Decree 11/2012/nd-Cp: About The Modification, Addition Of Some Articles Of Decree No. 163/2006/nd-Cp On December 29, 2006 The Government Guaranteed Transactions

Original Language Title: Nghị định 11/2012/NĐ-CP: Về sửa đổi, bổ sung một số điều của Nghị định số 163/2006/NĐ-CP ngày 29 tháng 12 năm 2006 của Chính phủ về giao dịch bảo đảm

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Article 1. Modifying, supplementing a number of articles of Decree No. 163/2006/ND-CP on December 29, 2006 by the Government on the secured transactions as follows: 1. Amend paragraph 1 and paragraph 9 of article 3 as follows: "1. The secured party is the party used its owned property, use its land use right , used the prestige or the commitment to work for the receiving party to ensure the implementation of the civil service of himself or of others, including the parties pledge, mortgage, deposit party party, parties, party bets, party deposit guarantee and socio-political organizations at the facility in case of trust ".

"9. the valuable papers include stocks, bonds, bills, promissory notes, certificates of deposits, checks, certified funds, or other papers as provided by law, are worth the money and allowed transactions".

2. Amend paragraph 1 and paragraph 2 article 4 as follows: "1. The secured property is an existing property or property formation in the future that the law does not prohibit the transactions".

"2. The property formation in the future include: a) the property is formed from the loan;

b) assets are in the form or being created legally at the time of concluding the secured transactions;

c) that form the property and subject to registration of ownership, but after the time of delivery of the secured transaction, then that property is registered under the provisions of the law.

The property formation in the future do not include rights to use the land ".

3. Supplement 7a as follows: "Article 7a: notification of mortgage of motor transport, roads, means of inland marine, rail transport 1. After registering the mortgage of motor transport, roads, means of inland waterway transport, railways and the registration request was filed charges requesting a copy of the registration certificate documents the transaction secured transaction registry shall ensure January mailed copies of registration documents to the competent State authorities circulated registration the means of transport. The State Agency has the authority to register vehicles to update information on the means of transport being the mortgage right in on getting a copy of the registration certificate text guaranteed offer.

2. After you delete the registration of the mortgage and the person requesting deletion of registration was filed charges requesting the certificate text copy delete register then secured transactions registry for secured transactions send 1 copy certified text delete register to the competent State agencies to register vehicles to updated information on means of transport which was deleted as collateral.

3. In case of request, grant the change of transport registration or transfer of ownership for the vehicles being recorded as collateral that are not yet certified in writing delete transaction guarantee registration, the owner must present transport 1 copy have the endorsement or 1 copy to the main office with the collation a text or agree to accept the prize of mortgages that transport ".

4. Modify Article 8 as follows: "article 8. Guaranteed service by the property formation in the future 1. When the secured party has the right to own part or all of the secured property formation in the future then the receiving party has secured the rights to a part or the whole of the property. With regard to property law to register ownership of which the secured party is not yet registered, then the receiving party ensures still has the right to handle the property when due process.

2. In case the property formation in the future be handled to perform the civil obligation, the competent State agencies to base the results of processing the secured property to perform the procedure of transfer of ownership, the right to use the property to the buyer, the person receiving the property as soon as the results of processing the secured property ".

5. Supplement 8a as follows: "Article 8a. Ensure the implementation of obligations arising out of the future 1. In the contract guarantee service arises in the future, the parties are not required to a specific agreement on the scope of the obligation secured and the time limit for implementation of the obligation secured, unless other agreements or law otherwise.

2. When the obligation is formed, the parties do not have to register to change the content of the transaction registered warrants ".

6. additional paragraph 4 Article 12 as follows: "in cases where the secured party is the person who must enforce the judgment, the party secured the executed projects and the implementation of the obligations of the secured party to the receiving party already guaranteed civil enforcement agencies have the authority to confirm the result execution, the Paper confirmed that replace the text agree deleting registered trading of warrants guarantee in case the request to register the secured transaction is secured party ".

7. Amend article 14 paragraph 3 as follows: "3. With respect to the secured transaction is concluded before the split, split, merge, merge or convert entities (hereinafter the reorganized legal person), which is still in force, the parties not signing back guaranteed offer that when the reorganized legal person.

With respect to the secured transaction, the new entity have registered to present the text of the authorized agency of the reorganized legal person to make changes to registration under the provisions of the law ".

8. Modify Article 19 paragraph 3 as follows: "3. In case of receiving valuable papers, the pledge party pledge has the right to request the release of valuable papers or securities depository Center ensure the monitoring rights of pledge for valuable papers.

In the case of the release of valuable papers or securities depository Center violated the commitment to ensure the monitoring of rights pledge that cause damage to the receiving party pledge shall be liable in damages for the receiving party pledge, unless agreed otherwise.

In the case of assets to pledge as securities subject to registration, the depository shall pledge registration at the registry for secured transactions are made under the provisions of the law of secured transactions registry and the registration, custody of securities in securities depository Center are made pursuant to the securities legislation ".

9. Supplement Article 20a as follows: "article 20a. Keep papers on collateral in case the collateral is the ship, aircraft or vehicles specified in Article 7a of this Decree, the mortgage side kept the original ship ownership certificates, certificates of registration of vessels, registered Paper Vietnam vehicles within the mortgage contract take effect ".

10. Amend article 21 as follows: "article 21. Collateral is being held in the case of mortgage assets are being detained under the provisions of article 416 of civil laws, the parties held responsible for delivery of the property that is held for the receiving party to handle mortgage under the provisions of the law of the receiving party, after the party had obligation mortgage or have completed the obligation for parties to take hold ".

11. additional clause 5 Article 22 the following: "5. In the case of claiming the debt is transferred according to the provisions of article 313 the civil code, the parties not signing back guaranteed offer. When making registration changes right guaranteed under the provisions of the law of the receiving party shall transfer the right to reclaim the debt show the collection rights transfer contracts to prove the change ".  

12. Supplement article 27 paragraph 3 as follows: "3. in case of mortgage or third party investments in collateral (hereinafter called who have invested in collateral), but does not use the additional investment assets to secure civil service resolves as follows : a) the case of the section increased due to property investment can separate from mortgage assets without loss of or decrease in value of the collateral, the secured assets when dealing with people who have invested in collateral has the right to split the section additional investment property out of the collateral , unless a different agreement.

b) where additional assets invested are inseparable from the collateral or if separate will lose or reduce the value of mortgage assets they have invested in collateral is not part of the property increased because of investments out of the collateral but when handling the collateral they have invested in collateral payment priority part of value added, unless other agreement ".

13. Amend Article 47 as follows: "article 47. Handling party assets, guarantee the disposal of assets of the guarantor as defined in article 369 civil law are as follows: 1. In case the parties have agreed on the pledge, mortgage assets to ensure service in guarantee, the mortgage property , mortgages are processed according to the provisions in chapter IV of this Decree.

2. where the parties have not agreed about the pledge, mortgage assets to ensure service in guarantee, the guarantor must communicate his owned property to guarantee the handle according to the requirements of the guarantee, unless a different agreement. If guarantor fails to deliver then guarantee property has the right to sue under the provisions of the law.

3. At the time of handling property of the guarantor if the guarantor has no property to handle or account proceeds from the disposal of assets is not enough payment obligation of guarantee obligation within the scope of the guarantee, the guarantee to have the right to request the guarantor to the property after the time for processing to continue processing Justice ".

14. additional Article 47a as follows: "article 47a: order of priority of payments between the parties the same guarantee and guarantee right to pledge, on getting mortgage, deposit receipt, by the party receiving the signed escrow beneficiary, bet 1. The parties jointly guarantee has the same order of priority of payment. The proceeds from the disposal of assets of the guarantor are divided to parties together receive the guarantee according to the rate corresponding to the obligation to guarantee.


2. In case the contract of pledge, mortgage contracts, contract signed, contract deposit, escrow contract bet was registered under the provisions of the law of the receiving party, the receiving party to pledge collateral, on receipt of a deposit, on the receiving side to receive bets, sign the escrow payment is preferred before the guarantee.

3. In case the contract of pledge, mortgage contracts, contract signed, contract deposit, escrow contract bet not registered under the provisions of the law, the order of priority of payment between the guarantee with the receiving party pledge, mortgage, on the right to receive deposits, on receipt of signed betting Escrow receiving party, is determined in the order establishing the secured transactions ".

15. Amend paragraph 4 and paragraph 6 supplements Article 58 the following: "4. The handle secured property (hereinafter referred to as the handle property) is guaranteed right or the person receiving authorization to secured parties, unless the parties to the transaction to ensure agreed.

Who handles the property content base has been secured in contract agreement to proceed with processing the secured property without the need to have written authorization to handle the assets of the party ".     

"6. In the case of secured property is land use, housing organizations, individuals purchased the property secured or guaranteed asset recognized alternative to the implementation of the obligations of the secured party must be subject to the certification of land use rights, ownership of housing and other assets associated with the land; the case of the Organization, the individual is not subject to being granted a certificate of land use rights, ownership and other properties tied to the ground then just enjoy the value of land use, housing values ".

16. Amend Article 61 paragraph 1 as follows: "1. Before handling the secured property, who handled the property must notify in writing about the handling of the secured property for the parties jointly address other secured party provide or sign a written notice about the disposal of secured property as defined by the law on registration of transactions guaranteed ".

17. Supplement Article 64a as follows: "article 64a: Sell the secured property 1. In case the agreed method of handling the secured property is property auction the auction is performed according to the rules of the law of property auction.

2. where the parties to the agreement on the sale of assets not through the auction method of selling secured property is made according to the regulations on property sales in the civil code and the provisions of the following: a) the parties have the right to negotiate, or through organizations that function valuation of property to have the basis of determining the sale price of the property guaranteed;

b) party secured payment for the secured party the amount of the difference between the sale price of the secured property with the value of the secured obligation, unless other agreement;

c) after property sales results, then the property owner and the party has the right to handle the secured property is responsible for implementation of the procedures prescribed by law to transfer ownership of property to the buyer of the secured property ".

18. additional Things 64b: "What major assets: 64b guaranteed to substitute for the implementation of the obligations of the secured party in case the parties to the agreement on the main asset to replace for the implementation of the obligations of the secured party, the main recipients of the secured property are as follows : 1. The parties have the right to negotiate, or through organizations that have the function of property valuation to determine the base value of the secured property;

2. In case the value of the secured property is greater than the value of the secured obligations, then the receiving party must guarantee the payment of the amount of that difference to the secured party, unless other agreement;

3. the main beneficiary of the secured property to replace the service must present documents proving the right to guaranteed asset disposal and processing results of the secured property for the competent State agencies when the transfer of ownership, the right to use the secured property ".

19. additional paragraph 3 and paragraph 4 to article 68 as follows: "3. In case of mortgage of land use only without the mortgage assets attached to land and land users as owners of the assets associated with the land, the property attached to land is treated simultaneously with land use , unless a different agreement.

 The parties have the right to negotiate, or through organizations that function valuation of property to have the basis of valuation of land use rights, property attached to the land. The proceeds from the disposal of property that is sure to be the first payment to the owner of the property attached to the land, unless a different agreement.

4. In case of mortgage of land use only without the mortgage assets tied to the land and the land user is not the owner of the property tied to the ground stroke when handling land use, owners of assets attached to land continued use of land according to the agreement between the user and the owner of the assets associated with the land, unless a different agreement. Rights and obligations between the parties to a mortgage and the owner of the property associated with the land is transferred to the buyer, the main recipients of land use ".

20. Deregulation in paragraph 2 to article 10 and the phrase "and number" in article 20 paragraph 1 b.

21. Replace the phrase "motor transport" by the phrase "motor transport by road, inland marine vehicles, rail transport" in article 20 paragraph 1 b.

22. Replace the phrase "a mortgage of land use rights, the right to use the forest, production forest ownership is the third person's plantation" by the phrase "a mortgage of land use rights, the right to use the forest, production forest ownership forest planting to ensure the implementation of the obligations of another person" in paragraph 4 to article 72.

Article 2. Terms of implementation 1. The Decree has effect from the date of April 10, 2012.

2. The Ministry of Justice is responsible for: a) presiding, in coordination with the State Bank of Vietnam, the Ministry of natural resources and the environment guide the regulation on the handling of the secured property;

b) building and the Prime Minister issued a directive on strengthening the effective enforcement of the law on secured transactions in order to enhance the safety of secured lending activities;

c) presiding, in coordination with the State Bank of Vietnam to check the observance of the provisions of the law on the establishment, the secured transaction; Guide, directing, training, professional training, profession of the law in the field of secured transactions for organizations and individuals concerned;

d) perform other tasks to organize the implementation of this Decree.

3. Ministers, heads of ministerial agencies, heads of government agencies, the Chairman of the provincial people's Committee, central cities and other organizations and individuals concerned is responsible for the implementation of this Decree.