|
THE MINISTRY OF
JUSTICE
-------
|
SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom – Happiness
---------
|
|
No. 04/2002/TT-BTP
|
Hanoi, February 22nd,
2002
|
CIRCULAR
PROVIDING
THE GUIDANCE ON THE COMPETENCE, SEQUENCE AND PROCEDURE OF REGISTRATION,
PROVISION OF INFORMATION ON THE FINANCE LEASING ASSETS AND THE STATE'S
MANAGEMENT ON THE REGISTRATION OF FINANCE LEASING ASSETS
Pursuant to the Decree No. 38/CP dated 4
June, 1993 of the Government on the function, assignment, authority and
organization of the Ministry of Justice;
Pursuant to the Article 19 of the Decree No. 16/2001/ND-CP dated 2 May, 2001 of
the Government on the organization and operation of finance leasing companies;
With the view to publicity the information on finance leasing assets, creating the
legal basis on the rights, legal interests security of parties, which
participate in finance leasing contract and related individuals, organizations;
The
Ministry of Justice provides hereby the guidance on the competence, sequence
and procedure of registration, provision of information on the finance leasing
assets and the State's management on the registration of finance leasing assets
as follows:
I. GENERAL PROVISIONS
1. Scope of
application
This Circular shall provide guidance on the
implementation of following issues:
1.1 The competence, assignment and authority
of the national finance leasing assets registration agency under the Ministry
of Justice and branches of registration agency located in localities
(hereinafter referred to as the registration Department and branch) on the
registration, provision of information on finance leasing assets;
1.2 The sequence, procedures of registration,
provision of information on finance leasing assets;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The registration
agency and provision of information on finance leasing assets;
2.1 The competent agency shall have
competence to register, provide information on finance leasing assets shall be
the registration agency and its branches.
2.2 The registration agency and its branches
shall have competence to register, provide information on finance leasing
assets upon the request of individuals, organizations in the territory of the
whole country. Therefore, the person who requests the registration, provision
of information has right to choose and require the registration agency or its
branch(es) to perform the registration, provision of information on finance
leasing assets.
The registration, provision of information on
finance leasing assets at the registration agency or its branch(es) shall both
have the same legal validity.
3. The assignment,
authority of the registration agency and its branches in respect of the
registration, provision of information on finance leasing assets:
3.1. The registration agency and its branches
shall have following assignments, authorities in the registration of finance
leasing assets:
a. to register for the finance leasing
assets;
b. to register for the change of registered
contents;
c. to register for the extension;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
dd. to issue the Certificate of registration
and the copy of that certificate;
e. to correct the errors in the application
for the registration, the certificate of registration;
g. to cancel the registration certificate in
case where the person requiring for the registration has declared contents in
the application for the registration untruthfully, not in accordance with the
agreements in finance leasing contract:
h. to collect the registration fee;
i. to refuse the registration in case where
the application for the registration is not declared sufficiently in respect of
items which are subject to declaration in accordance with the forms issued in
conjunction with this Circular or the person who requests the registration
fails to pay the registration fees;
k. to keep files, documents and preserve the
registered information.
3.2. the registration agency and its branches
shall have following assignments, authorities in the provision of information
on finance leasing assets:
a. to provide the information on finance
leasing assets that have been registered at the registration agency and its
branches;
b. to collect fees for the provision of
information on finance leasing assets;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3.3. The registration agency and its branches
shall have competence to deal with complaints, denunciation in accordance with
provisions in the Section IX of this Circular.
4. The
responsibilities of registration officer:
The registration officer shall have following
responsibilities:
4.1. to carry out the registration, provision
of information in accordance with the sequence, procedures as provided for in
this Circular;
4.2. to register exactly the contents
declared in the application for the registration;
4.3. In case where the registration officers
fails to register exactly the contents stated in the application for the
registration which causes damages, they shall be subject to the compensation
for damages in accordance with provisions of applicable laws on the
responsibility for damage compensation of civil servants.
5. Subjects of
registration
The following assets when are leased by
finance leasing companies in the territory of Vietnam or foreign countries by
the finance leasing contract must be registered at the registration agency and
branch (es).
5.1. Machines, equipment, producing line;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
5.3. Other movable estates in accordance with
provisions in Article 2 Article 181 of the Law on Civil Code.
6. Principal of
registration, provision of information on finance leasing assets
6.1 Finance leasing assets are registered on
the basis of stated contents in the application of the person who requests for
the registration. The person who requests for the registration must state
exactly, fully, in accordance with the agreement of parties which participate
in finance leasing contract and be responsible for the stated contents in the
application.
