According to Clause 5, Article 26 of Decree No. 31/2021/ND-CP, the time for depositing the deposit is stipulated as "after the investment policy is approved until before the time when the competent state agency decides to allocate land, lease land...". However, the Department of Finance requires enterprises to deposit the deposit according to the progress milestone stated in the decision approving the investment policy, although in reality the time of the land allocation decision has not been determined. The Department of Finance said that if the deposit is not made, the decision approving the policy will be revoked and the project will be terminated according to Point d, Clause 2, Article 48 of the Investment Law. 

Mr. Hai asked, is such a deposit requirement in accordance with legal regulations? Should the time for depositing the deposit be determined based on the progress stated in the approval document or on the actual time of the land allocation decision? Is the revocation of the policy as stated above correct?

Regarding this issue, based on general information, the Ministry of Finance has the following comments:

Regarding the time of performing project guarantee procedures, according to the provisions of Point a, Clause 5, Article 26 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government detailing and guiding the implementation of a number of articles of the Investment Law, the time of performing project guarantee is as follows:

"The investor shall make a deposit or submit a guarantee certificate from a credit institution on the deposit obligation after being granted a Decision approving the investment policy at the same time as the investor's approval or a Decision approving the investor's approval or a Decision approving the auction results and before organizing the implementation of the compensation, support and resettlement plan approved by the competent authority (in case the investor does not advance compensation, support and resettlement) or before the time of issuing a decision on land allocation, land lease, permission to change land use purpose (for in case the investor has advanced compensation, support, resettlement or in case the investor is selected to implement the project through land use rights auction and is leased land by the State, paying annual land rent)".

Based on the above provisions, the project guarantee is implemented during the period from "after being granted the Decision approving the investment policy" to "before organizing the implementation of the compensation, support, resettlement plan approved by the competent authority" or "before the time of issuing the decision on land allocation, land lease, permission to change land use purpose".

According to the provisions of Clause 2, Article 122 of the Land Law, the person to whom the State allocates land, leases land, or permits to change land use purpose to implement an investment project must satisfy the following conditions:

"a) Deposit or other forms of guarantee according to the provisions of the law on investment...".

Pursuant to Clause 3, Article 42 of the Investment Law, investors must comply with the provisions of the investment policy approval document and the Investment Registration Certificate during the implementation of the investment project, including commitments on the progress of the investment project (progress of capital contribution and capital mobilization; progress of implementation of the main operational objectives of the investment project, progress of basic construction and putting the project into operation; in case the investment project is divided into phases, the progress of implementation of each phase must be specified...) as stipulated in Clause 8, Article 40 of the Investment Law, Clause 7, Article 32 of Decree No. 31/2021/ND-CP.

Thus, based on the above provisions, investors are responsible for implementing the requirements, conditions and contents as stipulated in the investment policy approval document and the Investment Registration Certificate during the implementation of the investment project. Therefore, it is recommended to study and implement the above provisions.

Regarding the termination of investment project activities, according to the provisions of Point d, Clause 2, Article 48 of the Investment Law, the investment registration agency shall terminate or partially terminate the activities of an investment project in the following cases: "The investor does not deposit or does not have a guarantee for deposit obligations as prescribed by law for investment projects subject to investment project implementation guarantees".

Thus, the investment project shall be terminated or partially terminated in the case where the project is subject to implementation guarantees but the investor does not deposit or does not have a guarantee for deposit obligations as prescribed in Article 43 of the Investment Law and Articles 25 and 26 of Decree No. 31/2021/ND-CP of the Government.