Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Decree elaborates on implementation of the Civil Code regarding security for fulfillment of obligations, including collateral; establishment and implementation of security for fulfillment of obligations (hereinafter referred to as “security measures”) and realization of collateral.
Article 2. Regulated entities
1. Securing parties, secured parties and persons with secured obligations.
2. Relevant agencies, organizations and individuals.
Article 3. Term interpretation
In this Decree, terms below are construed as follows:
1. “securing party” consists of pledger, mortgagor, depositor, party putting up collateral, party making escrow deposit or buyer under property sale agreement with ownership retention, guaranteeing party, local socio-political organization in case of fidelity guarantee, party holding obligations in bilateral contracts for lien measure.
2. “secured party” consists of pledgee, mortgagee, depositee, party receiving collateral, party receiving escrow deposit or seller under property sale agreement with ownership retention, obligees, credit institution in case of fidelity guarantee, party holding rights in bilateral contracts for lien measure.
3. “person with secured obligations” refers to an individual whose obligations are secured for fulfillment via security measures. Persons with secured obligations may or may not be securing parties.
4. “assets attached to land” include houses, constructions built under investment projects for construction of houses; detached houses according to Law on Housing; other constructions; perennial plants and cultivated production forests or other items attached to land as per the law.
5. “security contract” includes property pledge agreement, property mortgage agreement, deposit agreement, collateral agreement, escrow agreement, property sale agreement with ownership retention, guarantee contract or fidelity guarantee contract.
Security contracts can be agreement between securing parties and secured parties or agreement among securing parties, secured parties and persons with secured obligations.
Security contracts can be displayed in separate contracts or clauses regarding security for fulfillment of obligations in other civil transactions conforming to regulations and law.
6. “certificate” includes property ownership certificate, land use right certificate or other document verifying property ownership as per the law.
7. “reasonable period” refers to a period formed by habit established among parties or a period, in normal conditions, in which parties to a security contract, security measure or other subjects having relevant rights, benefits can exercise their rights and obligations.
Article 4. Adoption of regulations and law, and agreement on security for obligation fulfillment
1. In case regulations and law on land, houses, investment, enterprises, securities, insurance, financial institutions, natural resources, fisheries, forestry, aviation, maritime, Intellectual property, science, technology or other fields prescribe collateral, establishment, implementation of security measures or realization of collateral specifically, these specific regulations shall prevail.
In case securing parties, secured parties or persons with secured obligations are declared bankrupt, fulfillment of obligations regarding properties and settlement of guaranteed debt and property preservation measures shall conform to regulations and law on bankruptcy.
2. In case parties to security for fulfillment of obligations have agreements other than those specified under this Decree and conforming to basic principles of civil laws, not violating conditions for effectiveness of civil transaction and not violating limitations on execution of civil rights according to the Civil Code and/or other relevant law provisions, conform to agreements of the parties.
3. In case property owners and secured parties employ properties to guarantee fulfillment of obligations of other individuals, comply with regulations and law on pledging, mortgaging properties.
4. In case agreements contain details regarding security for obligation fulfillment where parties fail to accurately define security measures which are compatible with the agreements according to the Civil Code, comply with regulations on security measures satisfactory to these agreements.
Article 5. Security for fulfillment of obligations with multiple security measures, multiple properties
1. Fulfillment of an obligation can be secured by multiple security measures. In case this obligation is breached and both securing parties, secured parties have no agreements on selecting and adopting security measures, secured parties shall select security measures for application or apply all security measures.
2. Fulfillment of an obligation can be secured by multiple properties. Scope of security for obligation fulfillment of each property among collateral is determined according to agreement between securing parties and secured parties. In case no agreement is available, any property can be used to secure fulfillment of all obligations.
Article 6. Retention, use, transfer and receipt of certificates
1. In case collateral is used to secure fulfillment of other obligations or implement other civil transactions while secured parties are retaining original copies of certificates, the secured parties shall transfer original copies of the certificates to entities in charge of relevant transactions or exercise other obligations according to agreements to enable entities in charge of relevant transactions to adopt procedures as per the law.
In case secured parties transfer original copies of certificates to entities in charge of relevant transactions, entities that receive the original copies must return the original copies as soon as they finish procedures. Failure to return original copies of certificates in a timely fashion will result in compensation incurred by secured parties.
Securing parties may use copies of certificates and original copies of valid written confirmation of secured parties regarding retention of original copies of certificates for use or circulation of properties.
2. Retention and use of certificates regarding aircraft and watercrafts shall conform to Law on Vietnam Civil Aviation and Vietnam Maritime Code.
Article 7. Entitlement for reclaiming collateral
1. Rights of secured parties for collateral in security measures that have taken effect against a third party are not changed or terminated in case collateral is transferred to other individuals as a result of gift, trade, exchange, transfer, other change in ownership, appropriation, use or benefit gain of collateral that lacks legal ground and is not specified under Clause 2 of this Article.
2. Entitlement for reclaiming of secured parties for collateral does not apply to following properties:
a) Collateral that has been sold, transferred or changed in terms of ownership under consent of secured parties and is no longer used as security for fulfillment of obligations;
b) Mortgaged properties that have been sold, replaced or exchanged according to Clause 4 Article 321 of the Civil Code;
c) Collateral is no longer available or is replaced by other collateral according to Article 21 hereof;
d) Other cases according to the Civil Code and other relevant law provisions.
3. In case securing parties are individuals who have deceased or juridical persons who have ceased to exist, entitlement for reclaiming collateral of secured parties shall not be terminated but conform to Article 658 of the Civil Code and other regulations on inheritance in the Civil Code in case securing parties are individuals who have deceased or conform to regulations and law on dissolution of juridical persons and bankruptcy in case securing parties are juridical persons who have dissolved or declared bankrupt.
Tìm kiếm
Nghị định 21/2021/NĐ-CP (Bản Word)
Nghị định 21/2021/NĐ-CP (Bản Pdf)