The valid application for the registration
shall be the application is stated fully the items in accordance with the forms
issued in conjunction with this Circular and the contents in accordance with
signed finance leasing contract.
6.2 The registration agency and branch (es)
must register timely, exactly in accordance with the stated contents in the
application and create conditions for the registration, research information on
finance leasing assets.
6.3 Information is kept in database of
finance leasing assets and the Register of finance leasing assets shall provide
for all individuals, organizations with the request of studying.
7. Effective term of
the registration on finance leasing assets
Effective term of the registration on finance
leasing assets shall be counted for the date of the registration agency and
branch issue the certificate of the registration on finance leasing assets to
the date of the termination of finance leasing.
8. The validity of
the registration on finance leasing assets
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
8.2 In case where the finance leasing assets
shall not be registered at the registration agency and its branch (es) in
accordance with provisions of this Circular, shall base on Article 139 of the
Civil Code, the lessee shall be entitled to require the Court to decide the
lessor must register within 7 days, form the date of effectiveness of Court's
decision; over that term they fail to register, the finance leasing assets
shall be ineffective. The lessor shall be obliged for the compensation for the
sufferer, if any.
9. The person who
requests for the registration, provision of information
The person who requests registration in cases
as provided for in points 3.1.a, 3.1.b, 3.1.c. 3.1.e paragraph 3 this Section
(generally calling as the person who requests for the registration) shall be
the lessees in the finance leasing contract, including:
a. The State finance leasing company;
b. Joint-stock finance leasing company
c. Finance leasing company under the
management of credit institutions;
d. Joint-venture finance leasing company;
dd. Finance leasing company of 100% foreign
invested capital.
e. In case where the finance leasing company
which lease for collective capital, shall united send one company representing
under the name of lessees send the application of registration, at the same
time, must state fully finance leasing companies with collective capital in
attached appendix.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
10. The
responsibilities of the person who requests for the registration:
10.1 The person who requests for the
registration shall have following responsibilities:
a. to state fully items which are subject to
declaration in the application for the registration in accordance with the form
issued in conjunction with this Circular. The contents stated in the
application must be exact, true, in accordance with the agreement of parties on
finance leasing contract;
b. to pay for the registration fee in
accordance with provision of applicable laws;
c. In case where the person who requests for
the registration states any content in the application that is untruthful, not
in accordance with agreements of parties on finance leasing assets causing
damages, they shall be obliged for the compensation for the sufferer.
10.2 The person who requests for the
provision of information shall have following responsibilities:
a. to state fully items which are subject to
declaration in the application for the provision of information in accordance
with the form issued in conjunction with this Circular or making reference by
themselves to information;
b. to pay for the registration fee in
accordance with provision of applicable laws;
c. In case of making reference by themselves
to information on finance leasing assets, the person who requests for the
registration shall perform seriously the regulations which are listed at the
registration agency and its branch (es).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
11.1 The person who requests for the
registration shall pay for the registration fee in following cases:
a. to register for the finance leasing
assets;
b. to register for the change of registered
contents;
c. to register for the extension;
d. to correct the errors in the application
for the registration.
11.2 Individuals, organizations shall pay for
fees when they request for the provision of information on finance leasing
assets.
11.3 Level of registration fee collection,
fee for the provision of information on finance leasing assets shall be
performed in accordance with provision of inter-minister of Finance and
Justice.
II. THE SEQUENCE,
PROCEDURES FOR THE REGISTRATION OF FINANCE LEASING ASSETS
1. The person who requests for the registration
shall submit the application for the finance leasing assets in accordance with
the Form No. 02 to the registration agency or its branch (es).
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
a. To hand in the application directly to the
registration agency or its branch (es);
b. To send the application by post in form of
a registered letter or express mail service;
c. To send the application by fax. The
submission of application by fax shall be performed only in case where the
person who requests for the registration are finance leasing companies that are
registered in the List of regular customer of the registration agency.
The registration agency shall provide the
guidance on the procedures of registration in the List of regular customer and
organize the implementation of this registration.
3. The person who requests for the
registration shall pay the fee in full by one of following modes:
a. Direct payment at the registration agency
or its branch (es) right after the application for the registration is accepted
by registration officer;
b. Transfer of money through the post service
and sending of the transfer order and application for registration;
c. Transfer of money to the account of the
registration agency or its branch (es), which receives the application and
sending to the registration agency or its branch (es) the confirmation document
of that transfer.
