Thông tư 04/2002/TT-BTP

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;

1.3 The State's management for the registration, provision of information on finance leasing assets;

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;

d. to delete the registration;

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;

c. to refuse the provision of information on finance leasing assets in case where the application for the provision of information 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 provision of information fails to pay fee for the provision of information.

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;

5.2. Cars, see going vessels, a river steamers and other means of transportation;

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

8.1 The registration of finance leasing assets shall be value to the third person within the effective term of the registration in accordance with provisions in paragraph 7 this Section. The certificate of registration on finance leasing assets shall be the legal basis for the lessor who requires for the third person who received the finance leasing assets conversion without their agreement shall return these assets to the third person.

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.

9.2 Individuals, organizations with the request of information studying on finance leasing assets shall be entitled to request the registration agency and it branch (es) to provide information.

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).

11. Fees for the registration, provision of information

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).

2. The submission of application for the registration shall be performed in one of following modes:

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.

4. After the receipt of the application for the registration, the registration officer shall perform following works:

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.

The registration agency and its branch (es) shall not extend the certificate to the person who has requested for the registration in case where they have discovered the overlapping registration for the finance leasing contract.

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

1. Within a period of 3 months before the terminating date of effective term of the finance leasing assets registration if the finance leasing is extended, the person who requires the registration shall submit the application for the extension of finance leasing assets in accordance with Form No. 03 to the registration agency or its branch(es), where these assets has been registered to carry out registration of the extension.

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.

4. After the expiry date of registration term, the person who has requested for the registration fails to have submitted the application for the extension, the registration agency or its branch (es) shall automatically carry out the deletion of registration and only issue the certificate of the registration deletion, if so requested.

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:

1.1 Submission of application for the provision of information in accordance with Form No. 06 to the registration agency or its branch (es);

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;

2. To provide the guidance, direction, organize the improvement of professional ability, specialty for the registration officer;

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.

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 Branch Manager, but the claimer does not agree, he shall have the right to submit his complaint to the Director of the registration agency or initiate an administrative suitcase at the Court in accordance with applicable laws.

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

2.1 In the area of registration of the finance leasing assets, citizens shall have right to denunciate against the competent agency, organization, individuals of the illegal behaviors of the registration officers, civil servants of the registration agency on finance leasing assets of the Ministry of Justice that cause damages or threaten to cause damages to their lawful rights, interests or of other persons.

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

1. This Circular shall be effective from 8 March, 2002.

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