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THE
MINISTRY OF JUSTICE
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
06/2006/TT-BTP
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Hanoi,
September 28, 2006
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CIRCULAR
GUIDING A NUMBER OF MATTERS REGARDING THE COMPETENCE, ORDER
AND PROCEDURES FOR REGISTRATION OF, AND SUPPLY OF INFORMATION ON, SECURITY
TRANSACTIONS AT CENTERS FOR REGISTRATION OF TRANSACTIONS AND ASSETS OF THE
NATIONAL REGISTRY FOR SECURITY TRANSACTIONS UNDER THE JUSTICE MINISTRY
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the Government's Decree No. 62/2003/ND-CP of June 6, 2003, defining
the functions, tasks, powers and organizational structure of the Justice
Ministry;
Pursuant to the Government's Decree No. 08/2000/ND-CP of March 10, 2000, on
registration of security transactions,
In order to ensure the uniformity of the registration of security transactions,
the Justice Ministry guides a number of matters regarding the competence, order
and procedures for registration of, and supply of information on, security
transactions at the centers for registration of transactions and assets of the
National Registry for Security Transactions under the Justice Ministry as
follows:
I. GENERAL PROVISIONS
1. Scope of application
This Circular guides the following matters:
1.1. The competence, tasks and powers of centers
for registration of transactions and assets (below referred to as registration
centers) of the National Registry for Security Transactions under the Justice
Ministry for registration of, and supply of information on, security
transactions;
1.2. The procedures for registration of, and
supply of information on, security transactions are carried out at registration
centers.
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2. Cases of registration at
registration centers
2.1. Cases of registration at registration
centers include:
a/ Mortgage of assets, including mortgage of
assets to be formed in the future and mortgage of assets to secure the future
performance of obligations (below collectively referred to as security
transactions);
b/ Modification, error correction, extension or
deletion of asset mortgage registrations provided for at Point 2.1.a of this
Clause;
c/ Written notices on disposal of security
assets for registered security transactions;
d/ Other cases of registration as specified by
law.
2.2. Security assets in the cases specified at
Point 2.1 of this Clause are the following, except for aircraft, seagoing
ships, land use rights, residential houses, other architectures, forest trees
and perennial trees:
a/ Automobiles, motorcycles, other motorized
means of road transport; means of railway transport;
b/ Fishing ships; means of inland waterway
transport;
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d/ Vietnamese currency and foreign currencies;
e/ Stocks, bonds, bills of exchange, promissory
notes, deposit certificates, checks and other valuable papers which are
specified by law, can be monetized and are permitted for transactions;
f/ Economic rights deriving from copyright, industrial
property rights or rights to plant varieties; rights to claim debts and other
economic rights of securing parties originating from contracts or other legal
grounds;
g/ Property rights to amounts of capital
contributed to enterprises;
h/ Right to exploit natural resources which are
used to secure the performance of civil obligations according to the provisions
of law;
i/ Profits, right to receive insurance sums for
security assets or other benefits obtained from security assets specified at
Point 2.2 of this Clause;
j/ Other movables specified in Clause 2, Article
174 of the Civil Code;
k/ Assets attached to land as specified in
Clause 3, Section I of Joint Circular No. 05/2005/TTLT-BTP-BTNMT of June 16,
2005, of the Justice Ministry and the Natural Resources and Environment
Ministry, guiding the registration of mortgage of, or guarantee with, land use
rights or assets attached to land.
3. Competence of registration
centers
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Individuals and organizations defined in Clause
6 of this Section may request one of those registration centers to carry out
the registration of security transactions.
All individuals and organizations may request one
of those registration centers to supply information on security transactions.
3.2. The registration of, and supply of
information on, security transactions by different registration centers have
the same legal validity.
4. Tasks and powers of
registration centers in the registration of, and supply of information on,
security transactions
4.1. A registration center has the following
tasks and powers in the registration of security transactions:
a/ To carry out the registration in the cases
specified in Clause 2 of this Section;
b/ To certify registration of security
transactions, registration of changes in contents of previously registered
security transactions, registration of extension of security transactions,
correction of errors, deletion of security transaction registration,
registration of written notices on disposal of security assets; and to supply
copies of documents so certified;
c/ To notify parties that are all secured by the
same security asset of the disposal of that asset;
d/ To collect the registration fee;
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f/ To archive dossiers and documents, and
preserve registered information;
g/ To perform other tasks and exercise other
powers as provided for by law.