In case where the person who requests for the
registration subject to the List of regular customers of the registration
agency, the fee transfer to the account of the registration agency or its
branch (es) that receives the application for the registration, shall be
performed regularly on the monthly basis, within the period from the 25th to
the last day of the month.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
4.1 To examine the statement of items in the
application;
4.2 To examine the fee payment;
4.3 To state in the application the receipt
time (date, month, year), if it is valid and the fee payment shall be performed
in accordance with regulation.
The direct receipt time of application shall
be the time where registration officer receives the valid application.
The receipt time of application by post shall
be the time where the registration agency or it branch (es) receive the
application.
The receipt time of application by fax shall
be the time where the application is transferred by fax;
4.4 In case where the application is
receipted by fax, before the implementation of regulated works as provided for
in point 4.1, 4.2 and 4.3 this paragraph. The registration office determines
the person who requests for the registration is regular customer or not; if
not, shall not accept the application of registration;
4.5 In case where the application is handed
directly at the registration agency or it branch (es), after the implementation
of works as provided for in point 4.1, 4.2 and 4.3 this paragraph, the
registration officer give to the person who requests for the registration one
copy of the registration application with the confirmed time of receipt and
appointment letter for the issuance of registration certificate.
5. Within 3 days, from the date of receipt of
the valid application for the registration, the registration agency or its
branch (es) that receive the application for the registration shall issue the
registration certificate of the finance leasing assets in accordance with Form
No. 07 to the person who has requested for the registration; in case where the
application for the registration is received by post or fax, a copy of the
application for the registration shall be enclosed.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The certificate of registration is handed
directly at the registration agency or its branch (es), that has received the
application for the registration or is sent by the registered letter service of
the Post Office.
III. THE SEQUENCE,
PROCEDURES FOR REGISTRATION OF CHANGES IN THE REGISTERED CONTENTS
1. In case of following changes in the registered
contents, the person who has requested for the registration shall submit the
application for the registration of changed contents of the registered finance
leasing assets in accordance with Form No. 02 to the registration agency or its
branch (es) that has issued the registration certificate for the registration
of changes in the registered contents:
1.1 The lessor shall transfer their rights
and obligations in the finance leasing contract to other finance leasing
company;
1.2 The agreement of parties on the
amendment, supplement of finance leasing contract in respect of the change of
contents stated in the application for the registration on finance leasing
assets and other related applications.
2. The submission of the application for the
registration of changes, fees shall be performed in accordance with provisions
in paragraph 2, paragraph 3 Section II of this Circular.
3. After the receipt of the application for
the registration of changes. The registration officer shall perform works in
accordance with provisions of paragraph 4 section II of this Circular.
4. Within 3 days, from the date of receipt of
the application for registration of changes. The registration agency or its
branch(es) that has received that application shall issue the certificate of
registration of change contents that have been registered in accordance with
Form No. 08 to the person who has requested for the registration in mode
provided for in paragraph 5 section II of this Circular.
IV. THE SEQUENCE,
PROCEDURES OF THE REGISTRATION FOR THE EXTENSION
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The submission of the application for the
extension and fee shall be performed accordance with provisions in paragraph 2,
paragraph 3 Section II of this Circular.
3. After the receipt of the application for
the extension. The registration officer shall perform in accordance with
provisions in paragraph 5 section II of this Circular.
V. THE SEQUENCE,
PROCEDURES FOR THE DELETION OF REGISTRATION
1. The person who requests for the
registration shall submit the application for the deletion of finance leasing
assets registration in accordance with Form No. 04 in following cases:
a. The finance leasing contract terminates
before the term in accordance with provisions of Article 27 of the Decree No.
16/2001/ND-CP dated 2 may, 2001 on the organization and operation of finance
leasing companies. The submission of the application shall be performed before
the terminated date of finance leasing contract;
b. The termination of effective registration
term. The submission of the application shall be performed before the expiry
date of registration term.
2. The submission of the application for the
deletion of registration shall be performed in accordance with paragraph 2
Section II of this Circular.
The person who requests for the deletion of
registration shall not be required to pay fees for the deletion of
registration.
3. Within a period of 3 days, from the date
of receipt of the valid application for the deletion of registration, the
registration agency or its branch (es) that has received that application shall
carry out the deletion of the registration and issue the certificate of
registration deletion of finance leasing assets in accordance with Form No. 10
to the person who has submitted that application in mode as provide for in
paragraph 5 section II of this Circular.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
VI. CORRECTION OF
ERRORS
1. In case where the person who has requested
for the registration discovers any error in the application for the
registration or in the registration certificate, he shall submit the
application for the correction of the error in accordance with Form No. 05 to
the registration agency or its branch (es), that has received that application
or issued that certificate, for the correction in accordance with contents
stated in the application for the error correction. In case where an error in
the issued certificate of the registration is to be corrected, that certificate
shall be attached to the application.
