Thông tư 22/2010/TT-BTP

CIRCULAR

INSTRUCTIONS ON ONLINE REGISTRATION, PROVISION OF INFORMATION ABOUT GUARANTEED TRANSACTIONS, CONTRACTS, AND NOTIFICATION OF PROPERTY DISTRAINT SERVING ENFORCEMENT OF JUDGMENTS

Pursuant to the Civil Code dated June 14, 2005;

Pursuant to the Law on Electronic Transactions dated November 29, 2005;

Pursuant to the Law on Civil Judgments Enforcement dated November 14, 2008;

Pursuant to Decree No. 65/2005/NĐ-CP dated May 19, 2005 of the Government on the amendments to some articles of Decree No. 16/2001/NĐ-CP dated May 02, 2011 of the Government on the organization and operation of finance lease companies; Pursuant to Decree No. 163/2006/NĐ-CP dated December 29, 2006 of the Government on guaranteed transactions;

Pursuant to the Decree No. 83/2010/NĐ-CP dated July 23, 2010 of the Government on the registration of the guaranteed transactions;

Pursuant to Decree No. 93/2008/NĐ-CP dated August 22, 2008 of the Government on defining the functions, tasks, powers and organizational structure of the Ministry of Justice;

In order to ensure consistency in the application of the regulations on online registration, provision of information about guaranteed transactions, contracts and notification of property distraint serving enforcement of judgments

Chapter 1

GENERAL PROVISIONS

Article 1. Scope

This Circular gives instructions on the first registration, change, cancellation and the provision of information about guaranteed transactions, contracts, notification of property distraint serving the enforcement of the judgments (hereinafter referred to as property distraint) implemented by the online registration system under the management of the National Registration Department of guaranteed transactions, an affiliated body of the Ministry of Justice.

Article 2. Cases in which the guaranteed transactions can be registered online:

1. The guaranteed transactions can be registered online as prescribed in this Circular, including:

a) Collateral;

b) Pledged assets;

d) Deposit and security valuables;

d) Other cases under statutory provisions.

2. The guaranteed property prescribed in Clause 1 of this Article includes:

a) Automobiles, motorcycles and other road vehicles; railway vehicles;

b) Fishing vessels; inland waterway transport;

c) Machinery, equipment, production line, raw materials, fuel, substances, consumer goods and other commodities, precious metals and stones;

d) VND and foreign currencies;

dd) Stocks, bonds, bills of exchange, promissory notes, certificates of deposit, treasury certificates, checks and other valuable papers in the form of monetary and transacted assets, defined by laws,  

e) Property rights arising from copyrights, industrial property and plant variety rights; debt claims and other guarantor’s property rights under any contractual provisions or other legal grounds (except for land use rights, homeownership);

g) Right to the ownership of contributed capital in enterprises;

h) The right to exploit natural resources as well as cover the costs of land reclamation and ground clearance for the fulfillment of civic duties under legal regulations;

i) Revenues, the rights to receive guaranteed asset insurance coverage or other profits generated from the guaranteed property as prescribed in Clause 2 this Article;

k) Other movables as prescribed in Clause 2 Article 174 of the Civil Code

l) Any fixture which is governed by the land registry of centrally-affiliated provinces, cities as well as provincial communes, districts, towns and manucipalities such as: those located in many plots of land (inter-line property); houses and building works made of provisional materials (bamboo, rattan and mud); auxiliary buildings such as garages, kitchens, prefabricated steel buildings, frame buildings, warehouses; wells, drilled wells; rigs; water tanks; courts; fences; poles; power stations; pump stations; electrical power generation and transmission;

Article 3. Cases in which contracts can be registered online

The contracts that can be registered online include:

1. Contracts for deferred payment retaining the ownership of the sellers as prescribed in Clause 2 Article 13 Decree No. 163/2006/NĐ-CP dated December 29, 2006 of the Government on the guaranteed transactions (hereinafter referred to as Decree No. 163/2006/NĐ-CP);

2. Property lease agreements valid for more than 1 year as prescribed in Clause 2 Article 13 in the Decree No. 163/2006/NĐ-CP including: agreements of the aforesaid validity and those that expire within less than 1 year but the contracting parties agree on the extended and overall validity of the lease (including the deadline for this extension) of above 1 year;

3. Finance lease contracts as prescribed in Clause 6 Article 1 Decree No. 65/2005/NĐ-CP dated May 19, 2005 of the Government on the amendments to some Articles of the Decree No. 16/2001/NĐ-CP dated May 02, 2001 of the Government on the organization and operation of Finance lease companies.

