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THE MINISTRY OF JUSTICE
THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT
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SOCIALIST REPUBLIC
OF VIET NAM
Independence
- Freedom - Happiness
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No: 03/2003/TTLT/BTP-BTNMT
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Hanoi, July 04, 2003
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JOINT CIRCULAR
GUIDING THE ORDER AND PROCEDURES
FOR REGISTERING AND SUPPLYING INFORMATION ON, MORTGAGE OF, AND GUARANTEE WITH,
LAND USE RIGHT AND ASSETS ATTACHED TO LAND
Pursuant to the
Government's Decree No. 08/2000/ND-CP of March 10, 2000 on registration of security
transactions;
Pursuant to the Government's Decree No. 17/1999/ND-CP of March 29, 1999 on the
procedures for exchange, transfer, lease, sublease and inheritance of the land
use right as well as for mortgage of, and capital contribution with, the land
use right value;
Pursuant to the Government's Decree No. 79/2001/ND-CP of November 1, 2001
amending and supplementing a number of articles of the Government's Decree No.
17/1999/ND-CP of March 29, 1999 on the procedures for exchange, transfer,
lease, sublease and inheritance of the land use right as well as for mortgage
of, and capital contribution with, the land use right value;
In order to ensure the uniform implementation of the legal documents on
registration of mortgage of, or guarantee with, land use right and assets
attached to land, and to create favorable conditions for activities of
registration and information supply in this domain, the Justice Ministry and
the Natural Resources and Environment Ministry hereby jointly guide the order
and procedures for registering and supplying information on mortgage of, or
guarantee with, land use right and assets attached to land as follows:
I.
GENERAL MATTERS
1. Scope of regulation
This Circular guides
in detail the following matters:
1.1. Registration of
and supply of information on mortgage of, or guarantee with, land use right and
assets attached to land of domestic households and individuals; and foreign
organizations and individuals that, according to the provisions of law, are
entitled to mortgage or provide guarantee with land use right and assets
attached to land (hereinafter referred collectively to as the registration of,
and supply of information, on mortgage and/or guarantee);
1.2. Responsibilities,
tasks and powers of the provincial/municipal Natural Resources and Environment
Services and the People's Committees of communes, wards or district townships
in the registration of, and supply of information on, mortgage and/or
guarantee;
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2. Cases of
registration of mortgage and guarantee
2.1. The following
cases of mortgage and guarantee must be registered:
a/ The mortgage of, or
guarantee with, the land use right or with the land use right and assets
attached to land;
b/ The mortgage of, or
guarantee with, assets attached to land, which, as prescribed by law, are
subject to the ownership registration;
c/ The mortgage of
assets attached to land other than the case prescribed at Item b of this Point,
but the parties agree to let the mortgagor or a third party keep such assets;
d/ The mortgage of
assets attached to land as security for performance of many obligations;
e/ Written notices on
the disposal of mortgaged or guarantee assets.
2.2. Cases of
registration at requests:
When one party or
parties to contracts on guarantee with assets attached to land, that do not
fall within one of the cases prescribed at Point 2.1 of this Clause, request,
such guarantee shall also be registered.
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a/ Dwelling houses,
other construction works attached to land;
b/ Assets attached to
dwelling houses or other construction works specified in Item a of this Point
in cases of mortgage or guarantee, including dwelling houses, other
construction works and such assets;
c/ Perennial tree
gardens, forests;
d/ Other assets
attached to land.
3. Responsibilities of
parties to mortgage or guarantee contracts in the registration
Parties to mortgage or
guarantee contracts shall have to take self-responsibility for the truthfulness
of contents declared in registration applications, registration dossiers and
the legality of mortgage or guarantee contracts. If the parties inscribe in the
registration applications untruthful contents or contents inconsistent with
agreement in the mortgage or guarantee contracts, or commit acts of forging
dossiers, they shall have to pay compensations to damage-suffering parties
according to the provisions of law.
