Chương 4 Nghị định 163/2006/NĐ-CP: Xử lý tài sản bảo đảm trong cầm cố, thế chấp

Chapter IV

DISPOSAL OF SECURITY ASSETS IN PLEDGE AND MORTGAGE

Article 56.- Cases of disposal of security assets

1. The secured obligation comes due but the obligor fails to perform or improperly performs that obligation.

2. The obligor must fulfill the secured obligation ahead of time as a result of its obligation breach, as agreed upon or provided for by law.

3. It is provided for by law that security assets must be disposed of for the performance of another obligation by the securer.

4. Other cases agreed upon by the parties or provided for by law.

Article 57.- Disposal of security assets when the securer goes bankrupt

1. If the securer being the obligor goes bankrupt, the security asset shall be disposed of according to the provisions of law on bankruptcy and this Decree for the obligation performance. If law on bankruptcy contains provisions on disposal of security assets different from those of this Decree, the provisions of law on bankruptcy prevail.

2. If the securer being a third party that pledges or mortgages its asset goes bankrupt, the security asset shall be disposed of as follows:

a/ If the secured obligation comes due but the obligor fails to perform or improperly performs the obligation, the security asset shall be disposed of according to the provisions of Clause 1 of this Article for the obligation performance;

b/ If the secured obligation is undue, the security asset shall be disposed of as agreed upon by the parties. If there is no agreement, the security asset shall be disposed of according to the provisions of law on bankruptcy for performance of another obligation of the securer.

Article 58.- Principles for disposal of security assets

1. In case an asset is used to secure the performance of an obligation, the disposal of that asset shall be carried out as agreed upon by the parties. If there is no agreement, that asset shall be put on auction according to the provisions of law.

2. In case an asset is used to secure the performance of many obligations, the disposal of that asset shall be carried out as agreed upon by the securer and the co-securees. If there is no agreement or no agreement is reached, that asset shall be auctioned according to the provisions of law.

3. The disposal of security assets must be carried out in an objective, public and transparent manner so as to ensure the legitimate rights and interests of the parties to security transactions, the concerned organizations and individuals and in compliance with the provisions of this Decree.

4. The disposer of security assets (hereinafter referred to as the asset disposer) is the securee or the person authorized by the securee, unless otherwise agreed upon by the parties to the security transaction.

5. The disposal of security assets for recovery of debts does not constitute asset trading activities of the securee.

Article 59.- Agreed modes of disposal of security assets

1. Sale of security assets.

2. Receipt by the securee of the very security assets as substitute for the obligation performance by the securer.

3. Receipt by the securee of money amounts or other assets from a third party in case of mortgage of debt claims.

4. Other modes agreed upon by the parties.

Article 60.- Obligations of the asset disposer in case an asset is used to secure the performance of many obligations

1. To notify other co-securees of the disposal of the asset according to the provisions of Article 61 of this Decree.

2. To dispose of the security asset.

3. To pay proceeds from disposal of the security asset according to the payment priority order.

Article 61.- Notification of disposal of the security asset for performance of many obligations

1. Before disposing of the security asset, the asset disposer shall notify in writing the security asset disposal to other co-securees according to their addresses kept at the security transaction registry, or register the written notice on security asset disposal according to the provisions of law on registration of security transactions.

2. For security assets in danger of deterioration or devaluation, debt claims, valuable papers, savings cards or bills of lading, the asset disposer may dispose of them immediately and concurrently notify other securees of that asset disposal.

3. A written notice on disposal of a security asset shall contain the following principal details:

a/ Reason(s) for the asset disposal;

b/ Secured obligation;

c/ Description of the asset;

d/ Mode, time and place of disposal of the security asset.

4. If the asset disposer fails to notify the security asset disposal according to the provisions of Clause 1 of this Article, thus causing damage to other co-securees in the registered security transaction, it shall pay damages.

Article 62.- Time limit for disposal of security assets

The security asset shall be disposed of within a time limit agreed upon by the parties. If there is no agreement, the asset disposer may decide on the disposal time limit, which must be at least seven days for movables or fifteen days for immovables as from the date of notification of security asset disposal, except for the cases specified in Clause 2, Article 61 of this Decree.

Article 63.- Custody of security assets for disposal

1. The holder of the security asset shall hand over that asset to the asset disposer according to the latter's notice. Upon the expiration of the time limit stated in the notice, if the asset holder fails to hand over the asset, the asset disposer may take into custody the security asset according to the provisions of Clause 2 of this Article for disposal or request the court to handle.