4.2. A registration center has the following
tasks and powers in the supply of information on security transactions:
a/ To supply information on security
transactions archived in the national database on security transactions;
b/ To collect the information supply charge;
c/ To refuse to supply information on security
transactions in any of the circumstances specified at Point 10.2, Clause 10 of
this Section.
5. Responsibilities of registrars
5.1. To carry out registration and information
supply within the time limit and according to the order and procedures
specified in this Circular.
5.2. To register accurately contents declared in
registration applications.
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6. Registration applicants
6.1. A registration applicant may be a securing
party, a secured party or head of a team for management and liquidation of
assets of a secured party that is an enterprise or a cooperative falling into
the state of bankruptcy or a person authorized by any of those entities. When
the securing party or the secured party is changed, the new securing party or
the new secured party may be the applicant for registration of that change.
6.2. Except for the following cases, a
registration applicant who is an authorized person is required to submit the
original of the letter of authorization upon filing of the registration
application:
a/ A legal person authorizes its branch,
representative office or executive office to file a registration application;
b/ A securing party or a secured party is
composed of different organizations or individuals, which authorize one of them
to file a registration application;
c/ A person authorized to file a registration
application is a regular client of a registration center.
7. Responsibilities of
registration applicants:
7.1. A registration applicant shall fill in all
declaration items in his/her registration application according to the form
promulgated together with this Circular (not printed herein). Declared
information must be accurate, truthful and consistent with the parties'
agreement on security transaction.
7.2. When a registration applicant inaccurately
or untruthfully fills in declaration items or the declared information is
inconsistent with the parties' agreement on security transaction, thus causing
damage, he/she shall pay a compensation to damage sufferers. Parties to a
security transaction shall bear responsibility for that transaction if any
illegal content is found.
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8. Time of registration of
security transactions
8.1. Time of registration of a security
transaction is the time when a registration center receives a valid application
for security transaction registration.
8.2. In the following cases, the time of
registration of a security transaction is determined as follows:
a/ If the registration applicant files a written
request for correction of his/her application's errors regarding the name and
serial number of the paper evidencing the legal status of the securing party or
makes declarations at variance with the guidance in Clause 9 of this Section,
the time of registration of the security transaction is the time when the
registration center receives a valid request for error correction;
b/ If the registration applicant files a written
request for correction of his/her application's errors regarding the security
asset, the time of registration of the security transaction for the erroneous
part of that asset is the time when the registration center receives a valid
request for error correction;
c/ If the registration applicant files a written
request for registration of a change in registered information, the time of
registration of changes remains to be the time when the registry receives the
application as defined at Point 8.1 of this Clause. If the registration
applicant requests the additional registration of the security asset, the time
of registration of the security transaction for the added part of asset is the
time when the registration center receives a valid request for registration of
a change in registered information;
d/ If the registration applicant files a written
request for correction of errors made by the registrar, the time of
registration is the time when the registry receives the application as defined
at Point 8.1 of this Clause.
8.3. Time of receipt of a registration
application is determined as follows:
a/ If the application is filed directly or sent
by post to a registration center, the time of registration is the time when the
registration center receives it;
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8.4. Valid registration applications are those
which have all their declaration items completed.
9. Guidance for filling in the
registration applications
9.1. For individuals being Vietnamese citizens:
To fully declare their full names as shown in their people's identity cards;
the serial numbers of their people's identity cards or one of the following
papers, if they have no people's identity cards:
a/ Officer's identity card, soldier's identity
card;
b/ People's police certificate, people's
security force identity card, certificate of workers or employees in the
People's Public Security Forces.
9.2. For individuals being foreigners: To fully
declare their full names according to their passports; and the serial numbers
of their passports.
