Nghị định 22/2015/ND-CP

Decree No. 22/2015/NĐ-CP dated February 16, 2015, providing detailed regulations on implementation of several articles of the bankruptcy Law for the asset management officer, asset management and liquidation practicing

Nội dung toàn văn Decree No. 22/2015/NĐ-CP detailed regulations of the bankruptcy Law for the asset management officer


THE GOVERNMENT
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THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 22/2015/NĐ-CP

Hanoi, February 16, 2015

 

DECREE

PROVIDING DETAILED REGULATIONS ON IMPLEMENTATION OF SEVERAL ARTICLES OF THE BANKRUPTCY LAW FOR THE ASSET MANAGEMENT OFFICER, ASSET MANAGEMENT AND LIQUIDATION PRACTICING

Pursuant to the Law on Governmental Organization dated December 25, 2001;

Pursuant to the Bankruptcy Law dated June 19, 2014;

At the request of the Minister of Justice,

The Government hereby promulgate the Decree on providing detailed regulations on implementation of several articles of the Bankruptcy Law on the asset management officer and asset management, liquidation practicing.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of application and governed entities

1. This Decree shall provide detailed regulations on implementation of several articles of the Bankruptcy Law on the asset management officer; asset management and liquidation enterprise; asset management and liquidation practicing; expenses paid the asset management officer, and asset management and liquidation enterprise; and regulatory agency’s management of the asset management officer, and asset management and liquidation enterprise.

2. This Decree shall apply to the asset management officer, and asset management and liquidation enterprise, regulatory agencies in charge of management of the asset management officer, and asset management and liquidation enterprise as well as other organization or individual involved in the asset management and liquidation practicing.

Article 2. Principles of asset management and liquidation practicing

1. Comply with the Constitution and laws.

2. Adhere to the ethical code of the asset management officer.

3. Carry out their professional activities in an independent manner; be honest and unprejudiced; respect transparency.

4. Take legal responsibility for their practicing activities.

Article 3. Prohibited acts for the asset management officer, and asset management and liquidation enterprise

1. Prohibited acts for the asset management officer:

a) Lease, lend, or let other organizations or individuals use their own practicing certificate for the purpose of practicing asset management and liquidation profession;

b) In addition to expenses paid the asset management officer in accordance with legal regulations, give hints for or receive any sum or material interest from the person involved in bankruptcy proceedings or abuse the asset management officer’s power to gain benefits from individuals, organizations;

c) Abuse their duties and powers to collude with individuals, organizations for the purpose of gaining personal benefits;

Disclose information on the organization, operation of the insolvent enterprise or cooperative that the asset management officer has reached in the process of their practicing, unless otherwise permitted in writing by that enterprise or cooperative or stipulated by laws;

dd) Commit other acts of violation against laws or the ethical code of an asset management officer.

2. Prohibited acts for the asset management and liquidation enterprise:

a) Collude with the insolvent enterprise or cooperative in falsify contents relating to the asset management and liquidation practicing;

b) Hint or receive any sum or material benefits from involved parties in bankruptcies, or abuse their duties or powers to gain benefits from organizations or individuals other than payments that the asset management and liquidation enterprise is entitled to in accordance with laws;

c) Let other individuals or organizations to use their name or enterprise registration certificate for the purpose of practicing the asset management and liquidation profession;

Disclose information on the organization, operation of the insolvent enterprise or cooperative that the asset management and liquidation enterprise has reached in the practicing process, unless otherwise permitted in writing by that enterprise or cooperative or stipulated by laws;

dd) Commit other acts of violation against legal regulations.

Chapter II

ASSET MANAGEMENT OFFICER

Article 4. Grant of the asset management officer’s practicing certificate

1. The persons, as stipulated in Clause 1 Article 12 of the Law on Bankruptcy, who wish to practice asset management and liquidation profession shall file their application for grant of the asset management officer's practicing certificate. The application shall consist of the following documentation:

a) An application form for grant of the asset management officer’s practicing certificate by filling the form No. TP-QTV-01 issued herewith;

b) A copy of the lawyer’s card, if the applicant is a lawyer; a copy of the auditor’s certificate, if the applicant is an auditor; a copy of the bachelor’s degree in law, economy, finance and banking, if the applicant has graduated from the degree program in these academic sectors;

c) Any document to show that the applicant has achieved at least 5 years' experience of their training fields which must be attested by the agency or organization where these bachelor’s degree holders are working;

d) 2 color photos, size 3cm x 4cm.

When necessary, the Ministry of Justice shall require the applicant to submit the criminal record.

2. Foreign lawyers who have obtained the lawyer’s practicing certificate in Vietnam as prescribed in the law on lawyer, or auditors who have the foreign nationality in accordance with legal regulations on audit and wish to practice asset management and liquidation profession, shall file their application for grant of the asset management officer's practicing certificate. The application shall consist of the following documentation:

a) An application form for grant of the asset management officer’s practicing certificate by filling the form No. TP-QTV-02 issued herewith;

b) A copy of the lawyer’s practicing certificate issued by the Ministry of Justice in Vietnam, if the applicant is a foreign lawyer; a copy of the auditor’s certificate issued by the Ministry of Justice, if the applicant is a foreign auditor;

c) A self-declared curriculum vitae;

d) 2 color photos, size 3cm x 4cm.

3. The applicant must send 01 set of documents submitted to apply for grant of the asset management officer’s practicing certificate by post or directly to the Ministry of Justice and pay fee stipulated by laws.

If the applicant submits their documentation to apply for grant of the asset management officer's practicing certificate directly to the Ministry of Justice, the original of the documents stipulated by Point b Clause 1 and Point b Clause 2 of this Article must be shown for the purpose of collation of information.