2. When taking into custody the security asset, the asset disposer has the following responsibilities:

a/ To notify in advance the asset holder of the application of the measure of taking into custody the security asset within a reasonable time limit. The written notice must clearly state the reason and time of the taking into custody of the security asset, rights and obligations of the parties.

b/ Not to apply measures in violation of prohibitions prescribed by law and in contravention of social ethics in the course of taking into custody of the security asset.

3. If the asset holder is a third party, the securer shall coordinate with the asset disposer in taking into custody the security asset.

4. The securer or the third party holding the security asset shall bear reasonable and necessary expenses for the taking into custody of the security asset. If it fails to hand over the security asset for disposal or commits act of obstructing the lawful custody of the security asset, thus causing damage to the securee, it shall pay damages.

5. In the course of taking into custody the security asset, if the asset holder shows signs of resisting, obstructing, causing public insecurity or disorder or commits other law-breaking acts, the security asset disposer may request the People's Committee of the commune, ward or district township and the Police Office of the locality where the security asset is taken into custody to apply, within the ambit of their respective functions, tasks and powers, measures provided for by law to maintain security and order, ensuring the exercise of the asset disposer's right to take into custody the security asset.

Article 64.- Rights and obligations of the securee pending the disposal of the security asset

1. Pending the disposal of the security asset, the securee may exploit or use the security asset or permit the securer or authorize a third party to exploit or use the security asset according to its properties and utility. The permitted or authorized exploitation, modes of exploitation and the use of yields and profits obtained from exploitation must be recorded in writing.

2. Obtained yields and profits must be separately accounted, unless otherwise agreed upon. After subtracting expenses necessary for the exploitation or use of assets, the remainder of yields and profits shall be used to pay to the securee.

Article 65.- Disposal of security assets being movables in case of no agreement on disposal mode

If there is no agreement on mode of security asset disposal, the security asset may be auctioned according to the provisions of law. Particularly for a security asset which can be specifically or clearly valued on the market, the asset disposer may sell it at the market price without carrying out auctioning procedures and shall concurrently notify such to the securer and other co-securees (if any).

Article 66.- Disposal of security assets being debt claims

1. The securee may request a third party being a debtor to transfer money amounts or other assets to it or to its authorized person. The securee shall prove the debt claim when so requested by the debtor.

2. If the securee is concurrently the debtor, it may clear such debt.

Article 67.- Disposal of security assets being valuable papers, bills of lading or savings cards

1. The disposal of security assets being bonds, stocks, bills of exchange, other valuable papers and savings cards shall comply with the provisions of law on bonds, stocks, bills of exchange, other valuable papers and savings cards.

2. Pledgees of bills of lading may produce those bills of lading according to the procedures specified by law for exercising the right to possession of cargos stated in those bills of lading. The disposal of cargoes stated in bills of lading shall comply with the provisions of Article 65 of this Decree.

If the cargo holder fails to transfer the cargo stated in the bill of lading to the securee, thus causing damage to the latter, it shall pay damages.

3. If the securee is concurrently obliged to pay, it may clear the payable amount.

Article 68.- Disposal of security assets being land use rights or assets attached to land in case of no agreement on disposal mode

1. In case of no agreement on mode of disposal of security assets being land use rights or assets attached to land, those assets shall be auctioned.

2. In case only assets attached to land are mortgaged while land use rights are not, upon the disposal of assets attached to land, the buyer or the principal receiver of those assets may continue to use the land. Rights and obligations of the mortgagor in the contract on land use rights between the mortgagor and the land user are transferred to the buyer or the principal receiver of the very assets attached to land, unless otherwise agreed upon.

Article 69.- Determination of payment priority order in case of security for performance of future obligations

When a security transaction is entered into to secure the performance of a future obligation, that future obligation will be on the payment priority order according to the registration order of that security transaction, regardless of the time of establishment of the civil transaction that gives rise to that future obligation.

Article 70.- Transfer of security asset ownership and use rights

1. The buyer or principal receiver of the security asset as substitute for the performance of the obligation by the securer to it may own that asset. The time of transfer of ownership is determined according to the provisions of Article 439 of the Civil Code.

2. In case of the security asset with the ownership or use right registration, the transferee of that asset's ownership or use rights are granted an ownership or use right certificate by a competent state agency.

Procedures for transferring security asset ownership or use rights comply with the provisions of law on registration of asset ownership and use rights. If it is provided for by law that the transfer of asset ownership or use rights must be approved in writing by the owner and on the basis of a contract on asset purchase and sale between the asset owner or the judgment debtor and the asset buyer on disposal of security asset, the asset pledge contract or the asset mortgage contract is used as a substitute for those papers.

Article 71.- Rights to receive back security assets

If the securer fulfills its obligation toward the securee and pay all expenses arising due to delayed obligation performance before the disposal of the security asset, it may receive back that asset, unless otherwise provided for by law.