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THE
GOVERNMENT
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No.
11/2012/ND-CP
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Hanoi, February 22, 2012
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DECREE
AMENDING
AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE NO. 163/
2006/ND-CP OF DECEMBER 29, 2006, ON SECURED TRANSACTIONS
THE GOVERNMENT
Pursuant to the June 14, 2005
Civil Code;
Pursuant to the December 25,
2001 Law on Organization of the Government;
At the proposal of the
Minister of Justice,
DECREES:
Article 1. To amend and
supplement a number of articles of the Government's Decree No. 163/2006/ND-CP
of December 29, 2006, on secured transactions, as follows:
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"1. Securing party means a
party that uses its/his/her assets, land use rights or prestige or commits to
performing a job for the secured party to secure the performance of its/his/her
or others' civil obligations. A securing party may be a pledgor, mortgagor,
security deposit payer, collateral payer, escrow payer, guarantor or grassroots
socio-political organization, for case of trust."
"9. Valuable papers mean
stocks, bonds, bills of exchange, promissory notes, bonds of credit, deposit
certificates, checks, fund certificates and other law-prescribed valuable
papers which, according to law, are monetizable and tradable."
2. To amend Clauses 1 and 2,
Article 4 as follows:
"1. Security assets are
existing assets or future assets which are not banned from transaction by law."
"2. Future assets include:
a/ Assets procured with loans;
b/ Assets which are in the
making or lawfully created at the time of entering into the secured
transaction;
c/ Assets which have been formed
and are subject to ownership registration but are registered in accordance with
law after the time of entering into the secured transaction.
Future assets do not include
land use rights."
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"Article 7a. Notification
of the mortgage of motor road vehicles, inland waterway vessels and railway
vehicles
1. After the mortgage of a motor
road vehicle, inland waterway vessel or railway vehicle is registered and the
registration requester pays the fee for the issuance of a duplicate of the
secured transaction registration certificate, the secured
transaction-registering agency shall send 1 duplicate of the registration
certificate to the state agency competent to make vehicle/vessel circulation
registration. This agency shall update information on the mortgage of the
vehicle/vessel right on the date of receiving the duplicate of the secured
transaction registration certificate.
After the mortgage of a
vehicle/vessel is deregistered and the deregistration requester pays the fee
for the issuance of a duplicate of the secured transaction deregistration
certificate, the secured transaction-registering agency shall send 1 duplicate
of the deregistration certificate to the stale agency competent to register the
vehicle/vessel for the latter to update information on the deregistration of
the mortgage of such vehicle/vessel.
3. The owner of a vehicle/vessel
currently recorded as a security asset that wishes to have the vehicle/vessel
registration certificate re-granted or renewed or to transfer the ownership of
such vehicle/vessel but has not yet obtained the secured transaction
deregistration certificate shall produce a certified copy or a copy, enclosed
with the original for comparison, of the release of mortgage or the mortgagee's
written consent."
4. To amend Article 8 as
follows:
"Article 8. Security for
the performance of obligations with future assets
1. In case the securing party
has the right to partially or wholly own a future asset, the secured party will
have the rights to part or the whole of such asset. For an asset which is
subject to ownership registration according to law but has not yet been
registered by the securing party, the secured party may still handle such asset
in due time.
2. In case a future asset is
handled to secure the performance of a civil obligation, right after obtaining
handling results, competent state agencies shall base on these results to carry
out procedures to transfer the right to own or use such asset to the asset
buyer or recipient."
5. To add the following
Article 8a:
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1. In the contract on security
for the performance of a future obligation, parties are not required to reach
specific agreements on the scope of the secured obligation and time limit for
performance of such obligation, unless otherwise agreed upon or provided by
law.
2. When an obligation arises,
parties arc not required to register changes to the contents of the secured
transaction already registered."
6. To add the following
Clause 4 to Article 12:
"In case the securing party
is a judgment debtor and the secured party is a judgment creditor and the
fulfillment of the securing party’s obligations towards the secured party has
been certified by a competent civil judgment execution agency through the
issuance of a written certification of judgment execution results, when
requesting secured transaction deregistration, the securing party may use .such
written certification in replacement of the secured party's written consent of
secured transaction deregistration."