2. The submission of application and payment
of fee for the correction of error shall be made in accordance with provisions
of paragraph 2, paragraph 3 Section II of this Circular.
3. After the receipt of the application for
the correction of errors in the application for the registration, the
registration officer shall delete the time of receipt stated in the previous
application for the registration and state the time of receiving the
application for the correction of errors as the time of receiving the
application for the correction of errors. The effective term of registration
shall be the time when registration agency or its branch (es) has received that
application for the correction of errors.
4. In respect of errors in certificates of
registration that have been issued, the registration officer shall preserve the
time of registration stated in those certificates and make the correction of
errors. The corrected contents in a certificate must be certified by the seal
of the registration agency or its branch (es), where the correction is made.
In case where the correction of the errors
cannot be made directly to the relevant content, the registration officer shall
state the correction in the item of correction in the certificate of
registration.
5. Within 3 days, from the date of receipt of
the valid application for the correction of errors, the registration agency or
its branch (es) shall make the correction and return to the person who requires
for the registration of finance leasing assets in mode as provided for in
paragraph 5 Section II of this Circular.
VII. THE SEQUENCE,
PROCEDURES FOR THE PROVISION OF INFORMATION ON FINANCE LEASING ASSETS:
1. Domestic individuals, organizations,
foreign individuals, organizations, Vietnamese citizens residing in abroad who
wish to study about information kept in the Register or in the Database on
finance leasing assets, may proceed their information study in following modes:
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
1.2 Making reference by themselves to
information in the Register at the registration agency or its branch (es) in
accordance with regulations which are listed at the registration officer and it
branch (es).
2. The person who requests for the provision
of information shall be provided information on the finance leasing assets
which are kept in the Register or the Database on finance leasing assets by
names of the lessor or lessee.
3. The submission of the application for the
provision of information fee for the provision of information shall be made in
accordance with provisions of paragraph 2 and paragraph 3 Section II of this
Circular.
4. After having received the application for
the provision of information on finance leasing assets, the registration
officer shall examine the application, the fee payment; if it is valid and the
fee is paid in accordance with the regulation, the registration office shall
look up the information in the Register or the National Database System on
finance leasing assets. Within 3 days, from the date of receipt of the valid
application, the registration agency or its branch (es) shall provide
information to the requesting person.
In case where the person who requests for the
provision of information wishes to have information in writing, the
registration officer shall provide the written information in accordance with
Form No. 11.
The issuance of document for the provision of
information on finance leasing assets shall be performed in mode as provided
for in paragraph 5 Section II of this Circular.
VIII. THE STATE'S
MANAGEMENT OF THE REGISTRATION ON FINANCE LEASING ASSETS
The registration agency assists the Ministry
of Justice to perform the State's management of the registration on finance
leasing assets, including following actions:
1. To draft, submit the registration to the
competent agency, which issues or issues under their competence the legal
document of the registration on finance leasing assets;
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
3. To issue, manage and guide under their
competence the use of application form, document, register book; to organize
the management of database system on finance leasing assets.
4. To statistic the registration of finance
leasing assets, collect and report to the Government on the registration of
finance leasing assets;
5. To resolute the complaint, denunciation of
the registration on finance leasing assets under their competence;
6. To implement the international cooperation
in the area of registration for finance leasing assets under the assignment of
the Minister of Justice.
IX. RESOLUTION OF THE
COMPLAINT, DENUNCIATION
1. Complaint
resolution:
1.1 In the area of registration, provision of
information on finance leasing assets, the person who requests for the
registration, provision of information shall have right to make complaints
against the decision, behavior of the registration agency or its branch (es),
the registration officer, civil servants of that agency, when they have
sufficient grounds to believe that that decision, behavior is unlawful,
violating their lawful right, interests.
1.2 The competence and term of the first
complaint resolution shall be performed as follows:
a. The Branch Manager shall be responsible
for the resolution of complaints against the decision, behavior of himself, of
the registration officer, civil servants working in his branch. Within 10 days,
from the date of the receipt of a complaint, the branch manager shall consider
and resolve it and give the written notice to the claimer for the latter’s
knowledge; in case of non-consideration, he must also give the written notice
and state clearly the reasons thereof.
