CIRCULAR NoCIRCULAR No. 04/2002/TT-BTP OF FEBRUARY 22, 2002 GUIDING THE COMPETENCE, ORDER AND PROCEDURES FOR THE REGISTRATION OF AND THE PROVISION OF INFORMATION ON, FINANCIAL-LEASING ASSETS AND THE STATE MANAGEMENT OVER THE REGISTRATION OF FINANCIAL-LEASING ASSETS
Pursuant to the Government’s Decree No. 38/CP of June 4, 1993 on the functions, tasks, powers and organization of the Ministry of Justice;
Pursuant to Article 19 of the Government’s Decree No.16/2001/ND-CP of May 2, 2001 on organization and operation of financial-leasing companies;
With a view to publicizing information on financial-leasing assets, creating a legal basis for the protection of legitimate rights and interests of the parties to financial-leasing contracts as well as involved individuals and organizations;
The Ministry of Justice hereby guides the competence, order and procedures for the registration of, and the provision of information on, financial-leasing assets as well as the State management over the registration of financial-leasing assets as follows:
I. GENERAL PROVISIONS
1. Scope of application
This Circular guides the following issues:
1.1. The competence, tasks and powers of the National Department for Registration of Security Transactions under the Justice Ministry and its branches in localities (hereinafter called the Registration Department and its branches for short) in the registration of, and the provision of information on, financial-leasing assets.
1.2. The order and procedures for the registration of, and the provision of information on, financial-leasing assets;
1.3. The State management over the registration of, and the provision of information on, financial-leasing assets.
2. Financial-leasing asset-registering and information-providing agencies
2.1. The agencies competent to register financial-leasing assets and provide information thereon are the Registration Department and its branches.
2.2. The Registration Department and its branches shall be competent to register financial-leasing assets and provide information thereon at the requests of individuals and organizations throughout the country. Therefore, the registration and information-provision requesters shall have the right to select either the Registration Department or its branches to make the registration of, or provide information on, financial-leasing assets.
The registration of, and the provision of information on, financial-leasing assets at the Registration Department or its branches shall be equally valid.
3. Tasks and powers of the Registration Department and its branches in the field of registration of, and the provision of information on, financial-leasing assets
3.1. The Registration Department and its branches shall have the following tasks and powers in the registration of financial-leasing assets:
a/ To register financial-leasing assets;
b/ To register changes in the already registered contents;
c/ To register extensions;
d/ To cross out the registration;
e/ To grant registration certificates and copies thereof;
f/ To correct errors in the registration applications and registration certificates;
g/ To annul registration certificates in cases where the registration requesters declare in the registration applications contents which are untruthful or incompatible with the agreements in the financial-leasing contracts;
h/ To collect the registration fee;
i/ To refuse to make registration in cases where the registration requesters fail to make full declaration on the items which must be declared according to the form issued together with this Circular (not printed herein) or fail to pay the registration fee;
j/ To archive dossiers and documents and preserve the already registered information.
3.2. The Registration Department and its branches shall have the following tasks and powers in the provision of information on financial-leasing assets:
a/ To provide information on financial-leasing assets registered at the Registration Department and its branches;
b/ To collect the information-provision charge;
c/ To refuse to provide information on financial-leasing assets in cases where the information-provision applicants fail to make full declaration on the items which must be declared according to the set form, or fail to pay the information-provision charge.
3.3. The Registration Department and its branches shall be competent to settle complaints and denunciations according to the provisions in Section IX of this Circular.
4. Responsibilities of the registrars
The registrars shall have the following responsibilities:
4.1. To make registration and provide information in strict compliance with the order and procedures prescribed in this Circular.
4.2. To register accurately the contents already declared in the registration applications;
4.3. In cases where the registrars fail to register accurately the contents declared in the registration applications, thus causing damage, they shall have to make compensation therefor according to law provisions on public employees’ liability to pay compensation for damage.
