CIRCULAR

ON AMENDMENTS TO CIRCULAR NO. 08/2018/TT-BTP DATED JUNE 20, 2018 OF MINISTER OF JUSTICE ON GUIDELINES FOR REGISTRATION OF AND PROVISION OF INFORMATION ABOUT SECURITY INTERESTS AND CONTRACTS, AND EXCHANGE OF INFORMATION ABOUT SECURITY INTEREST REGISTRATION WITH CENTERS FOR REGISTRATION OF TRANSACTIONS AND ASSETS OF THE NATIONAL REGISTRATION AGENCY FOR SECURED TRANSACTIONS AFFILIATED TO THE MINISTRY OF JUSTICE

Pursuant to the Civil Code dated November 24, 2015;

Pursuant to the Government’s Decree No. 39/2014/ND-CP dated May 07, 2014 on operation of finance companies and financial leasing companies;

Pursuant to the Government’s Decree No. 102/2017/ND-CP dated September 01, 2017 on registration of security interests;

Pursuant to the Government’s Decree No. 96/2017/ND-CP dated August 16, 2017 defining functions, tasks, entitlements and organizational structure of the Ministry of Justice;

At the request of the Director of the National Registration Agency for Secured Transactions;

The Minister of Justice hereby promulgates a Circular on amendments to Circular No. 08/2018/TT-BTP dated June 20, 2018 of Minister of Justice on guidelines for registration of and provision of information about security interests and contracts, and exchange of information about security interest registration with Centers for Registration of Transactions and Assets of the National Registration Agency for Secured Transactions affiliated to the Ministry of Justice.

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1. Article 1 shall be amended as follows:

 “Article 1. Scope

This Circular provides guidelines for registration of and provision of information about security interests, contracts, exchange of information about registration of security interests with Centers for Registration of Transactions and Assets of the National Registration Agency for Secured Transactions affiliated to the Ministry of Justice.”

2. Clause 3 Article 2 shall be amended as follows:

 “3. Registries of ownership, rights to use, and circulation of property as prescribed in point b clause 1 Article 63 of the Government’s Decree No. 102/2017/ND-CP dated September 01, 2017 on registration of security interests (hereinafter referred to as the “Decree No. 102/2017/ND-CP”) that are road motor vehicles; railway vehicles; inland watercrafts; fishing vessels; specialized vehicles with ownership and circulation registration.”

3. Article 5 shall be amended as follows:

 “Article 5. Security interest registration

Upon requests of individuals and organizations, the Registration Center may register the security interests, modify the registered security interests, correct errors, de-register, or register notices of intention to dispose of collateral in the following circumstances:

1. Mortgage of movable property, except for aircraft and ships, including off-the-plan movable property;

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4. Article 5a shall be added to Article 5 as follows:

 “Article 5a. Contract registration

1. Upon applications of individuals or organizations to make public the information, the Registration Center may register contracts, modify registered contracts, correct errors, de-register the following contracts (except for civil aircraft purchase contract prescribed by the law on aviation, financial lease contract for aircraft prescribed by the law on financial lease services, ship hire-purchase contract prescribed by the law on maritime law, financial lease contract for a ship that is not mentioned in Clause 3 Article 39 of the Circular No. 30/2015/TT-NHNN of the State Bank of Vietnam on licensing, organization and operation of non-bank credit institutions, and contracts related to land use rights or property on land prescribed by the law on land and housing):

a) Property lease contracts in effect for either a minimum term of one year or a term of less than one year under which contracting parties must agree on an extension of such term and the aggregate lease term (including that extension) of at least one year; good consignment contracts;

b) Financial lease contracts prescribed by the law on financial lease services;

c) Contracts for transfer of the right to collect debts, accounts receivable, other claims for payment, including both the existing and the future the right to collect debts, accounts receivable, other claims for payment.

2. The registration mentioned in clause 1 hereof does not make the contract take effect. The applicant for registration (hereinafter referred to as registrant) shall be held liable for the legality and accuracy of the information given in the application form for registration.”

5. Certain points and clauses of Article 6 shall be amended as follows:

a) Clause 3 shall be amended as follows:

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b) Clause 7 shall be amended as follows:

 “7. Property rights, including:

a) Property rights deriving from copyright, industrial property rights or plant variety rights; property rights deriving from research work findings and technology development and transfer; and other monetary rights in science and technology, information technology; rights to extraction of natural resources;

c) Property rights deriving from contracts, including right to debt collection, right to claim payment, right to benefits derived from contract, right to operate and manage project, right to claim for damages arising from contract or other monetary rights deriving from contract (except for land use right, right to ownership of property on land, ownership right or other rights to aircraft/ship as required by aviation or marine law; entitlement to insurance policy; right to file tort claim;

d) Other property rights as per the law.”

c) Clause 8 shall be amended as follows:

 “8. Right to receive sum insured for collateral or other benefits obtained from the collateral mentioned in this Article; yields; income, accounts receivable, amounts collected from operation of aircraft and ships; profits earned from trading and use of value of land use rights or property on land; or from their investment, trading and development of house construction project and construction project and infrastructure, other property on land.”

