Công văn 152/TANDTC-PC

Recently, the Supreme People’s Court has received reports on difficulties in settlement of disputes to treat collateral of credit contracts sent by certain courts, the State bank of Vietnam, certain credit institutions and VAMC.

In respect of the above-mentioned matters, on June 19, 2014, the National Assembly has passed the Law on Bankruptcy No. 51/2014/QH13, entering into force as of January 1, 2015; on November 24, 2015, the National Assembly has passed the Civil Code No. 91/2015/QH13 (hereinafter referred to as the Civil Code 2015) and the Civil Procedure Code No. 92/2015/QH13 (hereinafter referred to as the Civil Procedure Code 2015). The Civil Code 2015 has entered into force as of January 1, 2017; the Civil Procedure Code 2015 has entered into force as of July 1, 2016, except for regulations relating to the Civil Code 2015 entering into force as of January 1, 2017; the Council of Judges of the Supreme People’s Court has also promulgated resolutions on guidelines for certain regulations of these Codes. In particular, on June 21, 2017, at the 3rd session, the National Assembly has passed Resolution No. 42/2017/QH14 on pilot settlement of bad debts of credit institutions, in which the Supreme People’s Court has been assigned to implement the Resolution and provide guidelines for the purpose of consistent application of law in terms of settlement of disputes over settlement of bad debts, collateral tied to the bad debts as prescribed in this Resolution.

With the aim of settling disputes effectively to settle bad debts, the Supreme People’s Court requests Chief Justices of Superior People’s Courts, Chief judges of People’s Court of provinces and central-affiliated cities, heads of affiliates of the Supreme People’s Court shall keep implementing regulations of the Civil Code 2015; the Civil Procedure Code 2015, the Law on Bankruptcy 2014 and their guiding documents; in which the following matters should be noted:

1. Identification of entities in civil relations with the participation of households using land

The identification of entities in civil relations with the participation of households using land is specified in Article 101 of the Civil Code 2015, Clause 29 Article 3 of the Law on Land 2013 and guidelines in Point 4 Part III Response No. 01/2017 dated April 7, 2017 of the Supreme People’s Court in terms of certain issues of practices.  Particularly, household using land refers to persons who have marital, biological and foster relationship as prescribed by law on marriage and family, living together and having the common land use right at the time of the state has allocated land, leased out land, recognized land use right; receive assignment of land use right.

2. Representatives

Firstly, authorized representatives: Each natural or juridical person may authorize another natural or juridical person to enter into and perform a civil transaction (Article 138 of the Civil Code 2015).

Secondly, scope of representation (Article 141 of the Civil Code 2015):

- Each representative may only enter into and/or perform civil transactions within his/her scope of representation according to any of the following bases: (i) The decision of the competent authority; (ii) the charter of the juridical person; (iii) content of authorization; (iv) other regulations as prescribed by law.

- If it fails to determine the specific scope authorization prescribed in Clause 1 of this Article, the legal representative has the right to enter into and perform all civil transactions in the interests of the principal, unless otherwise prescribed by law.

- A natural or juridical person may represent multiple natural or juridical persons but he/she/it may not, on behalf of the principal, enter into and perform a civil transaction with him/her/it or with a third party that he/she/it also acts as a representative for, unless otherwise prescribed by law.

3. Security for performance of obligations

Firstly, scope of secured obligations: With respect to a future obligation which is going to arise within a guaranteed time limit, it shall be the secured obligation, unless otherwise agreed (Article 293 of the Civil Code 2015); obligees shall reach specific agreement on scope of secured obligations and time limit for secured obligations, unless otherwise prescribed by law. When the future obligation arises, the parties are not required to re-establish the security for such obligation (Article 294 of the Civil Code 2015).

Secondly, scope of guarantee: The parties may agree on using security as property to secure the performance of guaranteed obligation. If the obligation to guarantee is an obligation arising in the future, the scope of guarantee is exclusive of any obligations arising after the guarantor being natural person dies or the guarantor being juridical person ceases to exist (Article 336 of the Civil Code 2015).

Thirdly, relationship between guarantors and creditors: If the principal fails to perform or performs incorrectly the obligation, the creditor is entitled to request the guarantor to fulfill the guaranteed obligation, unless contracting parties has agreed that the guarantor only be required to perform the obligation on behalf of the principal debtor in case of the failure to perform obligation by the principal debtor (Article 339 of the Civil Code 2015).