If the applicant submits their documentation to apply for grant of the asset management officer's practicing certificate to the Ministry of Justice by post, the original of the documents stipulated by Point b Clause 1 and Point b Clause 2 of this Article must be shown upon request.

Within a permitted period of 20 days of receipt of all valid documents, the Ministry of Justice shall be responsible for granting the asset management officer’s practicing certificate to the applicant according to the form No. TP-QTV-08 issued herewith; in case of refusal, reasons for such refusal must be stated in a written notification.

The applicant who has been refused the grant of the asset management officer’s practicing certificate shall have the right to file a petition or bring a lawsuit in accordance with laws.

4. The persons that fall in one of the following circumstances shall be refused the grant of the asset management officer's practicing certificate:

a) The applicant is ineligible for the asset management officer’s practicing in accordance with regulations laid down at Point a, b Clause 2 Article 12 of the Law on Bankruptcy;

b) Other cases stipulated in Article 14 of the Law on Bankruptcy.

Article 5. Reissuance of the asset management officer’s practicing certificate

1. The persons who have been issued with the asset management officer’s practicing certificate, if their practicing certificate has been lost or damaged to the extent that it can not be used any more, shall be considered, reissued with another practicing certificate.

2. The application for reissuance of the asset management officer’s practicing certificate shall be composed of the followings:

a) An application form for reissuance of the asset management officer’s practicing certificate by completing the form No. TP-QTV-03 issued herewith;

b) 2 color photos, size 3cm x 4cm.

3. The applicant must send 01 set of documents submitted to apply for reissuance of the asset management officer’s practicing certificate by post or directly to the Ministry of Justice, and pay reissuance fee stipulated by laws. Within a permitted period of 15 days of receipt of all valid documents, the Ministry of Justice shall be responsible for reissuing the asset management officer’s practicing certificate to the applicant.

Article 6. Revocation of the asset management officer’s practicing certificate

1. The Minister of Justice shall take a decision to revoke the asset management officer's practicing certificate if the holder of the practicing certificate falls into one of the cases stipulated by Clause 1 Article 15 of the Law on Bankruptcy.

2. Whenever discovering or having reasonable grounds that the holder of the asset management officer’s practicing certificate falls into one of the cases stipulated by Clause 1 Article 15 of the Law on Bankruptcy, individuals, agencies or organizations shall request the Minister of Justice in writing to revoke this person’s practicing certificate.

3. Within a permitted period of 30 days of receipt of the written request for such revocation, the Minister of Justice shall consider and take a decision to revoke the asset management officer's practicing certificate. The person whose practicing certificate has been revoked shall have the right to file a petition or bring a lawsuit in accordance with laws.

The decision on revocation of the asset management officer’s practicing certificate shall be sent to the holder of revoked practicing certificate, the People’s Court, the Department of Justice in a centrally-affiliated city or province where an asset management officer working as an individual registers the transaction address, or an asset management and liquidation enterprise employing the holder of revoked practicing certificate locates its head office, and shall be updated on the information website of the Ministry of Justice.

4. The asset management officer whose practicing certificate is revoked shall be removed from the list of the asset management officers, or asset management and liquidation enterprises.

Article 7. Obligations that the asset management officer must fulfill to perform their practicing activities

1. Comply with the principles of asset management and liquidation practice as prescribed in Article 2 hereof.

2. Bear responsibility for their practices in accordance with legal regulations on bankruptcy.

3. Sign the report and document on the outcome of the exercise of their powers and assumption of their obligations in accordance with legal regulations on bankruptcy.

4. Purchase the insurance against the professional responsibility in accordance with laws if the asset management officer is working as an individual.

5. Report to the Department of Justice located in a centrally-affiliated city or province where asset management officer’s practicing activities are registered under the instruction of the Ministry of Justice.

6. Fulfill other obligations in accordance with the Bankruptcy Law and relevant laws.

Chapter III

ASSET MANAGEMENT AND LIQUIDATION PRACTICE

Article 8. Form of the asset management officer’s practicing activity

1. Forms of the asset management officer’s practicing activity shall include:

a) Perform practicing activities as an individual asset management officer;

b) Perform asset management practicing activities as an asset management and liquidation enterprise by establishing or getting involved in establishing or working under the employment contract for an asset management and liquidation enterprise.

2. At the same period of time, the holder of the asset management officer’s practicing certificate shall only be entitled to register the practicing of the asset management and liquidation at an asset management and liquidation enterprise, or register the practicing of asset management and liquidation as an individual.

3. Asset management officer who is working as an individual must complete the tax payment registration in accordance with legal regulations on taxation.

Article 9. Registration of asset management and liquidation practicing as an individual

1. The holder of the asset management officer’s practicing certificate is required to register their practicing of asset management and liquidation as an individual at the Department of Justice located in a centrally-affiliated city or province where this individual is permanently resided.

The person who registers the asset management and liquidation practicing as an individual must have the transaction address.

2. The applicant must send 01 set of documents submitted to apply for registration of the asset management officer’s practicing as an individual by post or directly to the Ministry of Justice and pay registration fee stipulated by laws. The application shall consist of the following documentation:

a) A registration form for the practicing of asset management and liquidation as an individual by completing the form No. TP-QTV-04 issued herewith;

b) A copy of the asset management officer’s practicing certificate.

When necessary, the Department of Justice shall request the applicant for registration of asset management and liquidation practicing as an individual to submit the criminal record.

If the applicant submits their documentation to apply for registration of the asset management and liquidation practicing as an individual directly to the Ministry of Justice, the original of the documents stipulated by Point b Clause 2 of this Article must be shown for the purpose of collation of information.