6. Article 7a shall be added to Article 7 as follows:

 “Article 7a. Online registration without a user code to access the security interest database

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The said registrant may use the account created to register the security interests or contracts established by themselves.

2. Upon creation of an online account on the online registration system of the National Registration Agency for Secured Transactions affiliated to the Ministry of Justice, the registrant shall declare complete information and be held liable for the information given and attach scans of original proof of legal status (ID card or citizen identity card or identity card issued as per the law on commissioned officers of People's Army of Vietnam, the Law on professional soldiers, national defense workers and public employee for a Vietnamese individual; passport for a foreign individual; permanent resident card for a stateless person residing in Vietnam; business registration certificate for a juridical person, sole proprietorship; certificate of operation registration of branch, certificate of registration for place of business, establishment decision for other type of organization) of the account creator. The scan shall be made in PDF format.

3. When performing online registration, the registrant shall insert information on the Interactive Electronic Form according to the instructions in this Circular.

4. The registrant shall pay a registration fee and provide information before confirming a registration request and providing information on the online registration system.

5. Any registrant who has been granted a user code by the National Registration Agency for Secured Transactions may not create an account as prescribed in clause 1 hereof.

In case the registrant has created an account as prescribed in Clause 1 of this Article and still seeks a user code, it shall send an application for issuance to the National Registration Agency for Secured Transactions as prescribed. The National Registration Agency for Secured Transactions shall close this account before issuing such a user code.”

7. Clauses 1 and 2 shall be amended and Clauses 6 and 7 shall be added to Article 9 as follows:

a) Clauses 1 and 2 shall be amended as follows:

 “1. Information about the grantor, buyer of property whose title is retained, property lessee, financial lessee and transferor of the debt collection right, good consignee (hereinafter referred to as “the grantor”) shall be filled as follows:

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b) Regarding an individual who is a foreigner, it is required to fill his/her full name and passport number written on the passport;

c) Regarding an individual who is a stateless person residing in Vietnam, it is required to fill his/her full name and Permanent Residence Card number written on the Permanent Residence Card;

d) Regarding a sole proprietorship, it is required to fill its name and TIN;

dd) Regarding a household, it is required to fill details of members as prescribed in point a hereof;

e) Regarding a household business, artel, it is required to fill details of members as prescribed in point a hereof;

g) Regarding a juridical person that is established in accordance with Vietnam’s law, it is required to fill its name and TIN provided by a tax authority. In case it has no TIN, it is required to declare information as guided in point k hereof;

h) Regarding a branch of the juridical person, it is required to fill its name and TIN;

i) Regarding an organization that is established and operates in accordance with foreign law, it is required to fill the name registered with a competent foreign authority. In case the registered name is not written in Latin script, it is required to fill the English name;

k) Regarding other organizations, it is required to fill their name;

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2. Information about secured party, purchaser of property whose title is retained, property lessor, financial lessor and transferee of the debt collection right, the good consignor (hereinafter referred to as “the secured party”) shall be filled as follows:

a) Name of the secured party;

b) Address of the secured party.”

b) Clauses 6 and 7 shall be supplemented as follows:

 “6. In case the collateral is a special-use vehicle with registration of ownership and circulation rights, the registrant shall make the declaration according to the instructions in Clause 5 of this Article. The description of collateral shall comply with the instructions in Clauses 1, 2 and 5, Article 10 of this Circular.

7. If the information of the grantor is filled in according to the identity card issued as per the law on commissioned officers of People's Army of Vietnam, the Law on professional soldiers, national defense workers and public employee, the registrant shall make the declaration in the box of ID card or citizen identity card in the application form for registration or in the equivalent field of the interactive electronic form of the online registration system.”

8. Clauses 1 and 2 shall be amended and Clauses 3 and 4 shall be added to Article 11 as follows:

a) Clauses 1 and 2 shall be amended as follows:

 “1. The application form for registration shall bear signature and seal (if any) of natural persons and juridical persons that are securing parties and contracts or persons authorized by such natural persons and juridical person, except for the cases in clauses 2, 3 and 4 hereof.

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a) In case one of the parties participating in security interests and contracts does not sign the application form for registration, the registrant shall send the application form for registration enclosed with an original or notarized/true certified copy of the security contract and contract in order for the Registration Center to back it up or make a comparison. In case the application form for registration is sent by email, the registrant shall attach a scanned copy of the original application form for registration and attached documents, the scanned copy using the PDF format;

b) In the case of change of the secured party or reduction of collateral, registration of notice of intention to dispose of collateral and deregistration of the security interests, the application form for registration shall only bear the signature and seal (if any) of the secured party or person authorized by the secured party;

c) In case the deregistration or collateral reduction involves multiple secured parties but the application form for deregistration is only signed by one of the secured parties, it is required to send a written consent of remaining secured parties to deregistration (original or certified copy of the mortgage agreement liquidation or release of mortgage) or send a written consent of remaining secured parties to collateral reduction (original or certified copy).