4. Transfer of right to demand

Where a person having a right to demand transfers such right to a subrogatee, the subrogatee of the obligee shall become the person having the right to demand. The transfer of right to demand does not require the consent of the obligor. A person transferring a right must notify the obligor in writing of the transfer of the right to demand, unless otherwise agreed. If the person transferring the right fails to notify the obligor thereby the obligor incurs expenses, the person transferring the right must pay for those expenses. (Article 365 of the Civil Code 2015).

5. Civil transactions established before the effective date of the Civil Code 2015 (Article 688 of the Civil Code 2015)

- With regard to civil transactions established before the effective date of the Civil Code 2015, the parties of non-performed civil transactions whose contents and forms are different from this Code shall keep complying with regulations of the Civil Code 2005 and legislative documents on guidelines for the Civil Code 2005, unless the parties agree to amend the contents or forms of the transactions in accordance with the Civil Code 2015.

- The parties of being-performed civil transactions whose contents and forms are different from the Civil Code 2015 shall keep complying with regulations of the Civil Code 2005 and legislative documents on guidelines for the Civil Code 2005.

- The parties of non-performed or being-performed civil transactions whose contents and forms are conformable to the Civil Code 2015 shall comply with regulations of the Civil Code 2015.

- The parties of civil transactions that are completely performed before the effective date of the Civil Code 2015 but any dispute arises shall keep complying with regulations of the Civil Code 2005 and legislative documents on guidelines for the Civil Code 2005.

6. Inheritance of procedural rights and obligations

Where the owners of the organizations are replaced and the rights and obligations are transferred to the new owners, the new owners shall inherit the procedural rights and obligations. Where the organizations received the rights and obligations according to civil law provisions, such organizations shall inherit the procedural rights and obligation (Article 74 of the Civil Procedure Code 2015).

7. Periods of prescription for lawsuits

Firstly, the periods of prescription for lawsuits, the periods of prescription for requests for civil matter resolution shall conform to provisions of the Civil Code. The Courts shall apply the regulations on periods of prescription according to the requests for application of periods of prescription of one or multiple sides, provided that such requests are made before the first-instance Courts issue the judgments/decisions on such matters/cases. The persons who gain benefits from the application of periods of prescription may refuse to apply the periods of prescription, unless such refusal is to avoid their performance of obligations (Article 184 of the Civil Procedure Code 2015, Article 149 of the Civil Code 2015).

Secondly, time when civil disputes arise prescribed in Article 2 of Resolution No. 103/2015/QH13 shall be considered as date of lawsuit institution.  The date of lawsuit institution shall be determined as prescribed in Clauses 2, 3, and 4 Article 190 of the Civil Procedure Code 2015.

Regulations on periods of prescription for lawsuit prescribed in Article 159 and Point h Clause 1 Article 192 of the Civil Procedure Code 2004, which have been amended as prescribed in the Law No. 65/2011/QH12 shall keep applying until December 31, 2016 inclusive for acceptance and settlement of civil cases.

From January 1, 2017, the court applies regulations of the Civil Procedure Code 2015, the Civil Code 2015 and other laws on periods of prescription for lawsuits for the purposes of acceptance and settlement of civil cases (Article 4 of Resolution No. 02/2016/NQ-HDTP dated June 30, 2016 of the Council of Judges of the Supreme People’s Court on guidelines for certain regulations of Resolution No. 103/2015/QH13 dated November 25, 2015 of the National Assembly on implementation of the Civil Procedure Code and Resolution No. 104/2015/QH13 dated November 25, 2015 of the National Assembly on implementation of the Law on Administrative Procedures).

8. Lawsuit institution and acceptance of cases

Firstly, right to institute cases: Agencies, organizations and individuals are entitled to institute cases by themselves or through their lawful representatives (hereinafter referred to as the litigators) at competent Courts to request the protection of their legitimate rights and interests (Article 186 of the Civil Procedure Code 2015).

Secondly, form and contents of a lawsuit petition: If litigators are agencies or organizations, the lawful representatives of such agencies/organizations may draw up themselves or request other persons to draw up petitions. Names and residential addresses of such agencies/organizations and full names and positions of their lawful representatives shall be written at the blanks for names and address of litigators; at the end of the petitions, there shall be signatures and seals of the lawful representatives of such agencies/organizations. If the litigators are enterprises, the use of seals must comply with regulations in the Law on Enterprise (Article 189 of the Civil Procedure Code 2015).