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
b. The Director of the registration agency
shall be responsible for the resolution of the complaint against the decision,
behavior of himself, of the registration officer, civil servants working in the
registration agency. Within 10 days, from the date of the receipt of a
complaint, the Director of the registration agency shall consider and resolve
it and give the written notice to the claimer for the latter’s knowledge; in
case of non-consideration, he must also give the written notice and state
clearly the reasons thereof.
Within 30 days, from the expiry date of the
term of resolution in accordance with provisions in Article 36 of the Law on
the complaint, denunciation, if the complaint has not yet been resolved or from
the date of receipt of the first decision on the complaint resolution of the
Director of the registration agency, but the claimer does not agree, he shall
have the right to submit his complaint to the Minister of Justice or initiate
an administrative suitcase at the Court in accordance with applicable laws.
1.3 The competence and term of the next
resolution of a complaint shall be performed as follows:
a. The Director of the registration agency
shall consider and resolve the complaint that the Branch Manager has resolved
but there is still the complaint or the complaint has not yet been resolved
after the stipulated term. In those cases, the claimer must submit the
application, together with a copy of the decision on the complaint resolution
of the branch manager or related documents (if any) to the Director of the
registration agency.
Within 10 days, from the date of the receipt
of the complaint, the Director of the registration agency shall consider the
resolution and give the written notice to the claimer, the Branch Manager that
has resolved this complaint for their knowledge; in case of non-consideration,
he must also give the written notice and state clearly the reasons thereof.
The term of resolution of the complaint shall
be 45 days, from the date of consideration of resolution. Within 30 days, from
the expiry date of term of resolution in accordance with provisions in Article
43 of the Law on the complaint, denunciation, if the complaint has not yet been
resolved or from the date of receipt of the decision on the complaint
resolution of the Director of the registration agency, but the claimer does not
agree, he shall has right to submit the complaint to the Minister of Justice.
b. The Ministry of Justice shall consider and
resolve the complaint against the decision on complaint resolution of the
Director of registration agency but there is still the complaint or the
complaint has not yet been resolved after the stipulated term. Within 10 days,
from the date of the receipt of the complaint, the Ministry of Justice shall
consider the resolution and give the written notice to the claimer, in case of
non-consideration for resolution, it must also give the written notice and
state clearly the reasons thereof.
The term of resolution of the complaint for
the Minister of Justice shall be in accordance with provisions in Article 43 of
the Law on the complaint, denunciation. The decision of the Minister of Justice
on the resolution of the complaint shall be the final one.
2. Resolution of
denunciation
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
The claimer may submit the written
denunciation to or make direct denunciation at the competent agency,
organization, and individuals in accordance with applicable laws. In
above-mentioned cases, the claimer must state clearly his/her full name,
address, and contents of denunciation.
2.2 The competence of resolution of
denunciation shall be performed as follows:
a. In case of denunciation against the
violation by registration officers, civil servants working in branch of
applicable laws on the registration, provision of information on finance
leasing assets, the Branch Manager directly managing the registration officers,
civil servants who are denounced shall be responsible for the resolution of the
denunciation.
b. In case of denunciation against registration
officers, civil servants working in registration agency violating applicable
laws on the registration, provision of information on finance leasing assets,
the Director of the registration agency shall be responsible for resolution.
c. The Ministry of Justice shall consider and
resolve the denunciation in accordance with provisions of the Law on the
complaint, denunciation and current guiding documents.
2.3 The term for the resolution of
denunciations shall be performed as follows:
Within 10 days from the date of the receipt
of a denunciation at the latest, the agency that receives the denunciation must
consider it for resolution; in case where the denunciation is not within its
competence, the denunciation shall be transferred to the competent agency for
resolution and give the written notice to the denunciator.
The term for the resolution of denunciations
shall not exceed 60 days, from the date of consideration for resolution. In
respect of complicated cases the term of resolution shall not exceed 90 days,
from the date of its consideration for resolution.
X. ORGANIZATION OF
IMPLEMENTATION
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.
2. The assets leased on the basis of finance
leasing contracts, which were signed before the effective date of this Circular
and are still within their effective term, shall be registered in accordance
with provisions of this Circular.
3. To issue in conjunction with this Circular
Forms on the registration and provision of information on finance leasing
assets.
4. For any obstacle that may arise during the
process of implementation of this Circular, individuals, organizations are
requested to report to the Ministry of Justice for study and resolution
MINISTER OF JUSTICE
Nguyen Dinh Loc
FILE ATTACHED
...
...
...
Please sign up or sign in to your Pro Membership to see English documents.