the depositor and the deposit insurance organization recovers the amount of insurance payable in the process of handling the property of the institution in accordance with the law ”.
Article 14 of Decree No.68/2013/ND-CP detailing and guiding the implementation of the Law on deposit insurance stated that “The deposit insurance organization participates in management, liquidation of assets and recovering the amount of insurance paid in the process of handling property of the institute in accordance with the law on bankruptcy for credit institutions. The deposit insurance organization participates in the management, liquidation of assets and recovery of the amount of insurance paid in the process of handling assets of the organization participates in the insurance in accordance with the regulations of the State Bank of Vietnam (SBV) regulation on revocation of licenses and liquidation of assets of foreign bank branches”. This is an important legal basis for DIV to perform the assigned tasks.
According to the provisions of the Law on bankruptcy No.51/2014/QH13, the order of dividing the property value is implemented as follows: (i) Bankruptcy cost; (ii) Salary debts, severance allowances, social insurance, health insurance for workers and other benefits under the labor contract and the collective labor agreement signed; (iii) Deposits; The amount of deposit insurance organization payable to depositors at bankruptcy credit institutions in accordance with the law on deposit insurance and guidance of the SBV; (iv) Financial obligations for the State; The debt that is not guaranteed to pay the creditors in the list of creditors; The debt that guarantee has not been paid as the value of security assets is inadequate to pay debt.
However, according to the Law amending and supplementing a number of the Law on credit institutions in 2017, special loans (loans from SBV, DIV, Cooperative Bank, other credit institutions to support when credit institutions are at risk of losing their ability to pay or fall into insolvency, threatening the stability of the system during the period the credit institutions are specially controlled, including cases when credit institutions are implementing the approved restructuring plan; to support recovery under the recovery plan or the approved mandatory transfer plan) are given priority to be repaid in advance.
Therefore, in case the DIV provides special loans when liquidating the assets of the credit institution, this debt will be prioritized for repayment. The amount of money that DIV pays the insurance to the depositors will be divided after the payment for bankruptcy costs, payment of salary debts, severance allowances, social insurance, health insurance for workers and other benefits under labor contracts and labor agreements collectively signed.< o:p>
Actual situation of the debt recovery in the process of liquidation in recent years
Since its establishment, the DIV has reimbursed insured depositors in 39 insured institutions as the People's Credit Funds (PCF). DIV becomes one of the creditors of the PCF and will recover the insurance amount paid to the depositors in the process of liquidating the property of the PCF in accordance with the law. Some PCFs are still in the process of liquidation and the liquidation of assets is made by the Council of Liquidation, in which the DIV is one of the members of the Council of Liquidation (established under Circular No.24/2006/TT-SBV that was later replaced by Circular No.23/2018/TT-NHNN).
In fact, there are many factors that influence or slow down the liquidation process of the PCFs, typically:
- Liquidation term: The SBV issued Circular No.23/2018/TT-NHNN dated September 14, 2018 regulating the reorganization, revoking the license and liquidating the PCF, which has regulated that the time limit for liquidation of PCF is 12 months and the liquidation period can be extended, each extension being no more than 12 months. Therefore, there are funds that have been liquidated since 2009 but so far continued to be renewed. Some of the Council of Liquidation may extend the operating term many times, but have not ended the liquidation activities in accordance with the law.
- The Law on Deposit Insurance regulates that the DIV can participate in the management and liquidation of assets of the published institution in accordance with the Government's regulations. However, according to the provisions of the Law on bankruptcy, after issuing the decision to open bankruptcy procedures, the judge will appoint officers or enterprises to manage and liquidate assets. The liquidator or enterprise manages and liquidates assets to liquidate the property of bankruptcy credit institutions. Thus, according to the Law on bankruptcy, the DIV will not directly participate in the liquidation of the asset of public institutions that go bankruptcy.
- Members of the Council of Liquidation are mainly part -time and do not work regularly, so it does not guarantee enough time for this job and affects and slows down the liquidation. Even, some members of the Council of Liquidation have retired or moved to other positions that the operation of the liquidation councils has not been as effective as expected.
- Activities of the Council of Liquidation: In some PCFs, although the liquidation has not been completed, the Council of Liquidation no longer operates (some of the liquidation councils have issued a written termination of operation).
- Debt recovery: The recovery of loans at the PCFs faces many difficulties, because the loans of the PCFs are mainly without collateral or if any, most of the mortgage documents do not meet Enough legal requirements to distribute assets or the development of those assets facing many difficulties because people are still afraid to buy assets related to the legal factors ...
In order for the debt recovery in the process of liquidating the asset to be effective, it is necessary to adjust the policy mechanism, which focuses on a number of issues such as: Modifying and supplementing legal documents in the direction of clearly determining the maximum time limit for liquidation of PCFs and the number of time for liquidation of PCFs, avoiding the situation of too many extension or prolonged time of liquidation; Supplementing guiding documents for assets and debts that have not been handled and recovered.
Besides, amend and supplement the Law on deposit insurance to suit synchronously with the Law on Credit Institutions and the Law on Bankruptcy; continue to coordinate with the PCF Liquidation Council to recover the amount of insurance paid to the insured individuals.