Thirdly, return of lawsuit petitions: The Court shall return a lawsuit petition if the litigator fails to amend the petition at the request of the Judge as prescribed in clause 2 Article 193 of the Civil Procedure Code 2015. If in the petition, the litigator has written sufficiently and accurately the residential addresses of the defendant(s) and/or the person(s) with relevant interests and duties but such persons change their residences regularly without notification to competent agencies/persons according to law regulations on residence to evade obligations towards the litigators, the Judge shall not return the lawsuit petition but regard the defendants/persons with related interests and duties as purposely concealing their addresses and accept the petition and conduct settlement according to general procedures. If in the petition, the litigator failed to declare sufficiently or accurately names and addresses of defendant(s) and/or person(s) with relevant interests and duties and failed to make amendment according to the requests of the Judge, the Judge shall return the petition to the litigator (Article 92 of the Civil Procedure Code 2015).

Fourthly, place of residence of defendants, person with relevant interests and obligations:

- Apply Article 40 of the Civil Code 2015 in terms of address of place of residence. If a party, in a particular civil relation, changes his/her place of residence in association with his/her exercise of right or fulfillment of obligation, he/she must notify the other of the new place of residence

- Apply guidelines in Resolution No. 04/2017/NQ-HDTP dated May 5, 2017 of the Council of Judges of the Supreme People’s Court on guidelines for certain regulations in Clause 1 and Clause 3 Article 192 of the Civil Procedure Code No. 92/2015/QH13 on return of lawsuit petitions, right to re-institute lawsuit petitions. Particularly, Article 5 and Article 6 of this Resolution have guided identification of addresses of defendants, persons with relevant interests and obligations and actions against improper addresses thereof.

9. Treatment of collateral of insolvent enterprises, cooperatives and enterprises, cooperatives subject to bankruptcy procedures for interests of secured creditors (Article 41 and Article 53 of the Law on Bankruptcy 2013)

Firstly, within 05 working days from the acceptance of the written request for initiation of bankruptcy process, the People’s Court shall:

- Suspend the civil, business, commercial, or labor case related to the financial obligations in which the insolvent enterprise, cooperatives is a litigant.  The suspension must comply with the regulations of the law on civil procedure.

- Separate and suspend the civil matter in a criminal or administrative case related to the financial obligations in which the insolvent enterprise, cooperatives is a litigant.  The separation and suspension must comply with the regulations of the law on criminal procedure and administrative procedure.

- Suspend the treatment of collateral of insolvent enterprise or cooperatives for the interests of secured creditors.

Secondly, if the asset management officer/enterprise, after the initiation of bankruptcy process, requests the judge to take actions against the secured debts subject to suspension as prescribed in Clause 3 Article 41 of the Law on Bankruptcy 2013, the judge shall consider and take actions as follows:

- If the collateral is used for resuming the business operation, they shall be handled according to the Resolution of creditors’ meeting;

- If the plan to resume business operation is not implemented or the assets put up as collateral are not necessary to resume the business operation, the assets shall be handled according to effective period of the contract, with regard to any secured contract which is due. With regard to any secured contract that is undue, the People’s Court shall suspend the contracts and handle the secured debts before the declaration of bankruptcy.

Thirdly, if the assets put up as collateral are likely to be damaged or dramatically devalued, the asset management officers and/or asset management enterprises shall request the judge to immediately handled them according to Clause 3 Article 53 of the Law on Bankruptcy 2013.

Fourthly, the collateral prescribed in Point b Clause 1 and Clause 2 Article 53 of the Law on Bankruptcy 2013 shall be handled as follows:

- The secured debts determined before the People’s Court receives the written request for initiation of bankruptcy process shall be paid by the collateral;

- If the value of the collateral is not enough to cover the debt, the remaining value of the debt shall be paid during the liquidation of the assets of the insolvent enterprise, cooperatives; if the value of the collateral is higher than the debt, the difference shall be included in the value of the assets of the insolvent enterprise, cooperatives.

Difficulties that arise during the implementation of this Resolution should be reported to the Department of Legal and Science Management affiliated to the Supreme People’s Court for consideration.

The Supreme People’s Court shall request Chief Justices of Superior People’s Courts, People’s Courts of provinces and central-affiliated cities, heads of affiliates of the Supreme People’s Court, after receiving this Dispatch, to heighten awareness of their judges, examiners, court clerks and People’s Courts of urban districts, suburban districts, district-level towns under territorial jurisdiction for consistent application.