4. Responsibilities of
mortgage and guarantee registries
The mortgage and
guarantee registries defined in Clause 1, Section II of this Circular have the
responsibility:
4.1. To register in an
accurate manner valid applications strictly according to their contents already
declared by the registration requesters according to the provisions of this
Circular. If inaccurate registration causes damage, compensations therefor must
be made according to the provisions of law;
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4.3. To refrain from
requesting parties to mortgage or guarantee contracts to submit any papers
other than those prescribed in this Circular.
5. Registration
requesters
Mortgage or guarantee
registration requesters mentioned in this Circular are the following persons:
5.1. Mortgagors and
mortgagees;
5.2. Guarantors and
guarantees;
5.3. New mortgagors, new
guarantors or new mortgagees, new guarantees in case of change of one of the
parties prescribed at Points 5.1 and 5.2 of this Clause;
5.4. Persons
authorizationd by one of parties to mortgage or guarantee contracts or by all
of them.
6. Declarers of registration
applications
Mortgagees, guarantees
or persons authorizationd by mortgagees or guarantees shall make declarations
in registration applications.
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7.1. Mortgage or
guarantee contracts already registered shall be legally valid to the third
party as from the time of registration till the date of registration deletion.
In cases where the
contract-signing parties transfer the land use right or purchase and/or sell
assets attached to land, which are currently mortgaged or used in guarantee and
have been registered, the mortgagees or guarantees shall still have the right
to dispose such assets to discharge due obligations which the mortgagors or
guarantors fail to perform or improperly perform. This prescription shall not
apply to
Before signing
contracts on transfer of land use right, purchase of dwelling houses or
conducting other transactions related to land use right, assets attached to
land, the parties should request the registries in the localities where exist
the land or assets attached to land, to supply information on such assets
according to the provisions in Section IX of this Circular.
7.2. Time of
registration is the time when the registries receive valid registration
dossiers
For case of additional
registration of mortgaged or guarantee assets, the time of registration of such
asset portions shall be the time when the registries receive valid additional
registration dossiers.
In cases where the
assets currently used in mortgage or guarantee are replaced with the land use
right or the land use right and assets attached to land, the parties shall
request the deletion of old registration and making of new registration
(considered as first-time registration). In these cases, the time of
registration shall be the time when the registries receive new valid
registration dossiers.
A valid dossier must
comprise all the papers required for each case prescribed in Clause 2, Section
III; Point 2.1, Clause 2, Section IV; Clause 1, Section V; Clause 1, Section
VI; Clause 1, Section VII and Clause 1, Section IX of this Circular.
Valid applications for
registration or information supply are those with all declaration contents
being filled in as guided in the application form.
7.3. Time of
registering mortgage or guarantee shall serve as basis for determining the
priority order of payment among mortgagees of or guarantees with the same
asset.
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8.1. Mortgage or
guarantee registration requesters; requesters for registration of change in
already registered mortgage or guarantee contents; requesters for correction of
errors in mortgage or guarantee registration applications shall have to pay the
registration fee.
8.2. Organizations and
individuals requesting the supply of information on mortgage and/or guarantee
shall have to pay information supply charge.
8.3. The fee and
charge rates and contents related to the registration fee and mortgage and/or
guarantee information supply charge shall comply with Joint Circular No.
33/2002/TTLT/BTC-BTP of April 12, 2002 of the Finance Ministry and the Justice
Ministry guiding the regime of collection, remittance, management and use of
the fee for registration of, and the charge for supply of information on, security
transactions and financial-leasing assets.
9. Forms for
registration of, and supply of information on, mortgage and/or guarantee
Requesters of
registration
The Justice Ministry
shall have to uniformly manage and guide the use of various prescribed forms
for registration or supply of information on mortgage and/or guarantee.
II.
AGENCIES REGISTERING MORTGAGE OF, AND GUARANTEE WITH, LAND USE RIGHT AND/OR
ASSETS ATTACHED TO LAND
1. Agencies
registering the mortgage of, and guarantee with, land use right and/or assets
attached to land
1.1. The Natural
Resources and Environment Services of the localities where exist land and
assets attached to land are competent to register and supply information on
mortgage and guarantee in cases where mortgagors or guarantors are
organizations.