In case the secured parties do not sign the application form for registration, the application form for registration may only bear the signature and seal (if any) of the grantor or the authorized person of the grantor and the registrant shall send the application form for registration enclosed with a written consent to deregistration (original or certified copy of the mortgage agreement liquidation or release of mortgage), a written consent of the secured parties to collateral reduction (original or certified true copy);

d) In case the organization does not have a seal but the signatory of the application form for modification to existing registration, the application form for correction of errors, the application form for registration of notice of intention to dispose of collateral, the application form for deregistration and the signatory of the previous application form for registration is not the same person, the registrant is responsible for providing a document identifying the person authorized to sign the application form for registration (original or certified copy) for backup and comparison.”

b) Clauses 3 and 4 shall be supplemented as follows:

 “3. In case of application for registration of change of secured party due to enterprise restructuring, debt purchase, or due to transfer of the right to claim or other obligations as prescribed by law, the application form for registration only needs to bear the signature, seal (if any) of the new secured party or of the person authorized by the new secured party.

4. In case of deregistration as prescribed at Point i, Clause 1, Article 21 of Decree No. 102/2017/ND-CP where the applicant for deregistration is a civil judgment enforcement agency, the bailiff's office that has distrained or has disposed of the collateral or of an individual or legal entity that purchases the judgment enforcement-related property, the application form for registration must bear the signature and seal (if any) of this organization/individual or authorized person of the purchaser of the judgment enforcement-related property. In this case, the civil judgment enforcement agency, the bailiff's office, the individual or legal entity that purchases the judgment enforcement-related property, or the authorized person of the purchaser of the judgment enforcement-related property shall sign and stamp (if any) at the section of signature of the secured party on the application form for deregistration.”

9. Clause 1 Article 12 shall be amended as follows:

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a) paid directly at the Registration Center where the application form for registration is submitted;

b) paid through the online registration system; or

c) transferred to the Registration Center’s account opened at the State Treasury or a bank.”

10. Clauses 2 shall be amended and Clauses 4, 5 and 6 shall be added to Article 13 as follows:

a) Clause 2 shall be amended as follows:

 “2. In case of applying for change of the secured party in multiple registered security interests, the registrant may submit an application for change of the security party in such security interests, including: an application form for change of registered contents, a power of attorney (if any) and list of number of registration of security interests to be changed.”

b) Clauses 4, 5 and 6 shall be supplemented as follows:

 “4. In case of registration of a change to the time of signing of a security contract or another contract, this time must not be after the time of initial registration of the security interest or the registered contract.

5. In case the registered security interest or contract involves a vehicle with the chassis number described according to the ex-factory note or customs declaration, when such vehicle is issued with a vehicle registration certificate, the chassis number on this paper is different from the chassis number for which the security interest was previously registered, the registrant shall register the change of information about the chassis number according to the chassis number recorded on the vehicle registration certificate according to the prescribed procedures. in Article 52 of Decree No. 102/2017/ND-CP.

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11. Clauses 1, 2, 3 shall be amended and Clause 4 shall be added to Article 17 as follows:

a) Clauses 1, 2 and 3 shall be amended as follows:

 “1. According to the number of papers determining the legal status of the guarantor mentioned in Clause 1, Article 9 of this Circular.

2. According to the chassis number of the transport vehicle or special-use vehicle with registered ownership, the right to circulation of the property in case the collateral is a mean of transport or special-use vehicle with chassis number.

3. According to the registration number of the security interest, the contract has been registered.”

b) Clause 4 shall be added as follows:

 “4. According to the name of the guarantor mentioned at points i and k, clause 1, Article 9 of this Circular.”

12. Points a and b clause 1 Article 20 shall be amended as follows:

 “a) Information about the grantor, including name and number of the legal status proof; information about the secured party, being the name in the security interest database;

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13. Clause 1 Article 22 shall be amended as follows:

 “1. In the case of a request for a notice of mortgage of road motor vehicle, special-use vehicles with registration of ownership and circulation right, inland watercraft, fishing vessel or railway vehicle, the Registration Center shall send a copy of the certificate of registration of security interests and contracts, notice of seizure of property to enforce a judgment enclosed with an Appendix that shows information about the vehicle mortgage (or release of vehicle mortgage) to a registry of ownership or right to circulation of property.

After obtaining the notice of receipt/processing of information about collateral sent by the registry of ownership or right to circulation of property, the Registration Center shall send a notice on receipt/processing of information about collateral to the registrant.”

14. Clause 4 shall be added to Article 24 as follows:

 “4. From the effective date of the Securities Law 2019 and the Decree on elaboration of the Law on Securities, the Registration Center shall register security interests for other securities that have not yet been centrally registered. at the Vietnam Securities Depository and Clearing Corporation as prescribed in Articles 61 and 62 of the Law on Securities.”

Article 2. Annul point b Clause 7, Article 6, Clause 2, Article 12 of the Minister of Justice's Circular No. 08/2018/TT-BTP dated June 20, 2018 on guidelines for registration of and provision of information about security interests and contracts, and exchange of information about security interest registration with Centers for Registration of Transactions and Assets of the National Registration Agency for Secured Transactions affiliated to the Ministry of Justice.

Article 3. Entry in force

This Circular comes into force as of February 1, 2021./.

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MINISTER




Le Thanh Long