Nghị định 08/2000/NĐ-CP về đăng ký giao dịch bảo đảm

DECREE

ON REGISTRATION OF SECURITY TRANSACTIONS

THE GOVERNMENT

Pursuant to the Law on Organization of the Government of September 30, 1992;
Pursuant to the Civil Code of October 28, 1995;
At the proposal of the Minister of Justice,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of application

This Decree stipulates the registration of the pledge and mortgage of, as well as the guaranty with assets (hereafter referred collectively to as registration of security transactions); the organization, tasks and powers of the security transaction registries, as well as the registration order and procedures, except where otherwise provided for by laws, ordinances or decrees.

Article 2.- Objects of registration

1. The following cases must be registered with the security transaction registries:

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

b/ The pledge or mortgage of assets other than those stipulated at Point a, Clause 1 of this Article, but such assets are held by the pledgor, the mortgagor or the third person as agreed upon by the concerned parties;

c/ The pledge or mortgage of one asset to ensure the performance of more than one obligation;

d/ The written notice on the handling of the security assets.

2. When requested, the guaranty with assets may also be registered.

3. Other cases as prescribed by law.

Article 3.- Principles for registration of security transactions

1. The security transactions shall be registered on the basis of the contents declared in the written request of the registration applicant.

The contents declared in the application for registration must be accurate, adequate and truthful. The registration applicant shall take responsibility for the registration contents.

In case of necessity, the registry may ask the registration applicant to supply papers related to the registration.

2. The registry shall have to promptly make registration in strict accordance with the contents declared by the registration applicant, and create conditions for registration as well as information inquiry.

3. The national data system on security transactions and security transaction registers shall be accessible to all people for their consultation and information inquiries when they so demand.

Article 4.- Fees

1. Applicants for registration, applicants for registration of changes, applicants for registration of extension and applicants for supply of information on security transactions shall all have to pay fees when submitting their applications; where the applications are sent by mail or other means of communication, fees shall be paid into the accounts of the security transactions registries.

2. The levels, management and use of fees for registration of security transactions and supply of information thereon shall be jointly provided for by the Finance Ministry and the Justice Ministry.

Chapter II

STATE MANAGEMENT OVER REGISTRATION OF SECURITY TRANSACTIONS, SECURITY TRANSACTION REGISTRIES

Article 5.- Tasks and powers of the Justice Ministry in the State management over registration of security transactions

The Ministry of Justice shall assist the Government in exercising the unified management over the security transactions registration, and have the following tasks and powers:

1. To compile and submit to the competent agencies for promulgation or to promulgate according to its competence legal documents on registration of security transactions;

2. To guide, inspect, direct and provide professional and skill fostering for, security transaction registrars;

3. To manage the national security transaction registry;

4. To issue, manage and guide according to its competence the use of application forms, papers and registers, and organize the management of the "national data system on security transactions";

5. To take charge of the statistical work on security transactions registration, sum up and report to the Government the work of security transaction registration throughout the country;

6. To settle complaints and denunciations about security transactions registration according to its competence;

7. To effect international cooperation on security transaction registration.

Article 6.- Tasks and powers of the Ministry of Communications and Transport and Vietnam Civil Aviation Department in the State management over security transactions registration.

The Ministry of Communications and Transport and Vietnam Civil Aviation Department shall exercise the State management over security transaction registration for seagoing ships and airplanes, and have the following tasks and powers:

1. To compile and submit to the competent agencies for promulgation or to promulgate according to their competence legal documents on security transactions with regard to seagoing ships and airplanes;

2. To coordinate with the Justice Ministry in directing, guiding, inspecting and organizing the security transactions registration for seagoing ships and airplanes according to law;

3. To organize the professional and skill fostering for registrars of security transactions with regard to seagoing ships and airplanes;

4. To submit to the Justice Ministry biannual and annual reports on security transaction registration for seagoing ships and airplanes;

5. To settle complaints and denunciations about security transaction registration according to their respective jurisdiction.

Article 7.- Tasks and powers of the People�s Committees of the provinces and centrally-run cities in the State management over security transaction registration

The People’s Committees of the provinces and centrally-run cities shall exercise the State management over security transaction registration with regard to the land use right and immovable assets affixed to land in their respective localities, and have the following tasks and powers:

1. To direct, inspect and organize the registration as well as manage the registration of security transactions with regard to immovable assets and land use right according to the provisions of this Decree and relevant legal documents;

2. To establish the systems of security transaction registration for immovable assets and land use right in their respective localities;

3. To organize professional and skill fostering for registrars of security transactions with regard to immovable assets and land use right;

4. To submit to the Justice Ministry biannual and annual reports on security transaction registration with regard to immovable assets and land use right;

5. To settle complaints and denunciations about security transaction registration according to their competence.

Article 8.- Security transaction registries

1. The security transaction registries include:

a/ The national security transaction registry and its branches;

b/ The regional seagoing ship and crew member registry;

c/ The Vietnam Civil Aviation Department;

d/ The provincial/municipal Land Administration Service or Land Administration- Housing Service;

e/ The commune/ward/township People’s Committees.