If the applicant submits their documentation to apply for registration of the asset management and liquidation practicing as an individual to the Ministry of Justice by post, the original of the documents stipulated by Point b Clause 2 of this Article must be shown upon request.

3. Within a permitted period of 07 working days of receipt of all valid documents, the Ministry of Justice shall decide to record the name of the applicant for such registration into the list of the asset management officers, asset management and liquidation enterprises, and notify that applicant in writing; in case of refusal, reasons for such refusal must be clearly stated as well. The applicant who has been refused the registration of the asset management and liquidation as an individual shall have the right to file a petition or bring a lawsuit in accordance with laws.

Within a permitted period of 03 working days from the date on which the decision to record the name of the applicant for such registration into the list of the asset management officers, or asset management and liquidation enterprises is made, the Ministry of Justice shall send the list of the asset management officers, or asset management and liquidation enterprises to the Ministry of Justice.

The document showing the recording of the applicant’s names into the list of asset management officers, or asset management and liquidation enterprises shall serve as the written evidence of the eligibility of the asset management officer for asset management and liquidation practicing as an individual.

4. The applicant for such registration shall be permitted to practice the asset management and liquidation from the date on which the Ministry of Justice decides to record their name into the list of the asset management officers, or the asset management and liquidation enterprises. The asset management officer shall be permitted to practice their asset management and liquidation profession throughout Vietnam.

If an asset management officer terminates their asset management and liquidation practicing as an individual, a written notification of this termination must be sent to the Ministry of Justice. The Department of Justice shall decide to remove the name of such asset management officer from the list of the asset management officers, or the asset management and liquidation enterprises and report to the Ministry of Justice.

5. The following persons shall not be allowed to register the practicing of asset management and liquidation as an individual:

a) Fail to meet requirements stipulated by Article 12 of the Law on Bankruptcy;

b) Fall in one of the cases stipulated by Article 14 of the Law on Bankruptcy;

c) Be subjected to a ban on the practicing of asset management and liquidation profession according to the court judgement or decision that has taken effect.

6. Lawyers and auditors shall be permitted to simultaneously practice the asset management and liquidation in accordance with the law on bankruptcy.

Article 10. Asset management and liquidation enterprise

1. The asset management and liquidation enterprise shall be established and operated in the manner stipulated by Clause 1 Article 13 of the Law on Bankruptcy. Establishment, organization, management and operation of an asset management and liquidation enterprise shall conform to legal regulations on enterprises and the legislation on bankruptcy.

2. Branches or representative offices of an asset management and liquidation enterprise shall be established and operated in compliance with legal regulations on enterprises.

Asset management and liquidation enterprise shall assign a minimum of 01 asset management officer who are employed by the enterprise to work at these branches.

Representative offices of the asset management and liquidation enterprise shall not be permitted to practice the asset management and liquidation profession.

Within a permitted period of 07 working days from the date on which the Certificate of branch or representative office registration, the asset management and liquidation enterprise shall send a written notification to the Department of Justice of a centrally-affiliated city or province where this enterprise's head office is located; in case the enterprise establishes their branches or representative offices at a centrally-affiliated city or province different from the one where the enterprise’s head office is located, the enterprise must send a written notification to the Department of Justice of a city or province where these branches or representative offices are located.

3. The Department of Justice shall compile the list of branches or representative offices of asset management and liquidation enterprises at their localities, and publish the list on the information portal of the Department of Justice as well as send a report to the Ministry of Justice.

Article 11. Partner of a partnership firm, owner of a private enterprise of asset management and liquidation

1. The partner of a partnership firm of asset management and liquidation being an asset management officer shall not be permitted to simultaneously work as the owner of a private enterprise or the partner of other partnership firm of asset management and liquidation practicing in order to serve the purpose of so practicing, except when other partners of a partnership firm give their consent.

2. Whenever there is any change to the partner of a partnership firm as stipulated by Point a Clause 2 Article 13 of the Law on Bankruptcy, or any change to the owner of a private enterprise as stipulated by Point b Clause 2 Article 13 of the Law on Bankruptcy, not later than 10 days after such change takes place, this partnership firm or private enterprise is required to apply for registration of asset management and liquidation practicing for its new partners or owner. Process and procedure for such registration shall adhere to regulations laid down in Clause 2, 3 Article 12 hereof. The new partner of a partnership firm or the new owner of a private enterprise must comply with regulations laid down in Clause 1 of this Article.

Article 12. Registration of asset management and liquidate practicing for an asset management and liquidation enterprise

1. The asset management and liquidation enterprise that has conformed to requirements stipulated by Clause 2 Article 13 of the Law on Bankruptcy, after being granted the enterprise registration certificate, must register the asset management and liquidation practicing with the Department of Justice of a centrally-affiliated city or province where this enterprise's head office is located.

The asset management and liquidation enterprise shall register the asset management and liquidation practicing for asset management officers who are employed to work for this enterprise. Those who fall in the cases stipulated by Clause 5 Article 9 hereof shall not be allowed to obtain the registration of asset management and liquidation practicing to be eligible to work for an asset management and liquidation enterprise.

2. The asset management and liquidation enterprise shall send 01 set of documents that must be submitted to apply for registration of asset management and liquidation practicing by post or directly to the Department of Justice and pay the registration fee as prescribed by legal regulations. The application shall consist of the following documents:

a) An application form for registration of asset management and liquidation practicing by completing the form No. TP-QTV-05 enclosed herewith;

b) A copy of the enterprise registration certificate;

c) A copy of the practicing certificate of the asset management officer working for a partnership firm, or the asset management officer’s practicing certificate held by the General Director or Director of a partnership firm stipulated by Point a Clause 2 Article 13 of the Law on Bankruptcy; a copy of the asset management officer’s practicing certificate held by other persons who practice their asset management and liquidation profession in a partnership firm (if any); a copy of the asset management officer’s practicing certificate held by the owner of a private enterprise stipulated by Point b Clause 2 Article 13 of the Law on Bankruptcy; a copy of the asset management officer’s practicing certificate held by other persons who practice their asset management and liquidation profession in a private enterprise (if any).