7. To amend Clause 3, Article
14 as follows:
"3. Parties to a valid
secured transaction concluded prior to the split, separation, consolidation,
merger or transformation of legal entities (referred to as reorganization of
legal entities) arc not required to re-conclude such transaction when
reorganizing legal entities.
If the secured transaction has
been registered, the new legal entity shall produce the document on the
reorganization of legal entities issued by a competent agency to register
changes according to law."
8. To amend Clause 3, Article
19 as follows:
"3. In case of pledge of a
valuable paper, the pledgee may request the issuer of that valuable paper or
the Securities Depository Center to secure its/his/her right lo monitor that
valuable paper.
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For pledged assets being
securities which must be registered or deposited, the pledge registration at
secured transaction-registering agencies complies with the law on registration
of secured transactions while the registration and depositing of securities at
the Securities Depository Center complies with the law on securities."
9. To add the following
Article 20a:
"Article 20a. Keeping of
papers on mortgaged assets
In case the mortgaged asset is
an aircraft, a seagoing vessel or a vehicle specified in Article 7a of this
Decree, the mortgagor shall keep the original aircraft title document.
Vietnamese seagoing vessel registration certificate or vehicle registration
certificate during the validity term of the mortgage contract."
10. To amend Article 21 as
follows:
'"Article 21. Mortgaged
assets under lien
In case a mortgaged asset is
currently placed under a lien according to Article 416 of the Civil Code, the
lienor shall hand over such asset to the mortgagee for handling according to
law after the mortgagee or the obligor fulfills its/ his/her obligations toward
the lienor."
11. To add the following
Clause 5 to Article 22:
"In case the right to claim
debts is transferred under Article 313 of the Civil Code, involved parties are
not required lo re-conclude the secured transaction. When carrying out
procedures for registering change of the secured party according to law, the
transferee of the right lo claim debts shall produce the contract on the
transfer of the right to claim debt to prove such change."
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"3. Cases in which the
mortgagor or a third party invests in the mortgaged asset (below referred to as
mortgaged asset investor) but does not use the asset portion increased thanks
lo investment to secure the performance of civil obligations shall be settled
as follows:
a/ If the asset portion
increased thanks to investment can be detached from the mortgaged asset without
causing loss to or reducing the value of the mortgaged asset, when handling the
mortgaged asset, the mortgaged asset investor may detach such increased portion
from the mortgaged asset, unless otherwise agreed upon.
b/ If the asset portion
increased thanks to investment cannot be detached from the mortgaged asset or
if such portion is detached from the security asset, the value of the mortgaged
asset will be lost or reduced, when handling the mortgaged asset, the mortgaged
asset investor may not detach such increased portion from the mortgaged asset
but will be prioritized for receiving payment for the increased value, unless
otherwise agreed upon."
13. To amend Article 47 as
follows:
"Article 47. Handling of
the guarantor's assets
The handling of the guarantor's
assets under Article 369 of the Civil Code is specified as follows:
1. In case involved parties have
agreed on mortgage or pledge of assets to secure the performance of guaranteed
obligations, the mortgaged or pledged assets shall be handled under Chapter IV
of this Decree.
2. In case involved parties have
not yet agreed on mortgage or pledge of assets to secure the performance of
guaranteed obligations, the guarantor shall hand over its/his/her assets to the
guarantee for handling at the hitter's request, unless otherwise agreed upon. If
the guarantor refuses to hand over assets, the guarantee may file a lawsuit
according to law.
3. At the time of handling the
guarantor's assets, if the guarantor has no asset or the proceeds from the
handling of its/his/her assets is not enough to pay for guaranteed obligations,
the guarantee may, within the scope of guaranteed obligations, request the
guarantor to hand over assets acquired after the time of handling the
guarantor's assets for subsequent handling."
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"Article 47a. Order of
payment priority between co-guarantees and between the guarantee and the
pledgee, mortgagee, security deposit recipient, collateral recipient or escrow
recipient
1. Co-guarantees enjoy the same
order of payment priority. The proceeds from the handling of the guarantor's
assets shall be divided to co-guarantees in proportion to guaranteed
obligations.
2. If the pledge, mortgage,
deposit, collateral or escrow contract, has been registered according to law,
the pledgee, mortgagee, security deposit recipient, collateral recipient or
escrow recipient enjoys payment priority over the guarantee.