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2. Tasks and powers of
provincial/municipal Natural Resources and Environment Services and the
People's Committees of communes, wards or district townships in the mortgage
and guarantee registration
2.1. To carry out the mortgage
or guarantee registration in the cases prescribed in Clause 2, Section I of
this Circular;
2.2. To carry out the
registration of changes in the already registered mortgage or guarantee
contents;
2.3. To issue the
originals of registration applications already certified by the competent
registries to the registration applicants. To issue copies of registration
applications already certified by the competent registries to the parties to
mortgage or guarantee contracts at their requests;
2.4. To delete
mortgage and guarantee registrations;
2.5. To make
registration of written notices on the disposal of mortgaged or guarantee
assets;
2.6. To decide on the
cancellation of the mortgage or guarantee registration according to the
provisions in Section VIII of this Circular;
2.7. To correct errors
in mortgage or guarantee registration contents;
2.8. To collect the
mortgage or guarantee registration fee;
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a/ They do not
fall under their mortgage and guarantee registering competence;
b/ The dossiers of
mortgage or guarantee registration are incomplete; papers are invalid;
c/ Mortgage or
guarantee registration applications fail to fully declare contents which must
be declared according to the forms promulgated together with this Circular (not
printed herein);
d/ Mortgage or
guarantee registration requesters fail to pay the registration fee;
e/ The law-prescribed
conditions for mortgage of, or guarantee with, the land use right are not fully
met.
2.10. To archive and
preserve the already registered dossiers, documents and information.
3. Tasks and powers of
the provincial/municipal Natural Resources and Environment Services and the
People's Committees of communes, wards or district townships in the supply of
information on mortgage and guarantee.
3.1. To supply
information on the already registered mortgages and guarantees at requests of
organizations and individuals;
3.2. To collect
information supply charge;
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a/ The applications
for information supply fail to fully declare or improperly declare the contents
which must be declared according to the form promulgated together with this
Circular (not printed herein);
b/ Information supply requesters
fail to pay the information supply charge.
III.
ORDER AND PROCEDURES FOR REGISTERING MORTGAGES OF, OR GUARANTEES WITH, LAND USE
RIGHT AND/OR ASSETS ATTACHED TO LAND
1. Before requesting
the registration of mortgage of, or guarantee with, land use right and/or
assets attached to land, the contracts on mortgage of or guarantee with land
use right and/or assets attached to land must be notarized if it is so agreed
by the parties or so prescribed by law.
2. Dossiers for
mortgage or guarantee registration shall be submitted at the mortgage and
guarantee registries according to the following regulations:
2.1. For registration
of mortgage of, or guarantee with, land use right or registration of mortgage
of, or guarantee with, land use right and assets attached to land, each
registration dossier comprises:
a/ The application for
registration of mortgage of, or guarantee with, land use right and assets
attached to land (03 copies); letter of authorization for cases where the
registration requester is an authorized person;
b/ The contract on
mortgage of land use right or land use right and assets attached to land (02
copies), or contract on guarantee with land use right or land use right and
assets attached to land (03 copies);
c/ The land use right
certificate or certificate of dwelling house ownership and residential land use
right for case of mortgage of, or guarantee with, the right to use residential
land and dwelling houses in urban centers;
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e/ Land rent payment
vouchers (for case of land leased by the State).
2.2. For registration
of mortgage of, or guarantee with, assets attached to land, each registration
dossier comprises:
a/ The application for
mortgage or guarantee registration (03 copies); letter of authorization for
cases where the registration requester is an authorized person;
b/ Certificate of
ownership over assets attached to land for cases where the law prescribes that
such assets are subject to the ownership registration.
3. Upon receiving
mortgage or guarantee registration dossiers, registration officials shall have
to check whether the applications fall under their agencies' competence or not,
and examine the completeness and validity of the registration dossiers.