4. Contracts for the transfer of the debt claims arising from loan agreements, purchase contracts, property lease agreements, service contracts or from other legal grounds;

5. Other cases under the regulations of the law.

Article 4. Online notification of property distraint

In case a single property prescribed in Clause 2 Article 2 in this Circular is distrained, in addition to the direct communication method, the Enforcer is allowed to notify the property distraint via the online registration system to the clients by post, fax or email.

Article 5. Time for online registration

1. The online registration takes place when the information about the guaranteed transactions, contracts, notification of the property distraint is updated on the Database of the guaranteed transactions

2. In case of change the information due to mistakes in the property distraint or the names of guarantors, property purchasers and lessees, finance lessees and transferers of debt claims (hereinafter referred to as the guarantors)  the numbers of the proof of the legal status of the guarantors, the time for registration is prescribed in point c Clause 2 Article 7 Decree No. 83/2010/NĐ-CP dated July 23, 2010 of the Government on the registration of guaranteed transactions.

3. The time for the online registration prescribed in Clauses 1 and 2 this Article is defined as the time recorded by the online registration system.

Article 6. Provision of accounts for regular clients

1. The clients send the applications for the provision of the online registration accounts (hereinafter referred to as the accounts) to the National Registration Department of guaranteed transactions directly or directly or by post. Each application consists of:

a) A written request for the provision of the online registration account;

b) A copy certified by the People’s Committee of communes of one of these papers: ID card, military ID card, police ID card, certificate of the employee of the police force (if the client is an individual); business registration certificate, certificate of establishment and operation, investment certificate or Decision on establishment (if the client is an organization)

In case the clients send the written requests for the provision of the accounts to the National Registration Department of guaranteed transactions directly, they are required to submit only the copy and present the original of one of the papers prescribed above for comparison.

2. The National Registration Department of guaranteed transactions shall consider, provide the accounts and notify the result to the clients directly, by post or via the online registration system within 1 working day from the receipt of the valid application for the provision of the accounts.

3. In case of changes in the information in the papers prescribed in point b Clause 1 this Article or other information registered for the provision of the accounts, the clients provided with the accounts must register to change the information following the procedure prescribed in this Article.

4. The National Registration Department of guaranteed transactions shall issue Regulations on the provision, management, use of the numbers of regular clients and accounts.

Article 7. Use of accounts

1. The regular clients use the accounts provided by the National Registration Department of guaranteed transactions to register and search for their online information about the guaranteed transactions, contracts, notifications of the property distraint.

2. In case any regular client has not used his or her account for 06 months, the National Registration Department of guaranteed transactions shall block that account. In case a regular client’s account is blocked and (s)he wants to re-use it, (s)he shall send a written request for the re-activation to the National Registration Department of guaranteed transactions by one of the methods prescribed in Clause 1 Article 6 this Circular for that account to be re-activated right in that working day.

3. In case the clients do not pay the fees for the registration, the provision of the information, or the regular client service under the law on fees, the National Registration Department of guaranteed transactions shall block their accounts temporarily. Within 3 months from the block of the accounts, if the regular clients do not pay the fees, the National Registration Department of guaranteed transactions shall officially block the accounts. The blocked accounts shall only be re-activated if the clients pay the fees off.

Article 8. Cases in which online registrations are invalid

The online registrations are invalid if:

1. They are in the case other than those prescribed in Articles 2, 3, 4 in this Circular;

2. They violate the law or social morality.

Article 9. Payment for registration, provision of online information about guaranteed transactions, contracts and distrained property

1. Payment methods for the registration, the provision of the online information about the guaranteed transactions, contracts and distrained property include:

a) Paying the fees directly to one of the Registration Centers for transactions and property, an affiliated body of the National Registration Department of guaranteed transactions under the management of the Ministry of Justice (hereinafter referred to as Registration Centers);

b) Transferring money to the bank account of the Registration Centers;

c) Paying the fees by debit cards or credit cards if accepted by the online registration system;

d) Making payment by standing order and direct debit via State Treasury or the advance deposited into the account of the Registration Center.

According to monthly payment notification, fees for the registration and provision of information shall be paid by standing order and direct debit. The clients must pay the monthly fees for the registration and the provision of information before the 21th of the next month

2. The occasional clients pay the fees for the registration and provision of information by the methods prescribed in points a, b, c Clause 1 this Article.

