Thông tư 01/2002/TT-BTP hướng dẫn vấn đề về thẩm quyền, trình tự và thủ tục đăng ký, cung cấp thông tin về giao dịch bảo đảm

CIRCULAR

GUIDING A NUMBER OF MATTERS REGARDING THE COMPETENCE, ORDER AND PROCEDURES FOR REGISTRATION OF, AND SUPPLY OF INFORMATION ON, SECURITY TRANSACTIONS AT THE NATIONAL REGISTRY FOR SECURITY TRANSACTIONS UNDER THE MINISTRY OF JUSTICE AND ITS BRANCHES

Pursuant to the Government’s Decree No. 38/CP of June 4, 1993 on the functions, tasks, powers and organizational structure of the Ministry of Justice;
Pursuant to the Government’s Decree No. 08/2000/ND-CP of March 10, 2000 on registration of security transactions,
The Ministry of Justice hereby guides a number of matters regarding the competence, order and procedures for the registration of, and the supply of information on, security transactions at the National Registry for Security Transactions under the Ministry of Justice and its branches located in a number of localities, as follows:

I. GENERAL PROVISIONS:

1. Scope of application:

This Circular guides the implementation of a number of provisions of the Government’s Decree No.08/2000/ND-CP of March 10, 2000 on the registration of security transactions (hereinafter called Decree No.08 for short) regarding the following matters:

1.1. The competence, tasks and powers of the National Registry for Security Transactions under the Ministry of Justice (hereinafter called the Registry for short) and its branches located in a number of localities (hereinafter called branches for short) in the registration of, and the supply of information on, security transactions;

1.2. Order and procedures for the registration of, and the supply of information on, security transactions shall be carried out at the Registry and its branches.

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2. Cases of registration of security transactions at the Registry and its branches:

According to the provisions in Article 2 and Point a, Clause 2, Article 8 of Decree No.08, the following cases shall be registered at the Registry and its branches:

2.1. Cases subject to the registration include:

a/ The pledge of assets, over which the ownership must be registered as prescribed by law;

b/ The pledge of assets whereby such assets are held by the pledgor or the third party;

c/ The pledge of assets to ensure the performance of many obligations;

d/ The written notice on the handling of pledged assets or guaranty assets, provided that the pledge of, or guaranty with, such assets has already been registered.

2.2. The guaranty with assets may also be registered, when requested by concerned individuals or organizations.

2.3. Other cases eligible for registration as prescribed by law.

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a/ Automobiles, motorcycles and other land-road motorized transport means; railway transport means;

b/ River ships;

c/ Machinery, equipment, production chains, raw materials, fuels, materials, consumer goods, other goods, precious metals and gems;

d/ Vietnamese currency and foreign currencies;

e/ Bonds, shares, treasury bills, promissory notes, deposit certificates, bills of exchange and other papers which can be monetized;

f/ Property rights derived from copyright, industrial property rights, debt claims, right to receive insurance indemnity and other property rights arising from contracts or other legal bases;

g/ Right to proportions of capital contributed to enterprises, including foreign-invested enterprises;

h/ Right to exploit natural resources as provided for by law;

i/ Yields and rights derived from pledged assets;

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3. Ambit of competence of the Registry and its branches:

3.1. The Registry and its branches are competent to register and supply information on security transactions at requests of individuals and organizations throughout the country. Individuals and organizations defined in Clause 6 of this Circular may, therefore, choose to request the Registry or its branches to carry out the registration.

Individuals and organizations defined in Clause 1, Section VIII of this Circular may choose to request the Registry or its branches to supply information on security transactions.

3.2. The registration and information supply at the Registry or its branches shall be equally valid.

4. Tasks and powers of the Registry and its branches in the registration of, and the supply of information on, security transactions:

4.1. The Registry and its branches shall have the following tasks and powers in the registration of security transactions:

a/ To register cases specified in Clause 2 of this Section;

b/ To register changes in the already registered contents;

c/ To register the extension;

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e/ To grant registration certificates in cases specified at Points 4.1.a, 4.1.b, 4.1.c and 4.1.d of this Clause 4, and copies thereof;

f/ To correct errors in registration requests and registration certificates;

g/ To revoke registration certificates in cases where the registration requesters declare contents in their registration requests untruthfully or not in accordance with the agreements in pledge or mortgage contracts falling under the registration competence of the Registry and its branches;

h/ To notify in writing the parties that are all secured by the sole asset of the handling thereof;

i/ To collect the registration fee;

j/ To refuse to make registration in the following cases:

j.1/ Declaration items in registration requests are not fully filled in according to the form promulgated together with this Circular;

j.2/ The registration requesters fail to pay the registration fee;

j.3/ The asset pledge or guaranty does not fall under the registration competence of the Registry and its branches according to the provisions in Clause 2 of this Section;

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4.2. The Registry and its branches shall have the following tasks and powers in the supply of information on security transactions:

a/ To supply information on security transactions already registered at the Registry and its branches; information stored in the National Database of Security Transactions;

b/ To collect charge for the supply of information on security transactions;

c/ To refuse to supply information on security transactions in the following cases:

c.1/ Declaration items in information supply requests are not fully filled in according to the form promulgated together with this Circular;

c.2/ The information supply requesters fail to pay information supply charge.

4.3. The Registry and its branches are competent to settle complaints and denunciations according to the provisions in Section IX of this Circular.

5. Responsibilities of registrars:

Registrars have the following responsibilities:

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5.2. To register accurately the contents declared in the registration requests;

5.3. In cases where registrars inaccurately register, the contents declared in the registration application, thus causing damage, they shall have to compensate therefor according to the law provisions on public employees’ liability to pay compensation for damage.

6. Registration requesters

Pledge or guaranty registration requesters shall be the following persons:

6.1. Pledgors or pledgees;

6.2. Guarantors or guarantees;

6.3. New pledgors, guarantors or new pledgees, guarantees in cases one of the parties mentioned at Points 6.1 and 6.2 of this Clause is changed;

6.4. Authorized persons.

7. Responsibilities of registration requesters:

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7.2. In cases where registration requesters inscribe in their requests contents which are untruthful or incompatible with the parties’ agreement on security transactions, thus causing damage, they shall have to pay compensations to damage sufferers. Parties involved in the already registered security transactions shall bear responsibilities for such transactions by themselves, if law-breaking contents are found therein.

7.3. Registration requesters shall have to pay registration fee.

II. ORDER AND PROCEDURES FOR REGISTERING SECURITY TRANSACTIONS

1. Registration requesters shall have to file their written requests for the registration of asset pledge, made according to form 02, or for the registration of guaranty with assets, made according to form 03. Valid registration requests are those with all declaration items filled in according to the set form and with the parties’ agreement in the already signed pledge or guaranty contracts.

2. Registration requesters shall file registration requests by one of the following modes:

2.1. Filing their requests directly at the Registry or its branches;

2.2. Sending their requests by post, whether in form of registered mail or express mail service;

2.3. Sending their requests by facsimile. The sending by facsimile shall only be effected in cases where registration requesters being credit institutions under the Credit Institutions Law have already been registered in the list of regular clients of the Registry.

Credit institutions shall send to the Registry their written registrations in the list of regular clients, made according to form 01. After being registered in the list of regular clients of the Registry, the credit institutions shall be entitled to send their registration requests by facsimile to the Registry or its branches.

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3. Registration requesters shall fully pay fee by one of the following modes:

3.1. Paying directly at the Registry or its branches immediately after registration requests are received by registrars;

3.2. Transferring fee money through postal services and sending money transfer papers together with registration requests;

3.3. Transferring fee money into accounts of the Registry or its branches, where the requests are received, and sending to the Registry or its branches vouchers certifying the money transfer. For credit institutions already registered in the list of regular clients of the Registry, the transfer of fee money into accounts of the Registry or its branches, where the requests are received, shall be effected within the period from the 25th to the last day of every month.

In cases where the Registry or its branches refuse to effect registration for cases beyond their competence as prescribed at Point 4.1.k, Clause 4, Section I of this Circular, the registration fee amounts shall be refunded to the registration requesters by one of the modes applicable to the fee payment.

4. After receiving registration requests, registrars shall perform the following jobs:

4.1. Checking whether or not the registration falls under the competence of the Registry or its branches. For security transactions falling beyond their competence, registrars shall have to notify such to the registration requesters and guide the latter to file their requests with agencies competent to register such security transactions.

4.2. In cases where requests are filed directly at the Registry or its branches, registrars shall check the filling in of all declaration items in requests. If requests have been fully filled in and the registration requesters have paid fee, the registrars shall inscribe in requests the time of receiving the requests (the time and date) and hand to registration requesters copies of registration requests inscribed with the time of receiving the requests and appointment slips for granting registration certificates;

4.3. In cases where the Registry or its branches receive registration requests sent by post, the registrars shall check the filling in of declaration items therein as well as the fee payment. If the applications have been fully filled in according to the set form and the fee has been paid as prescribed, the registrars shall inscribe in the requests the time of receiving requests sent by post (the time and date).

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5. Within 3 days after receiving valid registration requests, the Registry or its branches, where registration requests are received, shall have to grant certificates of asset pledge registration, made according to form 10, or certificates of registration of guaranty with assets, made according to form 11, to the registration requesters. For cases where the registration requests are received by post or facsimile, the copies of the registration requests shall also be enclosed therewith. The Registry and its branches shall not grant certificates to registration requesters if they detect the registration of a contract on asset pledge or guaranty with assets is repeated.

Registration certificates shall be handed directly at the Registry or its branches, where the registration requests have been received, or sent by registered mail service.

III. ORDER AND PROCEDURES FOR REGISTERING CHANGES IN ALREADY REGISTERED CONTENTS

1. In case of the following changes in already registered contents, the registration requesters shall have to file their requests for registration of changes in already registered security transactions’ contents, made according to form 04, with the Registry or its branches that have granted registration certificates, so that the latter effect the registration of changes in the already registered contents:

1.1. Change of one of parties involved in the pledge or guaranty; change of address of one or all those parties;

1.2. Replacement or partial withdrawal of security properties;

1.3. Addition of security properties;

1.4. Change of order of priority for payment upon the handling of security assets;

1.5. When assets are formed or obligations are established in cases where the asset pledge or guaranty with assets to be formed in the future or to secure the performance of future obligations is already registered.

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3. The filing of change registration requests, the fee therefor and modes of paying and refunding the fee shall comply with the provisions in Clause 2 and Clause 3, Section II of this Circular.

4. After receiving the written requests for change registration, the registrars shall check all declaration items therein and the fee payment. If all declaration items in requests have been filled in and the fee has been paid as prescribed, they shall inscribe in requests the time of application reception (hours, minutes, day, month, year).

In case of registration of addition of security assets, the registrars shall inscribe the time of registering the addition of security assets which is the time the Registry or its branches receive the requests for additional registration of such assets according to the provisions at Point c, Clause 2, Article 21 of Decree No.08.

For the registration of changes mentioned at Points 1.1, 1.2, 1.4 and 1.5, Clause 1 of this Section, the registrars shall retain the registration time already inscribed in the granted registration certificates.

5. Within 3 days after receiving the requests for registration of changes, the Registry or its branches, where such requests are received, shall have to grant certificates of registration of changes in contents of the already registered security transactions, made according to form 12, to the registration requesters.

In cases where change registration requesters are securing parties, the Registry or its branches, where the change registration requests are received, shall grant to secured parties copies of certificates of registration of changes in already registered contents.

The granting of certificates of registration of changes in already registered security transactions’ contents shall be effected by the mode prescribed in Clause 5, Section II of this Circular.

IV. ORDER AND PROCEDURES FOR EXTENSION REGISTRATION

1. Within six months before the expiry of the effective duration of pledge or guaranty registration inscribed in the certificates of registration of asset pledge or certificate of registration of guaranty with assets, if the registration requesters wish to have their certificates extended, they shall have to file their requests for registration of extension of security transactions, made according to form 05, with the Registry or its branches, where such pledges or guaranties have been registered, for carrying out the extension registration. Valid extension registration requests are those having all their declaration items filled in and in conformity with the parties’ agreement on extension registration.

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3. After receiving the extension registration requests, registrars shall check declaration items in such requests and the fee payment. If all declaration items in the requests have been filled in and the fee has been fully paid as prescribed, they shall inscribe in the requests the time of application reception (hours, minutes, day, month, year).

4. The Registry and its branches, where extension registration requests are received, shall grant certificates of registration of security transactions’ extension, made according to form 13, to the registration requesters within three days after receiving the valid extension registration requests in which the time of extending registration must be clearly stated.

In cases where extension registration requesters are the secured parties, the Registry or its branches, where the requests are received, shall grant to the securing parties copies of the certificates of registration of security transactions’ extension.

The granting of certificates of registration of security transactions’ extension shall be effected in compliance with provisions in Clause 5, Section II of this Circular.

V. ORDER AND PROCEDURES FOR REGISTRATION CLEARANCE

1. Before the expiry of the registration duration, the pledgors or pledgees, the guarantors or guarantees shall have to file their requests for clearance of registration of security transactions, made according to form 06, with the Registry or its branches, where the registration has been carried out, in the following cases where:

1.1. The obligations secured by pledge or guaranty terminate;

1.2. The pledge or guaranty is canceled or replaced by another security transaction;

1.3. Assets put in pledge or used for guaranty have already been handled. In these cases, the pledgees or the guarantees shall have to file their requests for registration clearance to the Registry or its branches where such pledge or guaranty was registered.

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3. The filing of registration clearance requests shall comply with the provisions in Clause 2, Section II of this Circular.

Registration clearance requesters shall not have to pay any registration clearance fee.

4. Within three days after receiving the valid registration clearance requests, the Registry or its branches, where such requests are received, shall effect the registration clearance and grant to the requesters the certificates of security transaction registration clearance, made according to form 14. In cases where the registration requesters are pledgors or guarantors, copies of such certificates shall be sent to pledgees or guarantees.

5. If after the expiry of the registration duration, the registration requesters file no requests for registration extension, the Registration or its branches shall effect the automatic registration clearance, and grant registration clearance certificates only when so requested in writing.

VI. ORDER AND PROCEDURES FOR REGISTERING WRITTEN NOTICES ON HANDLING OF PLEDGED OR GUARANTY ASSETS

1. In cases where a pledge or a guaranty has been registered at the Registry or its branches, within 7 days before handling assets in such pledge or guaranty, the security asset handler shall have to file a request for registration of the written notice on security asset handling, made according to form 07, with the Registry or its branch, where the certificate of registration of such pledge or guaranty has been granted.

2. The application filing and payment of fee for registration of written notices on security asset handling shall comply with the provisions in Clause 2 and Clause 3, Section II of this Circular.

3. Within three days after receiving the valid requests, the Registry or its branches, where such requests are received, shall grant to the requesters certificates of registration of written notices on security asset handling, made according to form 15.

4. In cases where an asset has been put in pledge or guaranty to ensure the performance of many obligations and registered at the Registry or its branches, after receiving the requests for registration of written notices on pledge or guaranty asset handling, the Registry or its branches where such requests are received shall have to notify in writing the co-pledgees or co-guarantees of the asset handling.

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Within three days after receiving the registration clearance requests, the Registry or its branches, where such requests are received, shall grant certificates of registration clearance, made according to form 14.

In cases where pledge or guaranty assets are partially handled, the requesters for registration of written notices on security asset handling shall, after the handling is completed, file the requests for registration of changes in the already registered contents (partial withdrawal of security assets) with the Registry or its branches, where written notices on security asset handling have been registered, for registrars to effect the change registration.

VII. ERROR CORRECTION

1. In cases where the registration requesters detect errors in their requests or registration certificates, they shall file their requests for error correction made according to form 08, to the Registry or its branches, where such erroneous requests have been received or certificates granted, so that the errors shall be corrected according to the contents declared in error correction requests. In case of correction of errors in the already granted registration certificates, the error correction requests must be enclosed with such certificates.

2. The filing of dossiers and error correction fee shall comply with the provisions of Clause 2 and Clause 3, Section II of this Circular.

3. After receiving the requests for correction of errors in the registration requests, registrars shall cross out the time of application reception already inscribed in the previous registration requests and inscribe the new time point of application reception being the time of receiving the error correction requests. The registration the time for determining the valid registration duration shall be time when the Registry or its branches receive such error correction requests.

4. For errors found in the already granted registration certificates, when correcting them, the registrars shall retain the registration time already inscribed therein and correct the errors. Erroneous contents, which are corrected in certificates, must be affixed with stamps of the Registry or its branches.

In cases where the correction cannot be made directly to the erroneous contents, the registrars shall inscribe such correction in the error correction section in registration certificates. In these cases, the Registry or its branches, where requests are received, shall not collect error correction fee.

5. Within three days after receiving the valid error correction requests, the Registry or its branches shall make error correction and return to the requesters the corrected pledge or guaranty registration certificates.

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1. Vietnamese and foreign individuals and organizations, overseas Vietnamese, that wish to inquire into information stored in the Register or the National Database of Security Transactions, may get access to such information by the following modes:

1.1. Filing information supply requests, made according to form 09, with the Registry or its branches;

1.2. Searching for and inquiring into information in the Register at the Registry or its branches by themselves under registrars’ guidance.

2. Information supply requesters must pay charge therefor.

3. Information supply requesters shall be supplied with information on security transactions, stored in the Register or the National Database of Security Transactions under the securing parties’ names.

4. The filing of requests for supply of information on security transactions, the reception of information and the payment of information supply charge shall comply with the provisions in Clause 2, Section II of this Circular.

5. After receiving the requests for supply of information on security transactions, registrars shall examine such requests, search through information in the Register or the National Database of Security Transactions, and check the fee payment. Within three days after receiving the information supply requests, the Registry or its branches shall have to supply information to the requesters under the securing parties’ names stated in the requests.

In cases where information supply requesters wish to be supplied with information in written form, the registrars shall supply information in written form according to form 16.

IX. SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS

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1.1. In the domain of registration of, and supply of information on, security transactions, the registration or information supply requesters may lodge complaints about decisions of the Registry or its branches and/or acts of rewith gistrars or officials of such agencies, when they have grounds to believe that such decisions or acts are unlawful or infringe upon their legitimate rights and interests.

1.2. Competence and time limit for settling first-time complaints shall be as follows:

a/ Directors of branches shall have to settle complaints about their decisions or acts, decisions or acts of registrars and officials working at their branches. Within 10 days after receiving complaints, branch directors shall process them for settlement and notify such in writing to the complainants. In case of refusal to process complaints, they shall also have to notify such in writing, clearly stating the reasons therefor.

If within 30 days after the expiry of the settlement time limit prescribed in Article 36 of the Law on Complaints and Denunciations, their complaints are not settled, or if after receiving the decisions on first-time complaint settlement of branch directors, they disagree therewith, the complainants may further lodge their complaints with the Registry’s Director or initiate administrative cases at court as prescribed by law.

b/ The Registry’s Director shall have to settle complaints about his/her decisions or acts of his/her own, or of registrars and officials working at the Registry. Within 10 days after receiving the complaints, the Registry’s Director shall have to process them for settlement and notify such in writing the complainants. In case of refusal to process the complaints, they shall also have to notify such in writing, clearly stating the reasons therefor.

If within 30 days after the settlement time limit prescribed in Article 36 of the Law on Complaints and Denunciations expires, their complaints are not settled, or if after receiving the decisions on first-time complaint settlement of the Registry’s Director, they disagree therewith, the complainants may further lodge their complaints with the Justice Minister or initiate administrative cases at court as prescribed by law.

1.3. Competence and time limit for settling subsequent complaints shall be as follows:

a/ The Registry’s Director shall process and settle complaints, which have been settled by the branch directors but further lodged or which have not yet been settled though the settlement time limit has expired. In these cases, the complainants shall have to file requests enclosed with the copies of complaint settlement decisions of the branch directors or relevant documents (if any) with the Registry’s Director.

Within 10 days after receiving the complaints, the Registry’s Director shall have to process them for settlement and notify such in writing to the complainants and the branch directors who previously the settled complaints. In case of refusal to process the complaints, they shall also have to notify such in writing, clearly stating the reasons therefor.

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b/ The Justice Ministry shall process and settle complaints about complaint-settling decisions of the Registry’s Director or complaints which have not yet been settled through the prescribed time limit already expired. Within 10 days after receiving the complaints, the Justice Ministry shall process them for settlement and notify such in writing to the complainants. In case of refusal to process the complaints, they shall also have to notify such in writing, clearly stating the reasons therefor.

The time limit for settling complaints by the Justice Minister is prescribed in Article 43 of the Law on Complaints and Denunciations. Complaint-settling decisions of the Justice Minister shall be the final ones.

2. Settlement of denunciations

2.1. In the domain of registration of security transactions, citizens may denounce to the competent agencies, organizations or individuals unlawful acts of registrars or officials of the Justice Ministry’s security transaction registry, which cause damage or are likely to cause damage to the legitimate rights and interests of their own or others.

2.2. Competence to settle denunciations shall be as follows:

Denouncers may lodge written denunciations or personally denounce to the competent agencies, organizations or individuals according to the provisions of law. In the above-said cases, denouncers must clearly state their names and addresses and denounced contents.

a/ In cases where registrars or officials working at branches are denounced as having committed law-breaking acts in the registration of or the supply of information on security transactions, branch directors directly managing such denounced registrars or officials shall have to settle the denunciations.

b/ In cases where registrars or officials working at the Registry are denounced as having committed law-breaking acts in the registration of or the supply of information on security transactions, or branch directors are denounced as having unlawfully settled denunciations or failed to settle denunciations within the prescribed time limit, the Registry’s Director shall have to settle the denunciations.

c/ The Justice Minister shall process and settle denunciations in cases where such denunciations have been settled in contravention of law by the Registry or have not been settled within the prescribed time limit.

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Within 10 days after receiving denunciations, the denunciation-receiving agencies shall have to process them for settlement. In cases where denunciations fall beyond their settling competence, such agencies shall have to forward them to the competent agencies and notify such in writing to the denouncers.

The denunciation-settling time limit shall be 60 days after denunciations are processed for settlement. For complicated cases, the settling time limit shall be 90 days after the denunciations are processed for settlement.

X. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect as from February 1, 2002. The pledges of assets or guaranties with assets which had been signed before the effective date of this Circular and are still in implementation duration, must also be registered according to the provisions of this Circular.

2. To promulgate together with this Circular forms for registration of and supply of information on security transactions carried out at the National Registry for Security Transactions and its branches.

3. Any problems arising in the course of implementation of this Circular should be reported by the concerned organizations and individuals to the Justice Ministry for study and solution.

MINISTER OF JUSTICE




Nguyen Dinh Loc