2. The registration competence of the security transaction registries is defined as follows:

a/ The national security transaction registry and its branches shall register security transactions for different types of asset, except for cases registered at the bodies stipulated at Points b, c, d and e of this Clause;

b/ The regional seagoing ship and crew member registry where seagoing ships have been registered shall take charge of security transaction registration for seagoing ships;

c/ The Vietnam Civil Aviation Department shall register security transactions with regard to airplanes;

d/ The Land Administration Service or Land Administration- Housing Service of the locality where immovable assets exist shall register security transactions with regard to the land use right and immovable assets affixed to land in cases where the securing party is an organization;

e/ The People’s Committees of communes, wards or townships where the immovable assets exist shall register security transactions with regard to land use right or immovable assets affixed to land in cases where the securing party is a household or individual.

Article 9.- Tasks and powers of the security transaction registries

The security transaction registries shall have the following tasks and powers:

1. To register security transactions, changes of the already registered contents or extension; and clear the registration;

2. To issue security transaction registration certificates and copies thereof;

3. To register written notices on the handling of security assets;

4. To refuse the registration or the supply of information when the registration applicant or the information supply applicant fails to declare all the contents prescribed in the application form or fails to pay fees prescribed by law;

5. To supply information on the already registered security transactions;

6. To collect fees for registration, fees for supply of information on security transactions;

7. To archive dossiers, documents and preserve the already registered information.

Chapter III

ORDER AND PROCEDURES FOR REGISTRATION AND SUPPLY OF INFORMATION ON SECURITY TRANSACTIONS

Article 10.- Applicant for security transaction registration and sending of application for security transaction registration

1. The applicant for security transaction registration may be the securing party, the secured party or the authorized person. In case of a change of the securing party or the secured party, the new securing party or new secured party may also be the applicant for registration of such change.

2. The registration applicant may submit the application directly at the registry or send it by mail or other means of communication to the registry.

Article 11.- Contents of application for security transaction registration

An application for security transaction registration must include the following principal contents:

1. The securing party and secured party:

a/ In case of individual: His/her name, date of birth, identity card number (if any), address, telephone or fax number (if any);

b/ In case of organization: Its name, type, business registration number (if any), address of its head office, address of its branch, if the registration applicant is a branch, telephone or fax number (if any).

2. Description of the security assets.

Article 12.- Responsibilities of the registration applicant

1. The registration applicant shall have to make full declaration in strict compliance with the application form, the truth and agreement between concerned parties to security transactions.

2. Where the registration applicant writes in the application form contents at variance with the truth and the agreement of concerned parties to security transactions, thus causing damage, such applicant shall have to pay compensation therefor to the sufferers.

Article 13.- Effect of registration

The security transaction registration shall be effective for five years from the registration date, except where the concerned parties request the clearance of such registration ahead of time or request the registration of extension. Each extension registration shall be valid for five years.

Article 14.- Receiving applications for security transaction registration

1. Upon the receipt of an application for security transaction registration with full contents inscribed according to the set form, the registry shall have to inscribe in such application the time of receipt (hour, day, month, year) and give the applicant a copy thereof.

2. Where the application for security transaction registration is not fully inscribed with the contents according to the set form or the registration applicant does not pay fees, the registry shall return such application, clearly stating the reasons for refusal of registration.

Article 15.- Issuance of security transaction registration certificates

The registry shall have to promptly load the contents of the registration application into the data system or the register, and within 3 days after receiving the valid application have to grant a security transaction registration certificate to the applicant.

Article 16.- National data system on security transactions

The security transactions related to movable assets, seagoing ships, airplanes, land use right and immovable assets affixed to land shall be preserved in the "national data system on security transactions" (hereafter referred to as the data system) under the name of the securing party.

The data system is a national database uniformly managed by the national security transaction registry.

Article 17.- Security transaction register

1. Security transactions related to seagoing ships and airplanes shall be recorded in the national seagoing ship register and airplane registration book.

2. Security transactions related to immovable assets and land use right of organizations, individuals and households shall be recorded in the security transaction register for immovable assets under the name of the securing party.

Article 18.- Contents of security transaction registration certificates

A security transaction registration certificate shall have the following principal contents:

1. The securing party and the secured party:

a/ Being an individual: His/her name, date of birth, identity card number (if any), telephone or fax number (if any);

b/ Being an organization: Its name, type, business registration number (if any), address of its head-office, address of its branch’s office, if the registration applicant is a branch, telephone or fax number (if any).

2. The security assets: To inscribe the contents on the security assets as in the registration application;

3. The time of registration;

4. The effective registration time-limit;

5. The time of expiry of registration;

6. The registration number;

7. The list of the security transactions under the name of the securing party available in the data system or the register at the time of issuance of the security transaction registration certificate.

Article 19.- Changing the registered contents

1. The registration applicant may request the registry to change the already registered contents. The person requesting to change the registered contents shall have to send an application for changes to the competent registry according to the provisions of Article 8 of this Decree.