Article 10. Responsibilities of clients requesting for online registrations

1. The clients requesting for the online registrations (hereinafter referred to as the applicants) must provide the correct information as agreed by related parties on the guaranteed transactions and contracts.

2. The applicants must not provide the registration information violating the regulations of the law or social morality, and must not use the interface of the registration system for illegal purposes.

3. In case the applicants do not abide by the regulations prescribed in Clause 1 and 2 this Article, which results in any possible damages, they must compensate for any losses arising from these illegal acts and face the penalties for administrative violations or criminal prosecutions.

Article 11. Responsibility for the maintenance, safety and security of online registration system

1. The National Registration Department of guaranteed transactions cooperates with the Information technology Department to maintain the operation and ensure the safety of the information of the online registration system under the regulations of the law.

2. In case the online registration system must be suspended for its maintenance, upgradation or other reasons, the National Registration Department of guaranteed transactions must publish the reasons and the anticipated time for the re-operation of the system.

Chapter 2

PROCEDURE FOR THE ONLINE REGISTRATION OF GUARANTEED TRANSACTIONS, CONTRACTS, NOTIFICATION OF PROPERTY DISTRAINT

Article 12. Access to the online registration system for the online registration of guaranteed transactions, contracts, notification of property distraint

1. In case the clients are regular clients, they can use the given accounts to get access to the online registration system.

2. In case the clients are not regular clients, their access to the online registration system shall follow these procedures:

a) If the clients choose the payment methods prescribed in point a or point b in Clause 2 Article 9 in this Circular, they can use the numbers of their payment receipts to get access to the online registration system;

b) If the clients choose the payment method prescribed in point c in Clause 2 Article 9 in this Circular, they can use the numbers of their debit cards or credit cards to get access to the online registration system.

Article 13. Responsibility for provision of registration information, online notification of distraint

Whenever the registration is required for the guaranteed transactions, contracts, notification of the property distraint, the applicant and the enforcer in charge of giving the notification of the property distraint (hereinafter referred to as the enforcer) shall provide the registration information and update the distraint using the form on the interface of the online registration system that suit the requirement for the registration and notification.

The provision of the registration information about the guaranteed transactions, contracts, notification of the property distraint is prescribed in Articles 14 and 15 in this Circular.

Article 14. Provision of information about parties entering into the guaranteed transactions, contracts, enforcers and guarantors

The applicants and the enforcers must give names, the number of the proof of legal status of the parties entering into the guaranteed transactions, contracts and guarantors, according to the following instructions:

1. The information of the guarantors is provided as follows:

a) If the guarantors are Vietnamese, they must correctly provide their full name, the numbers of their ID cards.

b) If the guarantors are foreigners, they must correctly provide their full names and the numbers of their Passports.

c) If the guarantors are stateless persons living in Vietnam, they must correctly provide their full names, the numbers of their Residence cards.

d) If the guarantors are legally-founded organizations in Vietnam and keep business registration certificates or they are foreign investors, they must provide their names and tax codes issued by the tax authorities. If the organizations have no business registration certificate, they must provide their names instead, which are registered under the regulation of the law.

dd) If the guarantors are organizations established and governed by the law of foreign countries, they must provide their names which are registered at the foreign competent authorities. If their registered names are not typed in Latin alphabetic words, they must provide their English transaction names.

2. The information of the obligees, asset sellers, asset lease holders, finance lease holders, receivers of the debt claims, enforcers (hereinafter referred to as the obligees) must include:

a) The obligees’ names;

b) The obligees’ addresses.

Article 15. Property description

1. The applicants and enforcers shall describe the property following the instructions given on the interface of the registration form, the online notifications of the property distraint or send electronic records together with registration forms and written notifications of such distraints

2. In case the property is road vehicles and is not the circulated goods during the manufacturing process or business operation or the property formed in the future, the applicants and enforcers shall exactly describe the identification numbers of such vehicles following the instructions on the interface of the online registration form.

Article 16. Verification of the online registration result of guaranteed transactions, contracts, notification of property distraint

1. The online registration system shall notify the verification of the online registration result of the guaranteed transactions, contracts, notification of property distraint to the applicants and enforcers on the transaction screen.

2. One of the Registration centers shall send one (01) certificate of the online registration result of the guaranteed transactions, contracts, notification of property distraint (with signature and stamp) to any applicants and enforcer when requested directly or by post.

3. In case the applicants request the photocopies of the online registration results of the guaranteed transactions, contacts, notification of property distraint, those must pay the fees for the provision of the photocopies under the regulations of the law, except for any of enforcers’ requests.