3. If the pledge, mortgage,
deposit, collateral or escrow contract has not yet been registered according to
law, the order of payment priority between the guarantee and the pledgee,
mortgagee, security deposit recipient, collateral recipient or escrow recipient
shall be determined based on the order of establishment of these secured
transactions."
15. To amend Clause 4 of and
add the following Article 6 to Article 58:
“4. The handler of security
assets (below referred to as asset handler) is the secured party or the person
authorized by the secured party, unless otherwise agreed upon by the parties to
the secured transaction.
The asset handler shall handle
security assets based on agreements in the security contract without having to
obtain written authorization to handle assets made by the securing party.''
"6. In case a security
asset is the right to use land or houses, the organization or individual that
buys or receives such security asset as replacement for the performance of the
securing party's obligations must be eligible for the grant of the certificate
of the right to use land or own houses or assets attached to land. In case such
organization or individual is ineligible for such certificate, it/he/she may
only enjoy the land use right or house value."
16. To amend Clause 1,
Article 61 as follows:
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17. To add the following Article
64a:
"'Article 64a. Sale of security assets
1. In case involved parties have
agreed to apply the method of auction to handle a security asset, the auction
complies with the law on auction of assets.
2. In case involved parties have
agreed to sell a security asset not through auction, the sale of such asset
complies with the Civil Code's provisions on sale of assets and the following
provisions:
a/ Involved parties may reach
agreement on or hire a price appraisal organization to determine the sale price
of the security asset;
b/ The secured party shall pay
the securing party the difference between the sale price of the security asset
and the value of the secured obligation, unless otherwise agreed upon;
c/ After the security asset is
sold, the asset owner and the party entitled to handle the security asset shall
carry out law-prescribed procedures to transfer the ownership of such asset to
the asset buyer."
18. To add the following
Article 64b:
'Article 64b. Receipt of
security assets as replacement for the performance of die securing party's
obligations
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1. Involved parties may reach
agreement on or hire a price appraisal organization to determine the value of
the security asset;
2. If the value of the security
asset is higher than the value of the secured obligation, the secured party
shall pay the difference to the securing party, unless otherwise agreed upon;
3. When transferring the right
to own or use the security asset, the party receiving the security asset as
replacement for the performance of obligations shall produce to competent state
agencies documents proving its/his/her right to handle the security asset and
the results of handling of the security assets.”
19. To add the following
Clauses 3 and 4 to Article 68:
"3. In case only the land
use right is mortgaged while the asset attached to land is not and the land
user is concurrently the owner of the asset attached to land, the asset
attached to land shall be handled together with the land use right, unless
otherwise agreed upon.
Parties may reach agreement on
or hire a price appraisal organization to determine the value of the land use
right and asset attached to land. Proceeds from the handling of the security
asset shall be firstly used to make payment to the owner of the asset attached
to land, unless otherwise agreed upon.
4. In case only the land use
right is mortgaged while the asset attached to land is not and the land user is
not the owner of the asset attached to land, when the land use right, is
handled, the owner of the asset attached to land may further use land as agreed
with the land user, unless otherwise agreed upon. Rights and obligations of the
mortgagor and the owner of the asset attached to land shall be transferred to
the buyer or the recipient of the land use right."
20. To annul Clause 2,
Article 10. and remove the phrase "and the engine number" from Point
b. Clause 1. Article 20.
21. To replace the phrase
"a motor vehicle" at Point b. Clause 1, Article 20 with the phrase
"a motor road vehicle, inland waterway vessel or railway vehicle".
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Article 2. Implementation
provisions
1. This Decree takes effect on
April 10, 2012.
2. The Ministry of Justice
shall:
a/ Assume the prime
responsibility for, and coordinate with the State Bank of Vietnam and the
Ministry of Natural Resources and Environment in, guiding the provisions on
handling of security assets;
b/ Elaborate and submit to the
Prime Minister for promulgation a directive on enhancing the implementation
effect of the law on secured transactions aiming to raising the legal safety
for secured lending;
c/ Assume the prime
responsibility for, and coordinate with the State Bank of Vietnam in, examining
the observance of the law on establishment and effect of secured transactions;
guide, direct and provide professional training in the law on secured
transactions for related organizations and individuals;
e/ Perform other tasks to
implement this Decree.
3. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, chairpersons
of provincial-level People's Committees and related organizations and
individuals shall implement this Decree.-
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ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung