Chương I Nghị định 99/2022/NĐ-CP về đăng ký biện pháp bảo đảm: Quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree sets forth registration of and provision of information on asset-based security interests (hereinafter referred to as security interests); the state management of the registration of security interests.

2. Registration of security interests, provision of information on security interests in securities registered with Vietnam Securities Depository and Clearing Corporation (VSDC) shall comply with law on securities. As for matters not specified in the law on securities, the provisions related to registration of security interests in movable property other than aircraft or seagoing ships in this Decree shall apply.

Article 2. Regulated entities

This Decree applies to agencies, organizations and individuals participating in or related to the registration, provision of information about security interests, and state management of registration of security interests.

Article 3. Interpretation of terms

For the purposes of this Decree, these terms below shall be construed as follows:

1. Registration of security interests refers to the recording in a security interest register or entry into a database on security interests by a security interest registry of the use of assets by the grantor to secure performance of an obligation of their own or another person, or also to secure performance of an obligation of their own or another person with the secured party (hereinafter referred to as registration).

2. Provision of information about a security interest means the provision of information about a registered security interest by the registration authority or another competent agency specified in this Decree at the request of the agency, related organizations and individuals or other competent agencies or the provision of information about property by the to the registry.

3. Register means a book used by the registry to record and update the registered information. The register can be a paper book, an electronic book or at the same time a paper book and an electronic book, including:

a) Cadastral register or register of mortgage of off-the-plan assets on land in case of security interest in land use rights or property on land;

b) Vietnam aircraft register in case of security interest in aircrafts;

c) Vietnam sea-going ship register in case of security interest in sea-going ship;

d) Register according to the provisions of law on exploitation and utilization of marine resources, for security interests in the right to use the assigned sea area for aquaculture, property on the assigned sea area for aquaculture (hereinafter referred to as the right to use the sea area, property on the sea area).

4. Security interest database is a collection of data on security interests that have been registered and arranged and organized for access, use and management via electronic means (hereinafter referred as database).

5. A valid application is an application containing a complete and valid application form for registration and other documents that are part of the application as prescribed by this Decree.

6. A valid application form for registration is a form that fully and correctly declares the contents according to the form in the Appendix issued with this Decree (hereinafter referred to as the Appendix).

7. The certificate includes:

a) Certificate of ownership of movable property; certificate of registration of motor vehicles, heavy-duty vehicles; other documents certifying ownership of movable property as prescribed by law;

b) Certificate of registration of Vietnamese seagoing ships:

c) Certificate of registration of aircraft ownership;

d) Certificate of land use right or Certificate of ownership of houses and residential land use rights or certificate of land use rights and ownership of houses and other property on land or certificate of land use right or ownership of houses and other property on land or certificate of ownership of houses or construction work that are issued in accordance with the law on land, housing and construction;

dd) Documents certifying the right to use the sea area, the right to own property on the sea area in accordance with the law on exploitation and utilization of marine resources.

8. Registration cancellation is the registration agency's recording or updating in the register or in the database of the non-recognition of registration results from the time the security interest is registered due to grounds for deregistration.

Article 4. Security interests subject to registration

1. The following security interests are subject to registration:

a) Registration of mortgage of property, pledge of property, title retention as prescribed in the Civil Code, and relevant laws;

b) Registration under the agreement between the grantor and the secured party or at the request of the secured party, except for property lien;

c) Registration of notice of realization of collateral in case an asset is used to secure the performance of many obligations but many parties jointly receive the security or in cases where the grantor and the secured party have reached an agreement;

d) Registration of changes to registered information (hereinafter referred to as change registration); deregistration of registered information (hereinafter referred to as deregistration) for the case specified at Points a, b and c of this Clause.

2. The registration is done at the competent registry specified in Article 10 of this Decree.

Article 5. Principles of registration of and provision of information

1. The registration applicant must declare truthfully and take legal responsibility for the accuracy of the declared information.

2. The registry must strictly comply with its competence, tasks, grounds, procedures and time limit; must not require extra procedures not specified in this Decree; must not require submission of any additional documents or request to declare any additional information that this Decree does not specify in the registration application; must not require modification of the name of the security contract or the content agreed upon in the security contract. The registry shall take legal responsibility in case of violation of this principle.

The registry shall not be responsible for the name of the security contract or the content agreed upon in the security contract; not be held responsible for the registration, registration cancellation or re-registration after deregistration according to the contents of legally effective judgments or decisions of competent agencies or competent persons; shall not be liable for the registration of collateral being disputed assets or civil judgment enforcement assets but before or at the time of recording or updating the registered information in the Register or on the Database and the registry has not received the acceptance document or the document proving the competent authority's acceptance of dispute settlement or civil judgment enforcement.

3. The registration of land use rights and property on land; the right to use the sea area, property on the sea area or for aircraft and seagoing ships must ensure that the declared contents and documents in the registration application are consistent with the information on the Certificate, information kept at the registry office, except for the property specified in Clause 5 of this Article, Clauses 1 and 3 of Article 36 and Article 37 of this Decree.

4. In case of registration to secure the performance of an obligation of another person or also to secure the performance of an obligation of the grantor and of another person, the grantor must be the person having the land use right or right to use the sea area or is the owner of the collateral, except in the case of title retention.

The security for the performance of an obligation specified in this Clause shall be borne by the grantor and the secured party under their own responsibility as agreed upon in the security contract or in accordance with civil law.

5. As for registration of off-the-plan property; property on land that are not required by law to be registered for ownership and have not been registered as required; assets being annual trees, temporary works; movable property other than aircraft, seagoing ships, securities which have been centrally registered or in case of registration of notice of realization of collateral, the registry shall make the registration on the basis of the information stated in the application form for registration on the website. The registration applicant must take legal responsibility for the legality and accuracy of the information declared on the application form for registration.

6. Information on registered security interests shall be provided upon request or as prescribed by law.

Article 6. Validity time of registration

1. The validity of the registration is determined as follows:

a) The registration of land use rights and property on land is valid from the time when the registry records and updates the registered information in the cadastral register; the registration of property on land specified at Points a and b, Clause 2, Article 25 of this Decree is valid from the time when the registry records and updates the registered information in the Register of mortgage of off-the-plan property on land; the registration of aircraft is valid from the time when the registry records and updates the registered information in the Vietnam Aircraft Register; the registration of seagoing ships is valid from the time when the registry records and updates the registered information in the Vietnam National Register of sea-going ships; the registration of movable property other than aircraft, seagoing ships or securities which have been centrally registered or for the case specified at Point dd, Clause 1, Article 44 of this Decree is valid from the time when it is updated to the Database.

The registration of the right to use the sea area and property on the sea area is valid from the time when the registry records and updates the registered information in the Register or in the Database in accordance with the law on exploitation and utilization of marine resources;

b) The validity period of the registration commences from the validity time of the registration to the time of deregistration.

The validity period of the registration is the basis for determining the period in which the security interest takes effect against a third party as prescribed in the Civil Code, except for the case where determination of the period against the third party does not terminate Clause 2 of this Article and the case of registration of notice of realization of collateral specified in Clause 4 of this Article;

c) The registration of changes does not change the validity time or terminate the validity of the registration, except in the case of adding collateral or adding secured obligations or changing information or correcting information due to the fault of the registration applicant about the chassis number of the road motor vehicle and other information specified in Clauses 3, 4, 7 and 8 Article 45 of this Decree, the validity time for the changed content is the time when the registry office records or updates the changed content in the Registry or in the Database.

In case of registration of change of the grantor or the secured party due to the transfer of part of the right to claim debt or a part of the obligation specified in Clause 3, Article 18 of this Decree, it shall not change or terminate the validity of the registration as to the registered content belonging to the part of the right to claim debt, the part of the obligation that the parties do not agree on the transfer;

d) In case of deregistration, the validity of the registration shall cease from the time the registry records and updates the deleted contents in the Registry or in the Database;

dd) Where an asset is used to secure the performance of more than one obligation, the registration for the next obligation shall not change or terminate the validity of the registration for the obligation already registered before;

e) In case of registration cancellation, the registration is not valid. In case a part of registered content is deregistered, it will not change or terminate the validity of the registration for other registered content.

In case the registration has been deregistered but then re-registered according to Clause 3, Article 21 of this Decree, the validity time and validity period of the registration before the deregistration will not change or terminate.

2. The validity against a third party of a security interest already registered with the initial registry shall not terminate in the following cases:

a) The security interest in securities that have not been centrally registered has been registered at a competent authority specified in Clause 5, Article 10 of this Decree, and then this asset becomes centrally registered securities in accordance with regulations of law on securities, continue to be used to secure the performance of obligations for the same secured party or jointly secured parties and be registered at the competent authority specified in Clause 4, Article 10 of this Decree;

b) The security interest in securities that have been centrally registered has been registered at a competent authority specified in Clause 4, Article 10 of this Decree, and then this asset becomes non-centrally registered securities in accordance with regulations of law on securities, continue to be used to secure the performance of obligations for the same secured party or co-secured parties and be registered at the competent authority specified in Clause 5, Article 10 of this Decree;

c) The security interest in circulating goods in the ordinary course of business, components and supplies has been registered with the competent authority specified in Clause 5, Article 10 of this Decree, and then installed, assembled, manufactured, processed or otherwise processed to form new asset and this asset is used to secure the performance of obligations, registered with the competent authority specified in Clause 1 of this Article or Clause 2 or Clause 3 or Clause 6 Article 10 of this Decree where the value of circulating goods in the ordinary course of business or the value of components and supplies to be used to secure the of obligations to the original secured party or co-secured parties;

d) Mortgage of property rights arising out of house sale contracts or from sale contracts or other contracts on transfer of ownership of other property on land (hereinafter referred to as sale contracts); other property on land) which have been registered with a competent authority specified in Clause 5, Article 10 of this Decree, then transferred to the registration of mortgage of houses or mortgage of other property on land specified at Point b, Clause 1, Point b, Clause 2 and Clause 5, Article 26 of this Decree.

3. In case of duplicate registration as prescribed in Article 49 of this Decree, the validity of the registration shall be determined according to the earliest registration.

4. Registration of notices of realization of collateral is valid from the time the registry records and updates the notices in the Registry or in the Database; shall cease to be effective from the time the registry records, updates the contents of the deleted notice in the Registry or the Database or from the time the security interest is deregistered.

The validity of the registration specified in this Clause is to notify and make public the realization of collateral to the grantor, co-secured parties or to other organizations and individuals; is not a basis for determining the validity of the security interest against a third party.

Article 7. Language used in registration and provision of information

1. Forms, documents and declarations in registration and provision of information must be made in Vietnamese or in both Vietnamese and foreign languages, if so provided for by law.

In case the registration application contains documents in a foreign language, it must be accompanied by a notarized Vietnamese translation or certified translator's signature, except for the cases specified in Clauses 2 and 3 of this Article.

If the documents in the registration application and the request for information provision are made in Vietnamese and a foreign language, the Vietnamese version shall be used for registration and information provision.

In case the languages used in registration and provision of information, subject to relevant laws, are both Vietnamese and a foreign language, and the documents in the registration application and request for information provision are made in both languages, the Vietnamese version and the foreign language version are equally valid. If there is any discrepancy between these two versions, the Vietnamese version shall prevail.

2. Where the registration applicant or the information requester is a foreigner, an organization of foreign nationality or established under foreign law and information of this entity is not written in English or in other Latin letters, the full name of the individual shown on the passport or a valid document in lieu of the passport shall be declared; and the name of the organization shown on the decision of the competent authority of the foreign country shall be declared.

3. In case the collateral has its proper name that is not in Vietnamese but is consistent with relevant laws of the Socialist Republic of Vietnam or a legally effective decision of the competent authority of the Socialist Republic of Vietnam, the proper name of the property shall be declared.

4. Documents specified in this Article are not subject to consular legalization.

Article 8. Registration applicants, information requesters

1. The registration applicant includes the secured party, the grantor; the liquidator; asset management enterprise in case the insolvent enterprise or cooperative lends property to another person but fails to apply for registration (hereinafter referred to as the asset management enterprise).

2. The registration applicant in case of change registration includes the person specified in Clause 1 of this Article; new secured party in case of change of secured party; the successor in case the grantor or the secured party is a reorganized legal entity; the new grantor in case of change of the grantor and with the consent of the secured party, unless the new grantor is the successor under the provisions of the Civil Code or another person who has established the right as per the law.

3. The registration applicant in case of deregistration includes the person specified in Clauses 1 and 2 of this Article; the legal transferee of the collateral being the land use right, the right to use the sea area, the legal transferee of collateral being other property (hereinafter referred to as the lawful transfer of the collateral) without becoming the new grantor; civil judgment enforcement agencies, executors, other competent authorities, and other competent persons as prescribed by law.

In case the recipient lawfully transfers the collateral or a competent authority, the competent person specified in this Clause only requests the withdrawal of one or a number of collateral in order to deregister this property, this entity shall be identified as the registration applicant in case of change of registration.

4. Registration of pledge of property, deposit, collateralization, or deposit on guarantee in case where the law on performance of obligations stipulates so or there is such an agreement in the security contract, the registration applicant is the secured party, unless otherwise agreed by the grantor and the secured party.

5. The registration applicant of notice of collateral realization is the secured party.

6. Information requesters include registration applicants specified in this Article and other agencies, organizations and individuals that need information about security interests.

7. Registration applicants and information requesters specified in this Article may register themselves, make information requests themselves or through their lawful representatives.

In case of registration or information request through a representative, the document containing the representative's content must be included in the registration application, the application for information provision (01 original or 01 certified true copy or 01 original copy with the original for comparison), except for the case of registration through the online registration account of the representative specified in Clause 2, Article 24 of this Decree.

8. Where a branch of a legal entity, a branch or transaction office of a legal entity being a credit institution (hereinafter referred to as branch of juridical person) is assigned by the legal entity to apply for registration, request for information provision under the charter, operating regulations or as authorized or appointed by the legal representative of the legal entity, this branch shall put its name in the application form for registration, information request form as the registration applicant or information requester. In this case, the document containing the legal entity's assignment to the branch to perform the functions of the legal entity in the registration application or request for information provision is a document that must be included in the registration application, the application for registration and the application for information provision (01 original or 01 certified true copy or 01 copy enclosed with the original for comparison).

9. In case the performance of an obligation is secured with property belonging to a sole proprietorship in which the registration applicant is the grantor, the registration applicant may be the owner of the sole proprietorship or the sole proprietorship.

Article 9. Rights and obligations of registration applicants, information requesters

1. Rights of registration applicants, information requesters:

a) Receive registration results, information provision results; check and compare registered and provided information; request the registry specified in Clause 2, Clause 3 or Clause 5, Article 10 of this Decree to issue a copy of the registration certification document, in case the registration falls under this registry;

b) Request the registry to reply in writing about the refusal to register, refuse to cancel registration, refuse to re-register after deregistration or refuse to provide information in accordance with Articles 15, 18, 20, 21 or 51 of this Decree;

c) Request the registry to correct erroneous information in the registered information due to the fault of the registry or request to change information containing errors due to the fault of the registration applicant;

d) Use registration results and information provision results to exercise their lawful rights and fulfill obligations at a competent agency or organization; to establish and perform civil transactions;

dd) To be exempt from the obligation to pay fees, pay service charges, and other payment obligations if so required by the law on fees and charges, the law on prices and other relevant laws;

e) File complaints, whistleblowing reports, lawsuits or claims for damages in accordance with relevant laws in case the registry refuses to register, refuses to deregister, or refuses to re-register after deregistration, refuses to provide information specified at point b of this clause or refuses to perform the exemption from the obligation to pay fees, pay service charges or other payment obligations specified at point dd of this clause; make registration for change, deregistration, registration cancellation or re-registration after registration cancellation without justifiable grounds specified in this Decree.

