First of all, according to the provisions of Article 330 of the 2015 Civil Code, the deposit is defined as follows: “Deposit of the party who is obliged to deposit a sum of precious or precious metals, gems or valuable papers blockade at a credit institution to ensure the fulfillment of obligations.
In cases where the obligor fails to perform or improperly performs the obligations, the obligee is entitled to be paid by the credit institution where the deposit is made, to compensate for damage caused by the obligor, after subtracting the service cost. . “
Thus, it can be understood simply that deposit is an obligation of the obligor to deposit a sum of money or other valuable assets into a blocked account of a credit institution, specifically here. is a bank to ensure the fulfillment of obligations. In cases where the obligor is not performed or performed improperly, the obligee shall be entitled to be paid by the credit institution where the obligor has made payment, compensate for damage caused by the obligor. , after deducting the bank’s service fee. Margin is one of the seven security measures specified in the 2015 Civil Code. The difference between a security fund and other security measures is that first, the property is not assigned to the party with the right to hold, specifically This is the property that is assigned to a third party, deposited in the escrow account at the bank. Second, the property is also not automatically owned by the party with the right until it is paid by the bank. Payment only occurs when the obligor fails to perform or improperly perform the committed civil obligation.
Currently, for many conditional business lines, it is one of the conditions for doing business that enterprises need to make deposits. Margin amount and deposit conditions are usually specified in specialized legal documents of that industry or field. In the field of multi-level sales, deposits are stipulated in Decree 40/2018 / ND-CP on management of business activities by multi-level method. In order to carry out the procedures to apply for a multi-level sale registration certificate, the enterprise must open a margin account and deposit an amount equivalent to 5% of the charter capital but not less than VND 10 billion ( ten billion dong) at a commercial bank or foreign bank branch in Vietnam. This amount will be blocked by this bank during the process of multi-level sales of enterprises. The purpose of this money is to ensure the fulfillment of the obligations of multi-level selling enterprises to multi-level and State sales participants in cases where multi-level selling enterprises violate their obligations to related parties. Specifically, multi-level selling enterprises terminate multi-level sales activities but do not fulfill all obligations related to multi-level sales activities for participants of multi-level sales and decisions, a legally enforceable judgment of a competent agency dealing with disputes between multi-level selling enterprises and multi-level sale participants related to such obligations. Secondly, enterprises terminate multi-level selling activities but do not abide by decisions on sanctioning violations in multi-level sale activities which have come into effect by competent agencies.
So when can a multi-level sales company withdraw the money that it deposits? Why can multi-level selling enterprises only withdraw funds when there is a written agreement from the Ministry of Industry and Trade?
As analyzed above, the main purpose of escrow is to ensure the obligation of multi-level selling enterprises to multi-level sales participants and the state. Only in case the multi-level selling enterprise fails to perform or fails to fulfill the obligations to the multi-level and state sales participants, will this money be “handled” according to regulations. In case, when the business does not want to operate in a multi-level method, the enterprise can carry out procedures to notify the termination of multi-level sales activities and carry out procedures for withdrawal of funds according to regulations. After the enterprise needs to fulfill its obligations to the multi-level and state sales participants (if any), the Ministry of Industry and Trade will issue a written agreement to allow the withdrawal of the fund. In the process of filing the application, the Ministry of Industry and Trade will publish the request to withdraw the fund of the enterprise on the website of the Ministry of Industry and Trade. If multi-level selling enterprises have not yet fulfilled their obligations, multi-level sale participants and agencies competent to handle violations shall notify the Ministry of Industry and Trade to let the Ministry of Industry and Trade know and request enterprises. Multi-level sales resolved. Then the business must continue to resolve until all obligations are fulfilled. In case there is no notice of multi-level sales participants or competent agencies handling violations in multi-level sales activities, send to the Ministry of Industry and Trade within 30 days from the date of Ministry of Industry and Trade post it, the agency will issue a written approval