2. An application for changes in the registered contents shall have the following main contents:

a/ Change of the registration applicant:

Being an individual: His/her name, date of birth, identity card number (if any), address, telephone or fax number (if any);

Being an organization: Its name, type, registration number (if any), address of its head office, address of the branch’s office, if the registration applicant is a branch, telephone or fax number (if any).

b/ Contents of changes: The securing party, the secured party, the security assets, the change of the order of payment priority (if any) and other contents already registered.

Article 20.- Correcting errors

Where the registration applicant detects errors in the application for registration or security transaction registration certificate, he/she/it shall have the right to ask the registry to correct such errors in strict compliance with the contents already declared in the registration application. The submission of the written request for error correction shall comply with the provisions of Article 10, this Decree.

Upon the receipt of the written request for error correction, the registry shall have to write the time of the receipt (hour, day, month, year) thereon. Within 3 days after receiving the valid written request, the registry shall have to issue a security transaction registration certificate to the applicant requesting the error correction.

Article 21.- Registration time

1. The security transaction registration time is the time when the registry receives the valid application according to the provisions of Clause 1, Article 14 of this Decree.

2. The security transaction registration time in the following cases shall be calculated as follows:

a/ Where the registration applicant files a written request for correction of errors in the registration application, the registration time shall be the time the registry receives the written request for correction of such errors;

b/ Where the registration applicant files a written request for correction of errors in the registration certificate, the registration time shall be the time the registry receives the registration application according to the provisions of Clause 1, Article 14 of this Decree;

c/ Where the applicant for registration has written request on registration of changes, the registration time shall be the time the registry receives the registration application according to the provisions of Clause 1, Article 14 of this Decree; if it is a request for registration of supplement of the security assets, the registration time shall be the time the registry receives the written request for supplement of such security assets.

Article 22.- Legal validity of security transaction registration

1. The registered security transactions shall be valid for the third person from the registration time till the expiry of the registration stipulated in Article 13 of this Decree.

2. The order of priority for payment between people secured with the same asset shall be determined according to the order of registration.

3. The registration of security transactions and security transaction registration certificate shall not be valid as certification of the security transactions’ truthfulness.

Article 23.- Clearance of registration

The clearance of registration shall be effected as follows:

1. Before the expiry of the registration time-limit stipulated in Article 13 of this Decree, the securing party or the secured party shall request the clearance of registration in cases stipulated in Articles 343, 362, 375 and 418 of the Civil Code and in case of termination of the secured obligations; the registration clearance applicant shall have to make full declaration in the application form for registration clearance and send it to the registry according to the provisions of Article 10 of this Decree. The registration clearance applicant shall not have to pay fees.

2. The registry shall clear the registration in the data system or the register. Within 3 days after receiving the application for registration clearance, the registry shall issue a certificate of security transaction registration clearance to the applicant according to the set form. Where the applicant for registration clearance is the securing party, the registry shall have to send the secured party a copy of the certificate of security transaction registration clearance.

Article 24.- Supply of information on security transactions

1. All individuals and organizations have the right to inquire into information on security transactions. The registries shall have to provide guidance and create conditions for individuals and organizations to inquire into information on security transactions.

2. The supply of information shall be effected under the name of the securing party mentioned in the application.

The registry shall provide the applicant with information on security transactions under the name of the securing party, which is available in the data system or the register at the time of provision.

Article 25.- Competence of security transaction registries in supplying information

The competence of security transaction registries in supplying information is stipulated as follows:

1. The national security transaction registry and its branches shall supply information on security transactions available in the data system;

2. The seagoing ships and crew member registry and Vietnam Maritime Department shall supply information registered on security transactions related to seagoing ships;

3. The Vietnam Civil Aviation Department shall supply information on registered security transactions related to airplanes;

4. The Land Administration Services or Land Administration- Housing Services of localities having immovable assets shall supply information on registered security transactions related to land use right and immovable assets affixed to land of organizations;

5. The People’s Committees of communes, wards and townships where the immovable assets exist shall supply information on registered security transactions related to land use right and immovable assets affixed to land of individuals and households.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 26.- Alteration of re-registration of security transactions

Security transactions with regard to immovable assets already registered before the date this Decree takes effect, which now fall under the registration competence of the national security transaction registry and its branches shall be re-registered according to the application of the registration applicant.

Within 12 months after this Decree takes effect, if individuals or organizations apply for re-registration, they shall not have to pay the registration fees and the former registration date shall still be reserved; applications for re-registration submitted after this time-limit shall be considered applications for new registration, which shall take effect as from the registration time stipulated in Article 21 of this Decree.

Article 27.- Effect of the Decree

This Decree takes effect 15 days after its signing.

The earlier provisions contrary to this Decree are all now annulled.

Article 28.- Implementation of the Decree

1. The Ministry of Justice, the ministries, the ministerial-level agencies and the agencies attached to the Government shall, within the ambit of their functions, tasks and powers, have to guide the implementation of this Decree.

2. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.

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