5. Objects of registration
The following assets, after being leased by financial-leasing companies on the Vietnamese territory or overseas under financial-leasing contracts, must be registered at the Registration Department or its branches:
5.1. Machinery, equipment, production chains;
5.2. Automobiles, sea- and river-going ships and other transport means;
5.3. Other movables as prescribed in Clause 2, Article 181 of the Civil Code.
6. Principles of registration of, and the provision of information on, financial-leasing assets
6.1. Financial-leasing assets shall be registered on the basis of the contents declared in the applications of the registration requesters. The registration requesters shall have to make accurate and full declaration in accordance with agreements of the parties to the financial-leasing contracts and shall take responsibility for the contents already declared in the applications.
A valid registration application is the one with full declaration made according to the set form and contents compatible with the already signed financial-leasing contract.
6.2. The Registration Department and its branches shall have to register promptly and accurately the contents already declared in the applications and create conditions for the registration of, and the inquiry into information on, financial-leasing assets.
6.3. The information stored in the database on financial-leasing assets and financial-leasing asset-registers shall be provided to all individuals and organizations that have the demand therefor.
7. Effective duration of the registration of financial-leasing assets
The effective duration of the registration of financial-leasing assets shall be counted from the date the Registration Department or its branch grants the financial-leasing asset- registration certificate till the time of financial lease termination.
8. Legality of the registration of financial-leasing assets
8.1. The registration of financial-leasing assets shall be valid for the third party within the registration’s effective duration prescribed in Clause 7 of this Section. A financial-leasing asset- registration certificate shall serve as a legal basis for the lessor to request the third party that has received financial-leasing assets without his/her consent to return those assets to the lessor.
8.2. In cases where the financial-leasing assets are not registered at the Registration Department and its branches as prescribed in this Circular, pursuant to Article 139 of the Civil Code, the lessees may request the courts to issue decisions forcing the lessors to make registration within 7 days as from the dates the courts’ decisions take effect; past this time limit, if the lessors still fail to make registration, the financial-leasing contracts shall be invalidated. The lessors shall have to pay compensation for damage, if any, to the lessees.
9. Registration and information-provision requesters
9.1. The registration requesters in cases prescribed at Points 3.1.a, 3.1.b, 3.1.c, 3.1.d and 3.1.e, Clause 3 of this Section (referred collectively to as registration requesters) are the lessors in the financial-leasing contracts, including:
a/ State-owned financial-leasing companies;
b/ Joint-stock financial-leasing companies;
c/ Financial-leasing companies of credit institutions;
d/ Joint-venture financial-leasing companies;
e/ 100% foreign-invested financial-leasing companies.
f/ In cases where financial-leasing companies enter into a syndicated financial lease, they must reach agreement on nominating one of them to represent the lessors to apply for registration and at the same time, make full declaration on the syndicating financial-leasing companies in the application’s annex.
9.2. All individuals and organizations wishing to inquire into information on financial-leasing assets shall have the right to request the Registration Department or its branches to provide such information.
10. Responsibilities of the registration and information-provision requesters
10.1. The registration requesters shall have the following responsibilities:
a/ To make full declaration on the items in the registration applications. The contents of declaration in the applications must be accurate and compatible with agreements of the parties to financial-leasing contracts;
b/ To pay the registration fee as prescribed by law;
c/ In cases where the registration requesters inscribe in the applications those contents which are inaccurate or incompatible with agreements of the parties to financial-leasing contracts, thus causing damage, such requesters shall have to pay compensation to the damage sufferers;
10.2. The information-provision requesters shall have the following responsibilities:
a/ To make full declaration on the items in the information-provision applications or information self-inquiry-requesting cards;
b/ To pay the information-provision charge as prescribed by law;
c/ In case of self-inquiry into information on financial-leasing assets, the information-provision requesters shall have to strictly abide by the rules and regulations posted up at the Registration Department and its branches.
11. Registration fees and information-provision charges
11.1. Registration requesters shall have to pay the registration fees in the following cases:
a/ Registering financial-leasing assets;
b/ Registering changes in the already registered contents;
c/ Registering extensions;
d/ Requesting the correction of errors in the registration applications.
11.2. Individuals and organizations shall have to pay charges when requesting the provision of information on financial-leasing assets.
11.3. The collection levels of financial-leasing asset registration fee and information-provision charge shall comply with the regulations of the Finance and Justice Ministries.
II. ORDER AND PROCEDURES FOR REGISTRATION OF FINANCIAL-LEASING ASSETS
1. The registration requesters shall file applications for registration of financial-leasing assets with the Registration Department or its branches.
2. The filing of registration applications shall be effected by one of the following modes:
a/ Filing applications directly at the headquarters of the Registration Department or its branches;
b/ Sending applications by post in form of registered letters or express mails;
c/ Sending applications by fax. This mode shall apply in cases where the registration requesters are financial-leasing companies which have been registered in the list of regular customers of the Registration Department.
The Registration Department shall guide the procedures for registration into the list of its regular customers and organize such registration.
3. The registration requesters shall fully pay fees by one of the following modes:
a/ Making payment directly at the Registration Department or its branches after the registration applications are received by the registrars;
b/ Transferring money through the money-transfer post service and send the money-transfer papers together with the registration applications;
c/ Transferring money into accounts of the Registration Department or its branches that receive the applications and send the latter vouchers certifying the money transfer.
In cases where the registration requesters are on the list of regular customers of the Registration Department, the transfer of the registration fees into the accounts of the Registration Department or its branches that have received the applications shall be effected on a monthly basis, from the 25th to the last day of each month.
4. After receiving the registration applications, the registrars shall proceed with the following jobs:
4.1. Checking the declaration of items in the applications;
4.2. Checking the payment of fees;
4.3. Recording the time of receiving the applications (date, month, year), if such applications are valid and the fees have been paid as prescribed.
The time of direct receipt of application is the time when the registrars receive valid applications.
The time of receipt of applications by post is the time when the Registration Department or its branches receive the applications.
The time of receipt of applications by fax is the time when the applications are transmitted by fax.
4.4. In case of receiving applications by fax, before performing the jobs prescribed at Points 4.1, 4.2 and 4.3 of this Clause, the registrars shall determine whether the registration requesters are regular customers or not; if not, they shall not accept the registration applications;
4.5. In cases where the applications are filed directly at the Registration Department or its branches, after performing the jobs prescribed at Points 4.1, 4.2 and 4.3 of this Clause, the registrars shall give the registration requesters copies of the registration applications already inscribed with the application-reception time points and appointment slips for granting of registration certificates.
5. Within three days after receiving valid registration applications, the Registration Department or its branches that receive the registration applications shall have to grant financial-leasing asset-registration certificates to the registration requesters; in case of receiving registration applications by post or fax, the copies of the registration applications shall be attached thereto.
The Registration Department and its branches shall not grant certificates to registration requesters if detecting that the registration overlaps another financial-leasing contract.
The registration certificates shall be handed over directly to the requesters at the Registration Department or its branches that have received the registration applications or sent to the latter by post in form of registered letters.
III. ORDER AND PROCEDURES FOR REGISTRATION OF CHANGES IN THE ALREADY REGISTERED CONTENTS
1. In case of the following changes, the registration requesters must file applications for registration of changes in the already registered contents with the Registration Department or its branches that have granted them registration certificates in order to register such changes:
1.1. The lessors transfer their rights and obligations in the financial-leasing contracts to other financial-leasing companies.
1.2. The parties’ agreement on the amendment and/or supplementation of the financial-leasing contracts results in the alteration of the contents already declared in the financial-leasing asset-registration applications and other relevant applications.
2. The filing of applications for registration of changes and the registration fee shall comply with the provisions in Clauses 2 and 3, Section II of this Circular.
3. After receiving applications for registration of changes, the registrars shall proceed with the jobs specified in Clause 4, Section II of this Circular.
4. Within 3 days after receiving applications for registration of changes, the Registration Department or its branches that receive such applications shall have to grant certificates of registration of changes in the already registered contents to the registration requesters by the modes prescribed in Clause 5, Section II of this Circular.
IV. ORDER AND PROCEDURES FOR EXTENSION REGISTRATION
1. Within three months before the expiry of the effective duration of the financial-leasing asset registration, if the financial leasing is extended, the registration requesters shall file extension-registration applications with the Registration Department or its branches where those assets have been registered in order to register the extension.
2. The filing of extension-registration applications and the registration fee shall comply with the provisions in Clauses 2 and 3, Section II of this Circular.
3. After receiving extension-registration applications, the registrars shall proceed with the jobs specified at Clause 4, Section II of this Circular.
4. Within three days after receiving valid extension-registration applications, the Registration Department or its branches that receive the extension-registration applications shall grant extension-registration certificates to the registration requesters, clearly inscribing the extension-registration duration.
The granting of financial-leasing asset-extension registration certificates shall comply with the provisions in Clause 5, Section II of this Circular.
V. ORDER AND PROCEDURES FOR REGISTRATION CANCELLATION
1. The registration requesters shall have to file applications for cancellation of financial-leasing asset registration in the following cases:
a/ The financial-leasing contracts terminate ahead of time according to the provisions in Article 27 of Decree No. 16/2001/ND-CP of May 2, 2001 on organization and operation of financial-leasing companies. The filing of applications shall be effected before the dates of terminating the financial-leasing contracts;
b/ The registration’s effective duration expires. The filing of applications shall be effected before the date of expiry of the registration’s effective duration.
2. The filing of registration- cancellation applications shall comply with the provisions in Clause 2, Section II of this Circular.
The registration-cancellation requesters shall not have to pay the registration-cancellation fee.
3. Within three days after receiving the valid cancellation-registration applications, the Registration Department or its branches that receive such applications shall cancel the registration and grant certificates of financial-leasing asset registration cancellation to the requesters by the modes prescribed at Clause 5, Section II of this Circular.
4. Past the registration time limit, if the registration requesters file no applications for extension registration or registration cancellation, the Registration Department or its branches shall automatically cancel the registration, and grant registration-cancellation certificates only when receiving applications therefor.
VI. CORRECTION OF ERRORS
1. In cases where the registration requesters detect errors in the registration applications or registration certificates, they shall file written requests for the correction thereof with the Registration Department or its branches that have received their applications or granted them certificates so that the latter make amendments according to the contents declared in their written requests. In case of correction of errors in the already granted registration certificates, such certificates must be filed together with the correction requests.
2. The filing of written requests for error correction and the fee therefor shall comply with the provisions in Clauses 2 and 3, Section II of this Circular.
In case of correcting errors in the registration certificates, the Registration Department or its branches that receive the written requests shall not collect the error-correction fee.
3. After receiving written requests for correction of errors in the registration applications, the registrars shall delete the application-receiving time inscribed in the former registration certificates and write down the new application-receiving time being the time of receiving the written requests for error correction. The registration’s effective duration shall be calculated from the time the Registration Department or its branches grant the already corrected registration certificates.
4. With regard to errors in the already granted registration certificates, when correcting them, the registrars shall retain the registration time already inscribed in the granted registration certificates and proceed to correct the errors. The erroneous contents already corrected in the certificates must be affixed with stamps of the Registration Department or its branches that have corrected the errors.
In cases where corrections cannot be made directly on the erroneous contents, the registrars shall have to inscribe them in the error-correction column of the registration certificates.
5. Within 3 days after receiving the valid written requests for error correction, the Registration Department or its branches shall proceed to correct errors and return to the requesters the financial-leasing asset-registration certificates according to the modes specified in Clause 5, Section II of this Circular.
VII. ORDER AND PROCEDURES FOR THE PROVISION OF INFORMATION ON FINANCIAL-LEASING ASSETS
1. Domestic and foreign individuals and organizations as well as overseas Vietnamese that wish to inquire into information stored in the financial-leasing asset- registration books or database, may proceed to inquire into such information by one of the following modes:
1.1. Filing applications for information provision with the Registration Department or its branches;
1.2. Consulting or look for information by themselves in the registers at the Registration Department or its branches according to the rules and regulations posted up thereat.
2. The information-provision requesters shall be provided with information on financial-leasing assets, stored in the financial-leasing asset registers or database under the names of the lessees or the lessors.
3. The filing of information-provision applications and information-provision charges shall comply with the provisions in Clauses 2 and 3, Section II of this Circular.
4. After receiving applications for the provision of information on financial-leasing assets, the registrars shall check the applications and charge payment; if the applications are valid and charges have been paid according to regulations, the registrars shall seek for information in the financial-leasing asset registers or database. Within 3 days after receiving the valid applications, the Registration Department or its branches must provide information to the requesters.
In cases where the applicants request to be provided with information in writing, the registrars shall provide them with written information.
The provision of written information on financial-leasing assets shall be effected by the modes specified in Clause 5, Section II of this Circular.
VIII. STATE MANAGEMENT OVER THE REGISTRATION OF FINANCIAL-LEASING ASSETS
The Registration Department shall assist the Minister of Justice in exercising the State management over the registration of financial-leasing assets, covering the following activities:
1. Compiling and submitting to the competent agencies for promulgation or promulgating according to its competence legal documents on the registration of financial-leasing assets;
2. Guiding, directing and organizing professional training and fostering for registrars;
3. Issuing, managing and guiding according to its competence the use of, application forms, papers and registration books; organizing the management of database system on financial-leasing assets;
4. Conducting statistical work on the registration of financial-leasing assets, summing up and reporting to the Government on the financial-leasing asset registration work;
5. Settling complaints and denunciations about the registration of financial-leasing assets according to its competence;
6. Entering international cooperation in the field of registration of financial-leasing assets according to the assignment by the Minister of Justice.
IX. SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS
1. Settlement of complaints:
1.1. In the field of registration of and provision of information on, financial-leasing assets, the registration and information-provision requesters shall have the right to complain about decisions and/or acts of the Registration Department or its branches as well as the registrars and public employees of these agencies when having grounds to believe that such decisions and/or acts contravene laws and infringe upon their legitimate rights and interests.
1.2. The competence and time limit for the settlement of first-time complaints shall be effected as follows:
a/ The directors of branches shall have to settle complaints about decisions and/or acts of their own, the registrars or public employees working in their respective branches. Within 10 days after receiving complaints, the branch directors shall have to process them for settlement and notify the complainants thereof in writing; in case of not processing, they shall still have to notify the complainants thereof in writing, clearly stating the reasons therefor.
If within 30 days from the date of expiry of the settlement time limit prescribed in Article 36 of the Law on Complaints and Denunciations, the complaints have not been settled, or from the date of receiving decisions on the settlement of first-time complaints by the branch directors, the complainants disagree with such decisions, they may lodge their complaints with the Director of the Registration Department or initiate administrative lawsuits at courts as prescribed by law.
b/ The Director of the Registration Department shall have to settle complaints about decisions and/or acts of their own, the registrars or public employees working in the Registration Department. Within 10 days after receiving the complaints, the Director of the Registration Department shall have to process them for settlement and notify the complainants thereof in writing; in case of not processing, he/she shall still have to notify the complainants thereof in writing, clearly stating the reasons therefor.
If within 30 days from the date of expiry of the settlement time limit prescribed in Article 36 of the Law on Complaints and Denunciations, the complaints have not been settled, or from the date of receiving decisions on the settlement of first-time complaints by the Director of the Registration Department, the complainants disagree with such decisions, they may lodge their complaints to the Minister of Justice or initiate administrative lawsuits at courts as prescribed by law.