When necessary, the Department of Justice shall request the enterprise that applies for registration of asset management and liquidation practicing to submit the criminal record of the persons stipulated by Point c Clause 2 of this Article.

If the enterprise sends documents to apply for registration of asset management and liquidation practicing directly to the Department of Justice, the original of the documents stipulated by Point b, c Clause 2 of this Article must be shown for the purpose of collation of information.

If the enterprise sends documents to apply for registration of asset management and liquidation practicing to the Department of Justice by post, the original of the documents stipulated by Point b, c Clause 2 of this Article must be shown upon request.

3. Within a permitted period of 07 working days of receipt of all valid documents, the Department of Justice shall decide to record the applicant's name into the list of the asset management officers, or the asset management and liquidation enterprises, and send a written notification to the applicant; in case of refusal, reasons for this refusal must be clearly stated in a written notification. The enterprise that has been refused such registration shall have the right to file a petition or bring a lawsuit in accordance with laws.

Within a permitted period of 03 working days from the date on which the decision to record the enterprise’s name into the list of the asset management officers, or asset management and liquidation enterprises, the Department of Justice shall the list of the asset management officers, or asset management and liquidation enterprises to the Ministry of Justice.

4. The asset management and liquidation enterprise shall be permitted to practice their asset management and liquidation profession from the date on which the Ministry of Justice decides to record their name into the list of the asset management officers, or the asset management and liquidation enterprises. Where asset management and liquidation enterprise terminates their operations or asset management and liquidation practicing, a written notification of this termination must be sent to the Department of Justice. The Department of Justice shall decide to remove that enterprise’s name from the list of the asset management officers, or the asset management and liquidation enterprises, and report to the Ministry of Justice.

Article 13. Obligations of the asset management and liquidation enterprise during their practicing activities

1. Manage the asset management officer who works for this enterprise.

2. Take legal responsibility for their professional activities performed by the asset management officer assigned by this enterprise as prescribed in Clause 2, 3 Article 16 hereof.

3. Hold the legal representative of the asset management and liquidation enterprise responsible for considering and signing documents sent by the asset management officer working for such enterprise.

4. Purchase the insurance against the professional responsibility for the asset management officer working for such enterprise in accordance with laws.

5. Report to the Department of Justice of a central-affiliated city or province where the practicing of asset management and liquidation profession is registered under the instruction of the Ministry of Justice.

6. Take on other obligations in accordance with laws.

Article 14. Compilation and announcement of the list of asset management officers, or asset management and liquidation enterprises

1. The Department of Justice shall compile and announce the list of local asset management officers, or asset management and liquidation enterprises by completing the form No. TP-QTV-06 enclosed herewith. The list of these asset management officers, or asset management and liquidation enterprises shall be publicized on the electronic information portal of the Department of Justice, and report to the Ministry of Justice.

2. The Ministry of Justice shall compile and announce the list of nationwide asset management officers, or asset management and liquidation enterprises by completing the form No. TP-QTV-07 enclosed herewith. The list of these asset management officers, or asset management and liquidation enterprises shall be publicized on the electronic information portal of the Ministry of Justice.

Article 15. Change to the information about registration of asset management and liquidation practicing of the asset management officer, or asset management and liquidation enterprise

1. Whenever there is any change to the transaction address enclosed in the application for registration of asset management and liquidation practicing, within a permitted period of 07 days from the date of such change, the asset management office as an individual shall send a written request to adjust the information about registration of asset management and liquidation practicing by post or directly to the Department of Justice of a centrally-affiliated city or province where that asset management officer has registered his practicing of asset management and liquidation profession.

Within a permitted period of 03 working days of receipt of such written request from the asset management officer, the Department of Justice shall proceed to change information about the transaction address of the asset management officer specified in the list of the asset management officers, or asset management and liquidation enterprises.

2. Whenever there is any change to the name, address of the head office, representative office, branch, legal representative, list of asset management officers who work for an asset management and liquidation enterprise, within a permitted period of 07 working days from the date on which the documentation submitted to apply for the enterprise registration is supplemented in accordance with the legislation on enterprises, the asset management and liquidation enterprise shall send a written request for adjustment to the information about registration of asset management and liquidation practicing by post or directly to the Department of Justice of a centrally-affiliated city or province where such enterprise has registered their practicing of asset management and liquidation profession.

Within a permitted period of 03 working days of receipt of such written request from the enterprise, the Department of Justice shall proceed to change information about the name, address of head office, representative office, branch, legal representative, list of asset management officers who work for an asset management and liquidation enterprise, written in the list of the asset management officers, or asset management and liquidation enterprises.

If the asset management and liquidation enterprise employs more asset management officers to work for them, they are required to apply for the registration of these additional persons’ practicing. Process and procedure for registration of such additional persons in the list of the asset management officers working for such enterprise shall be governed by the regulations laid down in Clause 2, 3 Article 12 hereof.

3. Within a permitted period of 03 working days from the date of change to the information about registration of asset management and liquidation practicing stipulated by Clause 1 and 2 of this Article, the Department of Justice shall send a report on such change to the Ministry of Justice.

Article 16. Notification of participation in a bankruptcy received from the asset management officer, or asset management and liquidation enterprise

1. Within a permitted period of 07 working days of receipt of the written appointment made by the bankruptcy judge, the asset management officer working as an individual shall send a written notification of participation in a bankruptcy to the judge in which the name, number, issuance date of the asset management officer’s practicing certificate must be clearly provided; in the event of refusing to participate in that bankruptcy, the asset management officer must send out a written notification of such refusal.