4. The certificates or the photocopies of the certificates of the registration result of the guaranteed transactions, contracts, notification of property distraint which is issued by any Registration Center have the same legal value.

Article 17. Change and cancellation of registrations of guaranteed transactions, contracts, notification of property distraint

1. The online registration system shall provide personal codes for the applicants and the enforcers to change or cancel the online registration of the registered guaranteed transactions, contracts and notification of the property distraint. Anyone provided with the personal code must keep it confidential.

2. In case the guaranteed transactions, contracts, notification of the property distraint are registered directly, post, fax or email, the applicants and enforcers have the right to request the Registration Center (where the registrations are granted) to provide personal codes to change or cancel the online registration of the guaranteed transactions, contracts, notification of property distraint.

Article 18. Handling of the invalid online registrations

1. If any registration of the guaranteed transactions, contracts, notification of the property distraint is mentioned in one of the cases prescribed in Article 8 in this Circular, the supervisor of the online registration system shall send a report to the Director of the Registration System to consider a decision on the cancellation of the registration, notification of the distraint.

2. The cancellation of the registration and notification of the distraint must be sent to the applicants and enforcers whose addresses are stored on the Database of the guaranteed transactions by post.

Chapter 3

PROVISION OF INFORMATION VIA ONLINE REGISTRATION SYSTEM

Article 19. Methods of information access via the online registration system

The clients can access to the information about guaranteed transactions, contracts, distrained property via the online registration system by:

1. Freely seeking the information.

2. Asking for the provision of the information certified by the Registration Center to serve as a basis for proving their legal rights and benefits related to movables.

Article 20. Searching criteria for the information via the online registration system

1. The search for information about the guaranteed transactions, contracts, distrained property shall be based on  the proof of legal status of the guarantors:

a) If the guarantors are Vietnamese, their full names and ID card numbers are required.

b) If the guarantors are the legally-founded organizations under Vietnam’s laws and keeps business registration certificates or if they are foreign investors, their tax codes are required.

c) In case the guarantors are foreigners, their full names and passport numbers are required; In case the guarantors are stateless persons who are living in Vietnam, their full names and residence card numbers are required.

d) In case the guarantors are the legally-founded organization under Vietnam laws but keep no business registration certificates, their registered names are required.

dd) In case the guarantors are the organizations established and governed by the laws of foreign countries, their names registered in such foreign authority agencies are required

2. The search for information about the guaranteed transactions, contracts, distraint property relies on the vehicle identification numbers.

3. The search for information about the guaranteed transactions, contracts, distraint property shall refer to their guaranteed transaction registration numbers.

Article 21. Clients’ access to the information via the online registration system

1. All of the clients are allowed to search for the information about the guaranteed transactions, contracts, distraint property stored on the Database of the guaranteed transactions via the online registration system.

2. The information of this kind about the guaranteed transactions, contracts, distrained property shall not be certified by the Registration Center. They are not required to pay fees for such information.

Article 22. Requirement for the provision of the information via the online registration system

1. In case the clients require providing information about the guaranteed transactions, contracts, distraint property, the Registration Center shall send certified records of the information (with signatures and seals) to such clients directly or by post.

2. The clients must pay fees for requirement for the provision of the information about the guaranteed transactions, contracts, distrained property prescribed in Clause 1 this Article under the regulations of the law.

Chapter IV

IMPLEMENTATION CLAUSES

Article 23. Effect

This Circular takes effect from March 01, 2011.

Article 24. Transitional clauses

The clients shall be provided with the accounts and recognized as regular clients at the same time. The National Registration Department shall issue Regulations on the issuance, management, use of the regular customer codes and accounts.

In case the clients have been recognized as regular clients before the effective date of this Circular, the National Registration Department of guaranteed transactions shall check, issue and notify the accounts to the clients to obtain the online registration of guaranteed transactions, contracts, notification of property distraint.

2. In case the clients need to change or cancel their registrations of guaranteed transactions, contracts, notification of property distraint before the effective date of this Circular, they can register either directly, by post, fax, email or the online registration system as prescribed in this Circular.

3. Procedures for the notification of the property distraint and the search for the information of the distrained property of the bailiffs in the provinces selected for their experimental operations are prescribed in this Circular.

Article 25. Implementation Responsibility

1. The National Registration Department of guaranteed transaction shall provide instructions on the online registration, provision of information about guaranteed transactions, contracts and notification of property distraint under the regulations of this Circular.

2. Any difficulty or obstacle that arises during the implementation of this Circular should be reported to the Ministry of Justice for consideration./.