9.3. For individuals being stateless persons
residing in Vietnam: To declare their full names as shown in their permanent
residence cards; and the serial numbers of their permanent residence cards.
9.4. For organizations established under
Vietnamese law:
a/ For legal persons with business
registrations: To declare their names as shown in their business registration
certificates, and the serial numbers of their business registration
certificates.
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c/ For branches, representative offices or
executive offices authorized by legal persons to enter into security
transactions: To declare those legal persons as parties to security
transactions under the guidance at Points 9.4.a and 9.4.b of this Clause. It is
not compulsory to declare information on branches, representative offices or
executive offices that have entered into security transactions under
authorization.
If an organization entering into a security
transaction is a branch, transaction office or an attached unit of a credit
institution, only declarations on that branch, transaction office or attached
unit are required.
d/ For individual business households, private
enterprises or other organizations without the legal persons status (except for
branches, representative offices or executive offices of legal persons)
entering into security transactions: To declare the heads of households, the
owners of private enterprises or the representatives at law of organizations as
parties to those security transactions under the guidance at Points 9.1, 9.2
and 9.3 of this Clause. It is not compulsory to declare information on
individual business households, private enterprises or other organizations
without the legal person status.
9.5. For organizations established and operating
under foreign laws:
To declare their names registered with competent
foreign agencies and declare certificates or establishment or operation
registrations, if any, granted according to provisions of laws of their
countries. If an organization's registered name is not written in Latin
letters, it shall declare its transaction name in English.
9.6. Information declared together with the
papers specified at Points 9.1, 9.2, 9.3, 9.4 and 9.5 of this Clause
(hereinafter collectively referred to as papers evidencing the legal status)
must be sufficient and true to contents written in those papers. Names of
parties to a security transaction must not be declared in abbreviated forms.
Registration applicants shall not make
declarations according to papers other than those evidencing their legal
status.
9.7. Signing of registration applications:
a/ A registration application must bear all
signatures and seals (if any) of organizations or individuals being parties to
a security transaction or their authorized persons; or signature and seal of
the head of the asset management and liquidation team or his/her authorized
person, if he/she is the registration applicant.
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c/ An application for registration of changes in
registered information on the secured party, correction of errors in
information on the secured party, written notice on disposal of security asset
or deletion of the security transaction registration is required to bear the
signature and seal (if any) of the secured party only or the person authorized
by that party to file that registration application.
10. Cases of refusal to carry
out the registration or refusal to supply information
10.1. In any of the following circumstances, a
registration center may refuse to carry out the registration:
a/ A registration application is invalid;
b/ A registration application is detected to be
identical to another application which has been previously received;
c/ Declarations of already registered
information in an application for registration of changes in that information,
an application for correction of errors, an application for registration of an
extension or a written notice on disposal of security asset, or an application
for deletion of previous registration are inconsistent with the information
archived at the registration center;
d/ A registration application is sent by fax
though the registration applicant is not a regular client of the registration
center;
e/ Registration of changes in already registered
information, correction of errors, registration of an extension, or
registration of a written notice on disposal of security asset is requested for
a security transaction of which the registration has been deleted;
f/ An application for security transaction
registration falls beyond the competence of the registration center as defined
in Clause 2, Section I of this Circular;
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10.2. In any of the following circumstances, a
registration center may refuse to supply information on security transactions:
a/ An application for information supply is
invalid;
An invalid application for information supply
means an application which does not contain all required declaration items
according to the form promulgated together with this Circular (not printed
herein);
b/ An application for information supply is sent
by fax though the applicant is not a regular client of the registration center;
c/ An applicant for information supply fails to
pay the information supply charge.
11. Modes of filing of
registration applications or information supply applications, payment of the
registration fee, the information supply charge
11.1. A registration applicant or an information
supply applicant files his/her application by one of the following modes:
a/ Filing the application directly at a
registration center;
b/ Sending the application by post;
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A registration applicant that files a voluminous
application may attach that application's electronic version with its written
version sent by one of the above modes.