2. Within a permitted period of 07 working days of receipt of the written appointment made by the bankruptcy judge, the asset management and liquidation enterprise shall send a written notification of assigning their asset management officer to participate in a bankruptcy to the judge in which the name, number, issuance date of the asset management officer’s practicing certificate held by one or some assigned asset management officer(s) must be clearly provided; in the event of refusing to participate in that bankruptcy, the enterprise must send out a written notification of such refusal.

3. In case the asset management officer assigned by the asset management and liquidation enterprise under the provision of Clause 2 of this Article has been subjected to a temporary suspension from the practicing of asset management and liquidation profession under the provision of Article 20 hereof, within a permitted period of 03 working days from the date on which the assigned asset management officer’s practicing is temporarily ceased, the asset management and liquidation enterprise shall appoint another asset management officer working for this enterprise as a replacement.

If the asset management and liquidation enterprise fails to appoint another asset management officer as a replacement, the written notification of such failure must be sent to the bankruptcy judge to proceed to appoint another asset management officer or asset management and liquidation enterprise as a replacement.

Article 17. Accountability of the asset management officer or asset management and liquidation enterprise for reporting to the executor; proposed replacement of the asset management officer or asset management and liquidation enterprise

1. When carrying out the asset valuation according to Article 122 of the Law on Bankruptcy, and the asset sale according to Article 124 of the Law on Bankruptcy, the asset management officer or asset management and liquidation enterprise shall report to the executor in the following circumstances:

a) Selecting the asset valuation organization or asset auction organization to enter into the contract to valuate or auction assets;

b) Replacing the asset valuation organization or asset auction organization;

c) Failing to select the asset valuation organization or asset auction organization;

d) Failing to have assets auctioned.

The reporting form shall be governed under the provisions of Clause 2 Article 49 of the Law on Bankruptcy.

2. When receiving the report on selection and replacement of the asset valuation organization from the asset management officer, or asset management and liquidation enterprise as prescribed at Point a, b Clause 1 of this Article, in the event of discovering that the asset management officer or asset management and liquidation enterprise is in breach of regulations laid down in the legislation on bankruptcy or asset valuation which results in the erroneous outcome of asset valuation, the executor shall request the asset management officer or asset management and liquidation enterprise to carry out the asset re-valuation, except when the asset management officer or asset management and liquidation enterprise have been replaced under the provision of Clause 1 and 2 Article 18 hereof.

Within a permitted period of 03 working days of receipt of the report from the asset management officer or asset management and liquidation enterprise under the provision of Point c Clause 1 of this Article, the executor shall take a decision to select the asset valuation or auction organization.

Within a permitted period of 03 working days of receipt of the report from the asset management officer or asset management and liquidation enterprise under the provision of Point d Clause 1 of this Article, the executor shall make a decision on the asset liquidation.

3. In the event of discovering that the asset management officer or asset management and liquidation enterprise may commit any violation against the rights and obligations as stipulated by the legislation on bankruptcy, the ethical code of an asset management officer, the executor shall request the judge to replace that asset management officer or asset management and liquidation enterprise.

Article 18. Replacement of the asset management officer or asset management and liquidation enterprise

1. The asset management officer or asset management and liquidation enterprise may be replaced under the judge’s decision if one of the cases stipulated by Clause 1 Article 46 of the Law on Bankruptcy occurs.

2. The asset management officer or asset management and liquidation enterprise shall be replaced under the judge’s decision if they are subjected to the temporary suspension from their practicing of asset management and liquidation profession under the provisions of Article 20 hereof.

3. If the asset management officer or asset management and liquidation enterprise is replaced under the provisions of Clause 1 of this Article, the repayment of advance sum and expenses to the asset management officer, or asset management and liquidation enterprises, or work handover shall be governed by regulations laid down in Clause 6, 7 and 8 Article 46 of the Law on Bankruptcy.

If the asset management officer or asset management and liquidation enterprise is replaced under the provisions of Clause 2 of this Article, the asset management officer, or asset management and liquidation enterprises, shall repay the entire advance sum paid for expenses of the asset management officer or asset management and liquidation enterprise. The asset management officer or asset management and liquidation enterprise shall be paid expenses in proportion to the part of work that they have completed. The asset management officer or asset management and liquidation enterprise shall carry out the work handover under the provisions of Clause 7 and 8 Article 46 of the Law on Bankruptcy.

Article 19. Circumstances under which the asset management officer or asset management and liquidation enterprise must refuse to perform asset management and liquidation activities

The asset management officer or asset management and liquidation enterprise must refuse to perform asset management and liquidation activities in the following cases:

1. They have a business associate with insolvent enterprises or cooperatives in accordance with the legislation on enterprises.

2. There are sufficient grounds that the bankruptcy judge, civil judgement enforcement agency has made the request that infringes upon laws and the principles of asset management and liquidation practicing, or is not conformable to the ethical code of an asset management officer.

3. Fall in other cases stipulated by laws.

Article 20. Temporary suspension from asset management and liquidation practicing, applicable to the asset management officer or asset management and liquidation enterprise

1. The asset management officer shall be temporary suspended from their practicing activities if they fall in one of the following cases:

a) They are facing a criminal prosecution;

b) They are subjected to penalties for their administrative violations;

c) They are the lawyer of whom the right to use the lawyer's practicing certificate has been withheld under the provisions of the legislation on handling of administrative violations in the field of justice or has been disciplined in the form of temporary suspension from eligibility to join the bar association under the provisions of the legislation on lawyers;

d) They are the auditor of whom the right to use the auditor’s practicing registration certificate has been withheld, or has been suspended from their audit practicing under the provisions of the legislation on handling of administrative violations in the field of independent audit; they are the auditor of whom the right to use the auditor’s practicing certificate has been withheld in accordance with laws.