If the mortgage or
guarantee registration is under their competence and the dossiers are valid,
the registration officials shall request the dossier submitters to pay the
registration fee; record the time of dossier receipt (minute, hour, day, month,
year) in the registration applications; make entries in the registration
dossier reception books and give the registration requesters slips of
appointment for the return of registration results in case of direct return
thereof.
When there exists one
of the grounds for registration refusal defined at Point 2.9, Clause 2, Section
II of this Circular, the registration officials shall refuse to make
registration and guide the registration requesters to strictly observe the
regulations.
4. Within seven (7)
working days after receiving valid dossiers, the registries shall have to
perform the following:
4.1. Verifying land
use papers and conditions for mortgage of, or guarantee with, the land use
right according to the provisions of law. If the mortgage or guarantee
conditions are fully met, they shall certify the verification results in the
mortgage or guarantee contracts. If the mortgage or guarantee conditions are
not fully met, they shall have to notify such to the registration requesters;
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4.3. Certifying the
mortgage or guarantee registration in the registration applications;
4.4. Keeping one (01)
copy of the mortgage or guarantee registration application, sending one copy
thereof to the National Registry of Security Transactions, and returning
another directly or by mail to the registration requester together with the
contract and other papers prescribed in Clause 2 of this Section.
IV.
REGISTRATION OF CHANGES IN THE ALREADY REGISTERED MORTGAGE OR GUARANTEE
CONTENTS
1. Cases where changes
in the already registered mortgage or guarantee contents must be registered
1.1. Change of one of
the signatories to a mortgage or guarantee contract, except for case of change
of the mortgagor or the guarantor with land use right prescribed in Item b,
Point 3.1, Clause 3 of this Section; change of names, addresses, identity card
or passport serial numbers, business registration numbers, establishment or
investment license serial numbers of one party or the parties to mortgage or
guarantee contracts;
1.2. Partial
withdrawal of mortgaged or guarantee assets being the land use right or assets
attached to land;
1.3. Replacement or
addition of mortgaged or guarantee assets being assets attached to land;
1.4. Change of the
payment priority order upon the disposal of mortgaged or
1.5. Completion of
construction works, or new planting of perennial tree gardens or forests under
the ownership of mortgagors or guarantors (for case of mortgage of, or
guarantee with, assets to be formed in the future).
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2.1. Requesters of
registration of changes in the already registered mortgage or guarantee
contents shall submit registration dossiers at the agencies where such mortgage
or guarantee has been registered. Each registration dossier comprises:
a/ The
application for registration of changes in the already registered mortgage or
guarantee contents (03 copies); and letter of authorization for cases where the
registration requester is an authorized person;
b/ Asset ownership
certificate if the law prescribes that such assets are subject to the ownership
registration, for the cases prescribed at Points 1.3 and 1.5, Clause 1 of this
Section.
2.2. The dossier
reception shall comply with the provisions in Clause 3, Section III of this
Circular.
2.3. Within seven (7)
working days after receiving valid dossiers, the registries shall have to
perform the following:
a/ Verifying asset
ownership certificates, contents of applications for registration of changes in
the already registered mortgage or guarantee contents, and comparing them with
the registration dossiers kept at the registries. If the conditions for
registration of changes in mortgage or guarantee contents are fully met, they
shall make entries in the security transaction books and give certifications in
the registration applications. If registration conditions are not fully met,
they shall notify such to the registration requesters.
In cases where the
registration of changes in the already registered mortgage or guarantee
contents leads to changes in contents inscribed in the land administration
books or the books for monitoring land changes, they shall, together with
making entries in the security transaction registers, have to make entries in
the land administration books and the books for monitoring land changes
according to guidance inscribed therein;
b/ Keeping one (01)
copy of the application for registration of changes in the already mortgage or
guarantee contents, sending one copy thereof to the National Registry of
Security Transactions, and returning another directly or by mail to the
registration requester together with the papers prescribed in Item b, Point
2.1, Clause 2 of this Section.
3. Cases of changes in
the already registered mortgage or guarantee contents subject to the new
registration
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a/ Replacement or
addition of mortgaged or guarantee assets being the land use right;
b/ Change of land use
right mortgagors or guarantors.