11.2. A registration applicant or an information
supply applicant shall pay the registration fee or the information supply
charge by one of the following modes:
a/ Paying directly at a registration center when
his/her registration application or information supply application is received
by that registration center;
b/ Transferring a fee or charge amount through
the postal money transfer service and sending the money transfer bill together
with the registration application or information supply application;
c/ Transferring a fee or charge amount into an
account of a registration center where his/her application is received, and
sending to that registration center a document certifying the account transfer
upon filing the registration application or information supply application;
d/ Paying an accreditative revenue or
accreditative expenditure via bank or the State Treasury, or making payment from
an advance amount already remitted into a registration center's account, if the
registration applicant or information supply applicant is a regular client of
that registration center.
For payments made by the mode of accreditative
revenues or accreditative expenditures, the payment of registration fee or
information supply charge shall be made according to monthly payment notices of
registration centers. Regular clients shall pay in full the registration fee or
the information supply charge amounts of a month by the 25th day of the
following month at the latest.
12. Regular clients of
registration centers
12.1. An organization or individual that wishes
to become a regular client of a registration center will file a dossier comprising
the following documents to the National Registry for Security Transactions
under the Justice Ministry (hereinafter referred to as the Registry):
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b/ The original of a paper evidencing the legal
status of the registration applicant as guided in Clause 9, Section I of this
Circular or copies thereof certified by the issuing agency or authenticated by
a commune-level People's Committee or notarized. For a directly filed dossier,
only the original of the paper evidencing the legal status needs to be
produced.
12.2. The Registry shall consider and decide to
recognize the regular client status of a registration applicant within one
working day after receiving a valid dossier of application for regular client
registration, and grant a regular client identification number for transactions
with registration centers and for declaration upon filing of registration or
information supply applications.
12.3. The Registry shall reject requests for
regular client registration when dossiers of registration application are
invalid.
12.4. An organization is entitled to request the
registration or information supply in its capacity as a regular client from the
time the Registry signs a decision on recognition of its regular client status.
An individual is entitled to request the
registration or information supply in its capacity as a regular client from the
time he/she pays in full an advance into an account of a registration center
where he/she chooses to register security transactions or request supply of
information.
12.5. Regular clients shall register changes in
their names, papers evidencing their legal status or other registered information,
or the correction of errors in the declared information. A dossier of
application for registration of changes comprises:
a/ An application for registration of changes in
information on a regular client;
b/ Papers specified at Point 12.1.b of this
Clause evidencing changes or errors in declared information.
13. Time limit for completion
of registration
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II. ORDER AND PROCEDURES FOR
REGISTRATION OF SECURITY TRANSACTIONS
1. Registration applicants file their
applications for registration of security transactions and pay the registration
fee by one of the modes defined in Clause 11, Section I of this Circular.
2. After receiving a registration application, a
registrar shall check it and record the time and date of receipt of application
(hour, minute, day, month and year), if that registration application does not
fall into one of the cases subject to registration rejection specified at Point
10.1, Clause 10, Section I of this Circular. Unless an application filed
directly at the registration center is handled immediately, the registrar shall
issue to the registration applicant a written appointment for registration
results.
If any of the circumstances specified at Point
10.1, Clause 10, Section I of this Circular exists, the registrar shall refuse
to carry out the registration and guide the applicant to abide by regulations.
The refusal to carry out registration must be made in writing and sent to the
registration applicant, clearly indicating the reason(s) therefor.
3. Registrars shall promptly input declared
information in registration applications into the database. Within the time
limit for completion of the registration specified in Clause 13, Section I of
this Circular, a registrar shall send to a registration applicant copies of the
application with certification of security transaction registration.
4. When an individual or organization being a
registration applicant also requests the supply of information in the form of a
list of security transactions or a summary of information on security
transactions, a registrar shall supply information as guided in Section IX of
this Circular. Documents for information supply are enclosed with copies of
registration applications with certification of security transaction
registration. Registration applicants shall pay the information supply charge
according to regulations of the Finance Ministry and the Justice Ministry.
5. At the request of registration applicants,
copies of applications for security transaction registration with certification
of registration centers are handed directly to those applicants at registration
centers where the applications have been received or are sent by post through
registered mail service.