2. The asset management and liquidation enterprise shall be suspended from their practicing of asset management and liquidation profession if they fall in the following cases:

a) The partnership firm has changed its partners without conformity to the requirements stipulated by Point a Clause 2 Article 13 of the Law on Bankruptcy; the private enterprise has changed its owner without conformity to the requirements stipulated at Point b Clause 2 Article 13 of the Law on Bankruptcy;

b) The partnership firm’s partner has been temporarily suspended from their practicing of asset management and liquidation profession under the provisions of Clause 1 of this Article, which results in that partnership firm's failure to conform to the requirements stipulated at Point a Clause 2 Article 13 of the Law on Bankruptcy; the private enterprise’s owner has been temporarily suspended from their practicing of asset management and liquidation profession under the provisions of Clause 1 of this Article, which results in the private enterprise's failure to conform to the requirements stipulated at Point b Clause 2 Article 13 of the Law on Bankruptcy.

3. The period of temporary suspension from the practicing of asset management and liquidation profession, the case stipulated at Point a, b Clause 1 and Clause 2 of this Article occurs, does not exceed 12 months. Where the aforesaid suspension period has expired but reasons for suspension from the practicing of asset management and liquidation profession still persist, the period of temporary suspension shall be extended for less than 12 months per each extension.

The period of temporary suspension from the practicing of asset management and liquidation profession, if the case stipulated by Point c Clause 1 of this Article occurs, shall be governed under the decision on penalties for administrative violations made by competent authorities or the decision on disciplinary penalties granted by the executive board of the bar association.

The period of temporary suspension from the practicing of asset management and liquidation profession, if the case stipulated by Point dd Clause 1 of this Article occurs, shall be governed under the decision on penalties for administrative violations granted by competent authorities.

4. The temporary suspension from the practicing of asset management and liquidation profession for the asset management officer or asset management and liquidation enterprise shall be prematurely annulled in the following cases:

a) There is a decision on investigation, case suspension, or the court verdict of not guilty that takes effect to the asset management officer stipulated at Point a Clause 1 of this Article;

b) The asset management officer is not subjected to administrative penalties under the provisions of the legislation on penalties for administrative violations stipulated by Point b Clause 1 of this Article;

c) The partnership firm which has met the requirements stipulated by Point a Clause 2 Article 13 of the Law on Bankruptcy; the private enterprise which has conformed to the requirements stipulated by Point b Clause 2 Article 13 of the Law on Bankruptcy, is governed by Clause 2 of this Article.

5. The Department of Justice shall be vested with the authority to temporarily cease, renew and annul the temporary suspension from the practicing of asset management and liquidation profession of the asset management officer or asset management and liquidation enterprise.

6. The decision to temporarily cease, renew and annul the temporary suspension from the practicing of asset management and liquidation profession shall be sent to the asset management officer, asset management and liquidation enterprise, People’s Court of a centrally-affiliated city or province where the asset management officer working as an individual registers their transaction address, or the asset management and liquidation enterprise employing the temporarily-suspended asset management officer locates its head office, to the Ministry of Justice, and shall be published on the electronic information portal of the Department of Justice.

Article 21. Expenses of the asset management officer or asset management and liquidation enterprise

1. Expenses paid to the asset management officer or asset management and liquidation enterprise shall derive from the value of assets of the insolvent enterprise and cooperative. Expenses paid to the asset management officer or asset management and liquidation enterprise shall be inclusive of remuneration paid to the asset management officer or asset management and liquidation enterprise as well as other expenses.

2. Such remuneration shall be calculated with reference to the following factors:

a) Time that the asset management officer has spent performing their assigned tasks;

b) Effort that the asset management officer has made to perform their assigned tasks;

c) Outcome of the asset management officer’s task performance.

3. Such remuneration shall be calculated according to one or several method(s) as follows:

a) Working hours of the asset management officer;

b) Lump-sum remuneration amount;

c) Remuneration percentage calculated by the percentage of total asset value of the enterprise or cooperative declaring bankruptcy gained after liquidation.

4. The remuneration amount shall be specified as follows:

a) If the People’s Court takes a decision to cease the bankruptcy procedures under the provisions of Article 86 of the Law on Bankruptcy, the remuneration amount shall be agreed upon between the bankruptcy judge and the asset management officer or asset management and liquidation enterprise on the basis of considering and applying regulations laid down in Clause 2 and the methods stipulated by Clause 3 of this Article;

b) If the enterprise or cooperative has been declared bankrupt under the provisions of Clause 3 Article 80, Clause 4 Article 83, and Clause 7 Article 91 of the Law on Bankruptcy, the remuneration amount shall be determined as follows:

No.

Total asset value gained after liquidation

Remuneration amount

1

Below VND 100 million

5% of total asset value gained after liquidation

2

From VND 100 million to VND 500 million

5-month base salary in accordance with the legislation on the base salary paid to cadres, officials or public servants and armed forces + 4% of asset value portion gained after liquidation which exceeds VND 100 million

3

From VND 500 million to VND 1 billion

20-month base salary in accordance with the legislation on the base salary paid to cadres, officials or public servants and armed forces + 3% of asset value portion gained after liquidation which exceeds VND 500 million

4

From VND 1 billion to VND 10 billion

36-month base salary in accordance with the legislation on the base salary paid to cadres, officials or public servants and armed forces + 2% of asset value portion gained after liquidation which exceeds VND 1 billion

5

From VND 10 billion to VND 50 billion

The remuneration amount paid for the total asset value gained after liquidation which equals VND 10 billion shall be determined according to the No.4 of this schedule + 0,5% of asset value portion gained after liquidation which exceeds VND 10 billion