3.2. For the cases
prescribed at Point 3.1.
V.
ORDER AND PROCEDURES FOR DELETING REGISTRATIONS OF MORTGAGES OF, OR GUARANTEES WITH, LAND USE RIGHT AND/OR ASSETS ATTACHED
TO LAND
1. Mortgage or
guarantee registration deletion requesters must submit applications therefor (3
copies) at the agencies where the mortgage or guarantee registration has been
made. In cases where the registration deletion requesters are authorized
persons, letters of authorization are required.
2. The dossier
reception shall comply with the provisions in Clause 3, Section III of this
Circular.
3. Within three (03)
working days after receiving valid dossiers, the registries shall have to
delete the mortgage or guarantee registrations from the security transaction
registers. In cases where security assets are land use right or land use right
and assets attached to land, the registries shall, together with the deletion
of the mortgage or guarantee registrations from the security transaction
registers, have to delete the mortgage or guarantee registrations from land
administration books and books for monitoring land changes. They shall also
certify the deletion of the mortgage or guarantee registrations in the
applications therefor.
4. The archival of
dossiers and the notification of the result of the mortgage or guarantee
registration deletion shall comply with the provisions at Point 4.4, Clause 4,
Section III of this Circular.
In cases where the
registration deletion requester is the mortgagor or guarantor, the registries
shall send one copy of the application for mortgage or guarantee registration
deletion to the mortgagee or guarantee. Registries having no conditions to copy
the applications shall notify in writing the registration deletion to the
mortgagees or guarantees.
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1. In cases where the
mortgaged or guarantee assets already registered at the registries must be
disposed, within fifteen (15) days before disposing the mortgaged or guarantee
assets, the mortgagees or guarantees shall have to submit the applications for
registration of written notices on disposal of such assets (3 copies) at the
mortgage- and guarantee-registering agencies. For cases where the registration
requesters are authorized persons, letters of authorization are required.
2. The reception of
applications for registration of written notices on disposal of mortgaged or
guarantee assets shall comply with the provisions in Clause 3, Section III of
this Circular.
3. Within three (03)
working days after receiving valid dossiers, the registries shall have to
perform the following:
3.1. Verifying the
dossiers, making entries thereof in the security transaction registers, giving
certifications in applications for registration of written notices on disposal
of the mortgaged or guarantee assets;
3.2. Notifying in
writing the disposal of the mortgaged or guarantee assets to the co-mortgagees
or co-guarantees in cases where the land use right or assets attached to land
are mortgaged or used in guarantee to secure the performance of many
obligations.
3.3. The archival of
dossiers and the notification of the registration result shall comply with the
provisions at Point 4.4, Clause 4, Section III of this Circular.
4. Upon the completion
of the disposal of all mortgaged or guarantee assets, the requesters of
registration of written notices on disposal of mortgaged or guarantee assets shall
have to send applications for mortgage or guarantee registration deletion to
the agencies where the written notices on disposal of mortgaged or guarantee
assets have been registered, so that the latter shall effect such registration
deletion according to the provisions in Section V of this Circular.
In cases where only a
part of mortgaged or guarantee assets is disposed, the applicants for
registration of written notices on disposal of the mortgaged or guarantee
assets shall, upon the completion of the disposal, have to send applications
for registration of changes in already registered contents (withdrawal of part
of mortgaged or guarantee assets) to the agencies where the written notices on
disposal of mortgaged or guarantee assets have been registered, so that the
latter shall carry out the registration of changes in such already registered
contents according to the provisions in Section IV of this Circular.
VII.
CORRECTION OF ERRORS IN REGISTERED MORTGAGE OR GUARANTEE CONTENTS
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2. Registration
officials shall record in the written requests the time (minute, hour, day,
month,
3. Within three (03)
working days after the receipt of valid error correction written requests, the
registries shall have to correct the errors and give certifications in the
error correction written requests.