III. ORDER AND PROCEDURES FOR
REGISTRATION OF CHANGES IN CONTENTS OF REGISTERED SECURITY TRANSACTIONS
1. Within the validity term of the registration
and in any of the following circumstances, a registration applicant may file an
application for registration of changes in contents of registered security
transactions:
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b/ Change of the securing party or the secured
party; changes in the addresses of both parties or of either of them;
c/ Reduction, replacement or addition of
security assets;
d/ Changes in the payment priority order upon disposal
of security assets;
e/ Changes in other registered contents.
2. The filing of applications for registration
of changes and the payment of fee for registration of changes shall be made by
one of the modes specified in Clause 11, Section I of this Circular.
3. After receiving applications for registration
of changes, registrars shall perform the jobs specified in Clause 2, Section II
of this Circular.
4. Registrars shall promptly input the
information declared in applications for change registration into the database.
Within the time limit for completion of the registration specified in Clause
13, Section I of this Circular, a registrar shall send to a registration
applicant copies of the application with certification of change registration
in contents of the security transaction. If the application for change
registration contains only the signature and seal (if any) of the securing
party or its authorized person as guided at Point 9.7.b, Clause 9, Section I of
this Circular, the registrar shall send to the secured party one (1) copy of
that application.
The grant of copies of applications for
registration of changes with a certification of registration of changes in
contents of registered security transactions is effected by one of the modes specified
in Clause 5, Section II of this Circular.
IV. ORDER AND PROCEDURES FOR
EXTENSION REGISTRATION
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2. The filing of applications for extension
registration and the payment of extension registration fee shall be made by one
of the modes specified in Clause 11, Section I of this Circular.
3. After receiving applications for extension
registration, registrars shall perform the jobs specified in Clause 2, Section
II of this Circular.
4. Registrars shall promptly input the
information declared in applications for extension registration into the
database. Within the time limit for completion of the registration specified in
Clause 13, Section I of this Circular, a registrar shall send to a registration
applicant copies of the application with certification of extension
registration. If the extension registration applicant is the secured party or
its authorized person, the registrar shall send to the securing party one (1)
copy of that application.
The grant of copies of applications for
extension registration with a registration center's certification is effected
by one of the modes specified in Clause 5, Section II of this Circular.
V. ORDER AND PROCEDURES FOR
CORRECTION OF ERRORS
1. When registration applicants detect errors in
their applications, they shall file their written requests for correction of
those errors and pay the error correction fee by one of the modes specified in
Clause 11, Section I of this Circular.
2. After receiving written requests for error
correction, registrars shall perform the jobs specified in Clause 2, Section II
of this Circular.
3. Registrars shall promptly input the
information declared in the written requests for error correction into the
database. Within the time limit for completion of the error correction
specified in Clause 13, Section I of this Circular, a registrar shall send to a
correction requester copies of the written request with certification of error
correction.
The grant of copies of written requests with a
certification of error correction is effected by one of the modes specified in
Clause 5, Section II of this Circular.
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VI. ORDER AND PROCEDURES FOR
DELETION OF REGISTRATIONS
1. Before the validity term of a registration
expires and in the following circumstances, a registration applicant may file
an application for deletion of the registration:
a/ The secured obligation terminates;
b/ The security transaction is revoked or
replaced by another security transaction;
c/ The security asset has been disposed of; or,
d/ The registration deletion is agreed upon by
the parties.
2. The filing of applications for registration
deletion complies with the provisions of Point 11.1, Clause 11, Section I of
this Circular. The registration of a security transaction ceases to be valid as
soon as the registry receives a valid application for deletion of that security
transaction registration.
Registration deletion applicants are not
required to pay any fee.
3. After receiving applications for registration
deletion, registrars shall perform the jobs specified in Clause 2, Section II
of this Circular.
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The grant of copies of applications with a
certification of deletion of security transaction registrations is effected by
one of the modes specified in Clause 5, Section II of this Circular.
5. Upon the expiration of the validity term of a
registration, if the registration applicant does not file an application for
deletion of security transaction registration or an application for
registration of security transaction extension, the registration center shall
automatically delete the registration.