2. Obligations of registration applicants, information requesters:

a) Declare and provide information truthfully, completely and accurately in the application form for registration, information request form and take responsibility for this information; take responsibility for the name of the security contract, the content agreed upon in the security contract, other documents in the registration application;

b) Pay fees, pay service charges and other payment obligations in accordance with the law on fees and charges, the law on prices and other relevant laws; pay transfer fees, charges for using other non-cash payment services (if any) in case of payment of fees, service charges and other payment obligations by non-cash payment; payment of postal service charges in case registration applications, documents, registration results, copies of registration certification documents, information provision results are transferred or paid through the postal services; pay expenses in case of returning registration results, copies of registration certification documents, results of providing information by other means as agreed between the registry and the registration applicant, the information requester specified in Clause 1, Point c, Clause 2, Article 17 and Clause 2, Article 51 of this Decree; provide documents proving that they are exempt from the obligation to pay fees, pay service charges and other payment obligations specified at Point dd Clause 1 and Clause 3 of this Article;

c) Take responsibility for their actions in forging documents, signatures or seals in the registration application;

d) To be responsible for compensation for damage according to the grounds prescribed in the Civil Code and other relevant laws in the case mentioned in Point c of this Clause or in case of failure to register when there are grounds specified in Clause 1 of this Article that causes damage to the registry, to other organizations and individuals.

3. In the case specified at Point dd, Clause 1 of this Article, the registration applicant may choose to provide one of the following documents in the registration application in their discretion: Security contract or credit contract or another document containing information on eligibility to be exempted from the obligation to pay registration fees, service charges and other payment obligations (01 original or 01 certified true copy or 01 copy enclosed with the original for comparison). The submission of documents specified in this Clause is done only once in the registration of the same security interest.

4. Organizations and individuals that search by themselves the information specified at Point b, Clause 2, Article 50 of this Decree have the right to use the granted database user codes to look up information; and are obliged to pay the fee for granting the database user code in accordance with the law on fees and charges.

Article 10. Registry, information provider

1. Land registry affiliated to Services of Natural Resources and Environment, branches of land registry (hereinafter referred to as land registry) shall register and provide information on security interest in land use right and property on land as prescribed in Article 25 of this Decree.

2. The Civil Aviation Administration of Vietnam affiliated to the Transport Ministry shall register and provide information on security interest in aircrafts as prescribed in Article 38 of this Decree.

3. Vietnam Maritime Administration or Maritime Sub-Administration, Maritime Administration of Vietnam Maritime Administration affiliated to the Ministry of Transport (hereinafter referred to as Vietnam sea-going ship registry) shall register and provide information on security interest in seagoing ships as prescribed in Article 41 of this Decree.

4. VSDC shall register and provide information on security interests in form of centrally registered securities in compliance with law on securities.

5. Transaction and asset registration centers of the National Registration Agency for Secured Transactions affiliated to the Justice Ministry (hereinafter referred to as asset registration center) shall register and provide information about security interest in movable property other than aircraft, sea-going ships, centrally registered securities (hereinafter referred to as movable property) and other cases as prescribed in Article 44 of this Decree.

6. The determination of the authority competent to register and provide information on security interests in the right to use the sea area and property on the sea area shall comply with the provisions of the law on exploitation and utilization of marine resources.

7. The determination of the authority competent to provide information in case organizations and individuals look up information themselves through database user codes and in information provision activities between competent agencies, competent persons with the registry shall comply with the provisions of Clause 2, Article 50 and Article 52 of this Decree.

Article 11. Duties and powers of registry, information provider

1. Register on the case by case basis and according to the competence specified in Articles 4 and 10 of this Decree; issue a copy of the registration certification document for the case specified at Point a, Clause 1, Article 9 of this Decree; correct erroneous information in the registered information.

2. Provide information about security interests.

3. Refuse to register, refuse to provide information only in cases where there are grounds specified in Articles 15 and 51 of this Decree.

4. Transfer relevant documents to competent agencies for settlement in accordance with law in case documents, signatures and seals in registration application show signs of forgery.

5. Registration cancellation, re-registration after registration cancellation as prescribed in Article 21 of this Decree.

6. Update and store information in records, databases.

7. Collect, pay, manage and use fees, service charges and other payment obligations upon registration and provision of information in accordance with the law on fees and charges, the law on prices and other relevant laws.

8. Lodge complaints and file whistleblowing reports in accordance with law.