|
THE
MINISTRY OF JUSTICE
-------
|
SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
------------
|
|
No:
01/2002/TT-BTP
|
Hanoi,
January 09, 2002
|
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
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