VII. ORDER AND PROCEDURES FOR
REGISTRATION OF WRITTEN NOTICES ON DISPOSAL OF SECURITY ASSETS
1. The filing of applications for registration
of written notices on disposal of security assets and the payment of the
registration fee shall be made by one of the modes specified in Clause 11,
Section I of this Circular.
2. After receiving registration applications,
registrars shall perform the jobs specified in Clause 2, Section II of this
Circular.
3. Within the time limit for completion of the
registration specified in Clause 13, Section I of this Circular, a registrar
shall send to a registration applicant copies of the application with
certification of registration of the written notice on disposal of security
asset.
The sending of copies of applications for registration
of written notices on disposal of security assets with a registration center's
certification is effected by one of the modes specified in Clause 5, Section II
of this Circular.
4. A registration center shall promptly notify
the disposal of assets of the securing party to the concerned secured parties
(if any) at addresses declared by those parties when filing applications for
registration of security transactions.
5. Basing themselves on the scope of disposed
security assets, the concerned parties shall register changes in contents of
registered security transactions (reduction of security assets) under the
guidance in Section III of this Circular or effect the deletion of security
transaction registrations under the guidance in Section VI of this Circular.
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1. Organizations or individuals that request the
grant of copies of their applications with certification of registration
centers shall file their written requests by one of the modes specified in
Clause 11, Section I of this Circular to registration centers which give that
certification.
2. Requesters for grant of copies shall pay a
fee for grant of copies at rates set by law.
3. Within the time limit for completion of the
registration specified in Clause 13, Section I of this Circular, registrars
shall send copies of applications with registration centers' certification to
requesting organizations or individuals.
The grant of those copies is effected by one of
the modes specified in Clause 5, Section II of this Circular.
IX. ORDER AND PROCEDURES FOR
SUPPLY OF INFORMATION ON SECURITY TRANSACTIONS
1. Organizations and individuals are entitled to
request the supply of information on security transactions already registered
and archived in the national database of security transactions in the following
forms:
a/ A list of security transactions (by names of
securing parties), consisting of information on secured parties, time of
registration of security transactions, validity terms of security transaction
registrations which are still valid at the time of request for the information
supply (if any).
b/ A documented summary of information on
security transactions (by names of securing parties), consisting of information
specified at Point a of this Clause and amendments, supplements or correction
of errors in registered contents or registered security assets (if any).
2. Requesters for information supply shall file
their written requests for information supply and pay the information supply
charge to registration centers. The filing of written requests for information
supply and payment of information supply charge is effected by one of the modes
specified in Clause 11, Section I of this Circular.
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3. A registration center shall supply a list or
a documented summary of information on security transactions to an information
supply requester right after receiving a written request or on the date of
receipt of a written request. If a registration center receives a written
request for information supply after 3:00 p.m., the supply of information shall
be carried out in the next working day.
The supply of lists or documented summaries of
information on security transactions is effected by one of the modes specified
in Clause 5, Section II of this Circular.
X. ORGANIZATION OF
IMPLEMENTATION
1. This Circular takes effect 15 days after its
publication in "CONG BAO."
2. This Circular replaces the Justice Ministry's
Circular No. 01/2002/TT-BTP of January 9, 2002, 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 Justice Ministry and its branches.
3. Pledges of assets or guarantees with assets
registered before the effective date of this Circular are still valid under the
law on registration of security transactions and are not required to be
re-registered under this Circular.
Pledges of assets or guarantees with assets
which fall under the registration competence of registration centers before the
effective date of this Circular and are still in the pledge or guarantee
duration but have not yet been registered shall be registered in the form of
asset mortgage under this Circular. Unless otherwise agreed by the involved parties,
contracts for pledge of assets or guarantee with assets need not be revised
into contracts for mortgage of assets.
4. Promulgated together with this Circular are
forms (not printed herein) for use in the registration of, and the supply of
information on, security transactions at registration centers.
5. Difficulties or problems arising in the
course of implementation should be promptly reported by the concerned
individuals or organizations to the Justice Ministry for study and solution.
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