1.3. The competence and time limit for settlement of subsequent complaints shall be effected as follows:
a/ The Director of the Registration Department shall process and settle those complaints that have been settled by the branch directors but further lodged or have not been settled past the prescribed time limit. In these cases, the complainants must send their complaints together with copies of the decisions on complaint settlement by the branch directors or relating documents (if any) to the Director of the Registration Department.
Within 10 days after receiving the complaints, the Director of the Registration Department shall have to process them for settlement and notify the complainants thereof in writing as well as the branch directors who have earlier settled such complaints; in case of not processing the complaints for settlement, he/she must also notify such in writing, clearly stating the reasons therefor.
The time limit for complaint settlement by the Director of the Registration Department is 45 days from the date of processing the complaints. If within 30 days from the end of the settlement time limit prescribed in Article 43 of the Law on Complaints and Denunciations, the complaints have not been settled or from the date of receiving the complaint-settling decisions from the Director of the Registration Department, if the complainants disagree therewith, they may further complain with the Minister of Justice.
b/ The Ministry of Justice shall process and settle complaints about the complaint-settling decisions of the Director of the Registration Department, which are still complained about or have not been settled past the settlement time limit. Within 10 days after receiving the complaints, the Ministry of Justice shall process them for settlement and notify the complainants thereof in writing; in case of not processing the complaints for settlement, it shall still have to notify such in writing, clearly stating the reasons therefor.
The time limit for complaint settlement by the Justice Minister shall comply with the provisions of Article 43 of the Law on Complaints and Denunciations. The Justice Minister’s complaint-settling decisions shall be the final ones.
2. Settlement of denunciations
2.1. In the field of registration of and provision of information on, financial-leasing assets, citizens shall have the right to denounce with the competent agencies, organizations and individuals law-breaking acts of the registrars or public employees of the Registration Department and its branches, which cause or threaten to cause damage to their own or other persons’ legitimate rights and interests.
The denouncers may send the denunciations to or denounce directly with, competent agencies, organizations or individuals according to the provisions of law. In the above-mentioned cases, the denouncers shall have to state clearly their names, addresses and denunciation contents.
2.2. The competence for denunciation settlement shall be effected as follows:
a/ In cases where the registrars or public employees working at branches are denounced for violating law in the registration of or provision of information on, financial-leasing assets, the branch directors who directly manage the denounced registrars or public employees shall have to settle the denunciations.
b/ In cases where the registrars or public employees working at the Registration Department are denounced for violating law in the registration of or provision of information on, financial-leasing assets, the Director of the Registration Department shall have to settle the denunciations.
c/ The Ministry of Justice shall process and settle denunciations according to the provisions of the Law on Complaints and Denunciations and current guiding documents.
2.3. The denunciation-settlement time limit shall be effected as follows:
Within 10 days after receiving the denunciations, the denunciation-receiving agencies shall have to process them for settlement; in cases where the denunciations fall beyond their settling competence, they must transfer such denunciations to the competent agencies for settlement and notify the denouncers thereof in writing.
The denunciation-settlement duration shall not exceed 60 days as from the date of processing the denunciations for settlement; for complicated cases, the settlement duration shall not exceed 90 days as from the date of processing the denunciations for settlement.
X. IMPLEMENTATION ORGANIZATION
1. This Circular takes effect as from March 8, 2002.
2. Assets already leased on the basis of financial-leasing contracts which have been signed before the effective date of this Circular and have not yet expired, must also be registered according to the provisions of this Circular.
3. To issue together with this Circular forms for registration of and provision of information on, financial-leasing assets (not printed herein).
4. In the course of implementation, if problems arise, individuals and organizations are requested to report them to the Justice Ministry for study and settlement.
Minister of Justice
NGUYEN DINH LOC