6

From above VND 50 billion

The remuneration amount paid for the total asset value gained after liquidation which equals VND 50 billion shall be determined according to the No.5 of this schedule + 0,3% of asset value portion gained after liquidation which exceeds VND 50 billion.

c) With regard to the enterprise or cooperative that has been declared bankrupt according under the provisions of Point b or Point Circular Clause 1 Article 95 of the Law on Bankruptcy, the remuneration shall be inclusive of the remuneration amounts identified for specific cases stipulated by Point b Clause 4 of this Article plus the remuneration paid for the supervision of business activities while the insolvent enterprise or cooperative implements the business recovery plan. The remuneration paid for the supervision of business operations shall be agreed upon between the judge and the asset management officer, or asset management and liquidation enterprise with reference to regulations laid down in Clause 2 and the methods stipulated by Clause 3 of this Article;

d) With regard to the enterprise or cooperative that falls in the case in which the business recovery plan stipulated by Point a Clause 1 Article 95 of the Law on Bankruptcy has been already implemented, the remuneration amount shall be agreed upon between the bankruptcy judge and the asset management officer or asset management and liquidation enterprise with reference to regulations laid down in Clause 2 and the methods stipulated by Clause 3 of this Article.

5. d) If the conference between the creditor and the asset management officer or asset management and liquidation enterprise has reached another agreement on the remuneration amount stipulated by Clause 4 of this Article, the remuneration amount shall be governed by that agreement.

6. If the credit institution has been declared bankrupt under the provisions of Chapter VIII of the Law on Bankruptcy, the remuneration paid to the asset management officer or asset management and liquidation enterprise shall be defined under the provisions of Point a, Point b Clause 4 of this Article.

7. Other expenses paid to the asset management officer or asset management and liquidation enterprise shall be inclusive of travel and accommodation costs and other relevant expenses incurred from asset management and liquidation operations. The payment of these other expenses to the asset management officer or asset management and liquidation enterprise shall be governed by applicable laws.

8. The bankruptcy judge shall take into account specific cases in order to decide the advance sum paid to the asset management officer or asset management and liquidation enterprise. The asset management officer or asset management and liquidation enterprise shall receive the advance sum to make their payment under the provision of applicable laws on finance and accounting.

Chapter IV

STATE MANAGEMENT OF THE ASSET MANAGEMENT OFFICER OR ASSET MANAGEMENT AND LIQUIDATION ENTERPRISE

Article 22. Responsibilities of the Ministry of Justice

The Ministry of Justice is the agency that assists the Government in carrying out the consistent state management of the asset management officer or asset management and liquidation enterprise as well as the practicing of asset management and liquidation profession across the nation. They shall assume the following duties and powers:

1. Formulate and request competent authorities to issue or issue within their jurisdiction documents providing detailed regulations and guidance on implementation of the law on the asset management officer, or asset management and liquidation enterprise, and the practicing of asset management and liquidation profession.

2. Issue, revoke and reissue the asset management officer’s practicing certificate.

3. Introduce the ethical code of the asset management officer, document forms and documents in the field of asset management and liquidation.

4. Compile, announce and manage the list of the asset management officers, or asset management and liquidation enterprises across the nation; set up the database of the asset management officers, or asset management and liquidation enterprises.

5. Examine and inspect the practicing of asset management and liquidation profession.

6. Take measures to support the development of asset management and liquidation career.

7. Build an international relation concerning the asset management officer, and asset management and liquidation practicing.

8. Handle complaints or denunciations as well as impose penalties for violations against regulations on the asset management and liquidation practicing.

9. Assume other duties and powers as stipulated by laws.

Article 23. Responsibilities of Ministries and ministerial-level agencies

1. Ministries and ministerial-level agencies, within their assigned duties or delegated powers, shall be responsible for collaborating with the Ministry of Justice in state management of the asset management officer, or asset management and liquidation enterprise as well as asset management and liquidation practicing.

2. The Minister of Finance shall stipulate the collection, payment, management and use of the fee for issuance or reissuance of the asset management officer's practicing certificate; the fee for registration of the asset management and liquidation practicing.

Article 24. Responsibilities of the People’s Committee of a centrally-affiliated city or province

1. The People’s Committee of a centrally-affiliated city or province shall carry out the state management of the asset management officer, or asset management and liquidation enterprise as well as asset management and liquidation practicing at their localities. They shall assume the following duties and powers:

a) Carry out the registration of asset management and liquidation practicing, and monitor the asset management officer or asset management and liquidation enterprise at their localities;

b) Examine, inspect and handle violations against regulations on the asset management officer, or asset management and liquidation enterprise, and the practicing of asset management and liquidation profession within their jurisdiction and throughout their localities;

c) Handle complaints or denunciations concerning the asset management officer or asset management and liquidation enterprise, and asset management and liquidation practicing activities within their jurisdiction;

d) Make an annual report to the Ministry of Justice on the asset management officer, asset management and liquidation enterprise as well as asset management and liquidation practicing activities at their localities;

dd) Take measures to support the development of asset management and liquidation career at their localities;

e) Assume other duties and powers as stipulated by laws.