4. The archival of
dossiers and the notification of the error correction result shall comply with
the provisions at Point 4.4, Clause 4, Section III of this Circular.
VIII.
CANCELLATION OF MORTGAGE OR GUARANTEE REGISTRATION RESULTS
In cases where the
registries, after the mortgages or guarantees have been registered, detect the
declared contents in the registration applications are untruthful or
inconsistent with the parties' agreements but the parties do not request the
error correction, they shall issue documents on cancellation of such mortgage
or guarantee registrations and delete the registrations according to the provisions
in Clause 3, Section V of this Circular.
The documents on
cancellation of mortgage or guarantee registration must be sent to the mortgage
or guarantee registration requesters and the National Registry of Security
Transactions.
IX.
SUPPLY OF INFORMATION ON MORTGAGE OF, OR GUARANTEE WITH, LAND USE RIGHT AND
ASSETS ATTACHED TO LAND
1. All organizations
and individuals that wish to inquire into information on mortgage of or
guarantee with land use right and assets attached to land may submit information
supply requests at the following State agencies:
1.1. The Natural
Resources and Environment Services of localities where the land and assets
attached to land exist, for case of inquiries into information on mortgage or
guarantee with mortgagors or guarantors being organizations;
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1.3. The National
Registry of Security Transactions or its branches, in case of inquires into
information on mortgage or guarantee of organizations, households and
individuals throughout the country when the national data system of security
transactions officially operates.
2. Information supply
requesters shall have to pay information supply charge upon submitting
information supply requests.
3. Upon receiving
information supply requests, registration officials shall have to examine them,
refer to information in the security transaction registers and inspect the
charge collection; then supply available information on mortgage or guarantee
according to the names of mortgagors or guarantors already recorded in the
security transaction registers.
Within three (03)
working days after receiving valid information supply requests, the registries
shall hand directly or send by mail information supply documents to the
requesters.
X.
IMPLEMENTATION ORGANIZATION
1. This Circular takes
effect 15 days after its publication in the Official Gazette.
2. Contracts on
mortgage of, or guarantee with, land use right and/or assets attached to land
signed before the effective date of this Circular and still valid must also be
registered according to the provisions of this Circular.
3. To promulgate
together with this Circular the forms of registration or supply of information
on mortgage or guarantee (not printed herein) to be applied at the
provincial/municipal Natural Resources and Environment Services and the
People's Committees of communes, wards or district townships in replacement of
the previously prescribed forms.
4. Contents of
guidance on registration of mortgage of, or guarantee with, land use right
and/or assets attached to land in the following documents are hereby annulled:
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4.2. Clause 3, Section
II of the General Land Administration's Circular No. 1883/2001/TT-TCDC of November
12, 2001 guiding the forms of contract in realizing the land user's rights;
forms of contract on mortgage of land use right value and contract on guarantee
with land use right value, promulgated together with Circular No.
1883/2001/TT-TCDC of November 12, 2001.
5. Responsibilities of
the People's Committees of the provinces and centrally-run cities for the State
management over the registration of security transactions with the land use
right and assets attached to land.
Apart from the tasks
and powers prescribed in Article 7 of the Government's Decree No. 08/2000/ND-CP
of March 10, 2000 on registration of security transactions, the People's
Committees of the provinces and centrally-run cities performing the State
management over the registration of security transactions with land use right
and assets attached to land in their respective localities shall also have the
following specific tasks and powers:
5.1. To arrange
officials to carry out the registration of mortgage of, or guarantee with, land
use right and/or assets attached to land at registries in their respective
localities;
5.2. To ensure
material and technical facilities for the registries to organize the
registration and information supply according to their competence;
5.3. To coordinate
with the Natural Resources and Environment Ministry and the Justice Ministry in
professionally fostering the officials engaged in the work of registration of
mortgage of, or guarantee with, land use right and/or assets attached to land.
6. Any problems
arising in the course of implementation of this Circular should be promptly
reported to the Justice Ministry and the Natural Resources and Environment
Ministry for study and solution.
MINISTER
OF JUSTICE
Uong Chu Luu
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