2. The Department of Justice of a centrally-affiliated city or province shall carry out the state management of the asset management officer, or asset management and liquidation enterprise as well as asset management and liquidation practicing at their localities. They shall also assume the following duties and powers:

a) Carry out the practicing registration and announce the list of the asset management officers, asset management and liquidation enterprises at their localities;

b) Temporarily cease, renew or annul the temporary suspension from the practicing of asset management and liquidation profession for the asset management officer, asset management and liquidation enterprise; remove the name of the asset management officer, asset management and liquidation enterprise from the list of the asset management officers or asset management and liquidation enterprises;

c) Review or make a statistical or data report on the asset management officer, asset management and liquidation enterprise as well as the practicing of asset management and liquidation profession at their localities; review and discover any case in which the practicing certificate of the local asset management officer is revoked, and request the Minister of Justice to revoke the asset management officer's practicing certificate in accordance with laws;

d) Examine, inspect and handle violations against regulations on the asset management officer, or asset management and liquidation enterprise, and the practicing of asset management and liquidation profession within their jurisdiction and throughout their localities;

dd) Handle complaints or denunciations concerning the asset management officer or asset management and liquidation enterprise, and asset management and liquidation practicing activities within their jurisdiction;

e) Periodically report to the People’s Committee of a centrally-affiliated city or province, the Ministry of Justice concerning the asset management officer, asset management and liquidation enterprise as well as the practicing of asset management and liquidation profession at their localities on an annual basis and at the request of competent authorities;

g) Assume other duties and powers as stipulated by laws.

Article 25. Handling of violations for acts of infringement upon the legal rights and interests of the asset management officer, asset management and liquidation enterprise

The persons who commit acts of infringement upon the legal rights and interests of the asset management officer, asset management and liquidation enterprise, or hinder the asset management officer, asset management and liquidation enterprise from practicing their asset management and liquidation profession, depending on the nature and severity of these violations subject to disciplinary penalties or facing a criminal prosecution; if any damage or loss is incurred, compensation required by laws must be provided.

Article 26. Handling of violations for the illegal practicing of asset management and liquidation profession of an individual or organization

1. Individuals who are not eligible to practice their asset management and liquidation profession but persist in doing this in any form or shape shall be required to take measures to stop their violations and fined under the provisions of the legislation on penalties for administrative violations, or face a criminal prosecution; if any damage or loss is incurred, compensation required by laws must be provided.

2. Organizations that are not eligible to practice their asset management and liquidation profession but persist in doing this in any form or shape shall be required to take measures to stop their violations and shall be subjected to penalties under the provisions of the legislation on handling of administrative violations; if any damage or loss is incurred, compensation required by laws must be provided.

Article 27. Complaint, denunciation

1. The asset management officer, asset management and liquidation enterprise shall have the right to file their petition for administrative decisions or actions taken by the civil judgement enforcement agency and other agencies or organizations when there is sufficient grounds that such decisions or actions infringe upon the legal rights or interests of the asset management officer, asset management and liquidation enterprise. Dealing with such petition shall comply with legal regulations on complaints or the legislation on court judgement enforcement.

2. Individuals shall be vested the right to denounce violations against the law on bankruptcy and the ethical code of the asset management officer to competent authorities. Taking measures to deal with such denunciation shall conform to the regulations laid down in the legislation on denunciation.

Chapter V

IMPLEMENTARY PROVISIONS

Article 28. Transitional provisions

1. With regard to the request for the beginning of the bankruptcy proceedings which have been handled in the People’s Court before January 1, 2015, upon which the asset management and liquidation team under the provisions of the Law on Bankruptcy No. 21/2004/QH11 has been established, if this team has yet to perform their assigned tasks or exercise their delegated powers till January 1, 2015, they are required to continue to do so for such bankruptcy.

In case the bankruptcy judge has succeeded in appointing the asset management officer, asset management and liquidation enterprise under the provisions of the Law on Bankruptcy No. 51/2014/QH13 and this Decree at the request for the beginning of the aforesaid bankruptcy proceedings, such asset management and liquidation team shall terminate its operations and shall be dissolved under the provisions of the Law on Bankruptcy No. 21/2004/QH11. The asset management officer, asset management and liquidation enterprise proceeds to perform the task of managing and liquidating assets for such bankruptcy, except for the work that such asset management and liquidation team has completed within their assigned tasks or delegated powers under the provisions of the Law on Bankruptcy No. 21/2004/QH11. The performance outcome of the asset management and liquidation team shall be accredited and have its useful value under the provisions of the Law on Bankruptcy No. 51/2014/QH13.

2. With regard to the request for the beginning of the bankruptcy proceedings which have been handled in the People’s Court before January 1, 2015, upon which the asset management and liquidation team under the provisions of the Law on Bankruptcy No. 21/2004/QH11 has been established, the bankruptcy judge shall appoint the asset management officer, asset management and liquidation enterprise under the provisions of the Law on Bankruptcy No 51/2014/QH13 and this Decree by January 1, 2015.

Article 29. Effect

1. This Decree shall take effect from April 06, 2015.

2. Regulations on the asset management and liquidation team governed by the following legislative documents shall become defunct:

a) Clause 3 Article 1, Clause 2 Article 2, Article 11 and Chapter III of the Government’s Decree No. 67/2006/NĐ-CP dated July 11, 2006 dated July 11, 2006 on providing guidance on the enforcement of the Law on Bankruptcy for special enterprises, and organization and operation of the asset management and liquidation team.

b) Article 6, Article 7, Clause 1 Article 17, Clause 3 Article 27, Clause 3 Article 31 and Clause 2, 3 Article 40 of the Government’s Decree No. 05/2010/NĐ-CP dated January 18, 2010 on stipulating the introduction of the Law on Bankruptcy for credit institutions.

Article 30. Implementation

1. Ministers, Heads of ministerial-level bodies, Heads of Governmental agencies, Presidents of the People’s Committee of centrally-affiliated cities or provinces shall be responsible for implementing this Decree.

2. The Minister of Justice shall take responsibility to provide guidance on the implementation of this Decree ./.

 

 

 

PP. THE GOVERNMENT
THE PRIME MINISTER




Nguyen Tan Dung

 


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