,
Toby Nicholas Rees 
and
Thinh Phu Dan
Originally published 10 November 2010
Keywords: Decree 83, registration, secured transactions, secured assets
On 23 July 2010 the Government issued Decree No. 83/2010/ND-CP on registration of secured transactions (Decree 83). Registration of a secured transaction means the recording in a secured transaction register or entry into a secured transactions database by registry of assets over which security has been created to secure the performance of a civil obligation owed to a secured party.
The salient provisions of Decree 83 are discussed below.
Scope of Regulation
Decree 83 contains provisions on the procedures for registration of, and the provision of information on, secured transactions involving secured assets. It also provides for the organisation, and sets out the tasks and powers of secured transaction registries and the State management of the registration of secured transactions.
Secured Transactions Subject to Registration
The following secured transactions are subject to registration:
- Mortgage of land use rights;
- Mortgage of planted production forests;
- Pledge or mortgage of aircraft:
- Mortgage of seagoing ships;
- Other cases as specified by law.
Secured transactions involving secured assets which do not fall into the foregoing cases may be registered if requested by organisations or individuals.
Notably, the former requirement under Decree No. 163/2006/ND-CP to register a mortgage of a single item of property as security for performance of several obligations has been removed.
Validity Duration of Secured Transaction Registration
The registration of a secured transaction will be valid from the time of registration to the time of deregistration. Deregistration may be done by written request of the party requesting such deregistration.
Time of Secured Transaction Registration
- For security over assets comprising land use rights or assets attached to land (e.g., buildings), it is the time when the registry receives a valid registration dossier;
- For security over assets comprising aircraft or seagoing ships, it is the time when information on a secured transaction is recorded in the aircraft register or the national seagoing ship register of Vietnam;
- For security over assets other than the foregoing, it is the time when the contents of a registration application are input into the database on secured transactions.
Process of and Procedures for Secured Transaction Registration
Decree 83 contains general provisions on the receipt of secured transaction registration dossiers, time limits for processing registration dossiers, completing registration of changes or written notices for enforcing security assets, correcting errors in secured transaction registration and deregistering secured transactions and the notification of secured transaction registration results. Taking into consideration the characteristics of each type of secured transaction, Decree 83 specifically provides for the process of and procedures for registration of aircraft pledges or mortgages, seagoing ship mortgages, secured transactions with land use rights or assets attached to land, secured transactions with movables other than aircraft and seagoing ships.
A secured transaction registration dossier must be filed by any of the following modes:
- Direct filing at the head office of a registry;
- Sending by post;
- Sending by fax or e-mail, for registration of secured transactions with movables at transaction and asset registration centres, on the condition that the registration applicant has been registered as a regular customer with the National Registration Agency for Secured Transactions of the Ministry of Justice;
- Sending via the online registration system.
Secured transaction registries must process registration dossiers, complete registration of changes or written notices for enforcing security assets, correct errors in secured transaction registration and deregister secured transactions on the date of receipt of valid dossiers. If they receive a dossier after 15:00 hours, they will complete the registration on the subsequent working day. In some cases, although it is not specified in Decree 83, the process may take longer but must not exceed three working days.
Decree 83 has supplemented dossiers and procedures for deregistration of aircraft pledges or mortgages, dossiers and procedures for registration of changes in the contents of registered seagoing ship mortgages and dossiers and procedures for registration of written notices for enforcing security assets being mortgaged seagoing ship.
As for the process and procedures for registration of secured transactions with land use rights or assets attached to land, and secured transactions involving movables (assets other than aircraft and seagoing ships), Decree 83 has consolidated specific provisions previously contained in various circulars.
Online Registration of Secured Transactions
Decree 83 sets out legal provisions on applications for online registration of secured transactions. An online registration application is an electronic data message and contains all items which must be filled in according to a set form. An online registration application will be as legally valid as a paper application. However, this system has yet to be set up. Once implemented, this will be an application of information technology into public services.
Provision of Information on Secured Transactions
Decree 83 allows certain institutions and individuals to request information on registered secured transactions. To this effect, Decree 83 sets out standard forms of request for provision of information on secured transactions, and the time limit for responding to written requests for the provision of information on secured transactions.
Secured transaction registries must provide information on a secured transaction on the date of receipt of a valid written request for information. When necessary to prolong the time limit for responding to a written request for information, the prolonged time limit must not exceed three working days.
Decree 83 also stipulates cases of refusal to provide information on secured transactions, specifically as follows:
- Requests for information are filed with agencies incompetent to provide information;
- Written requests for information are invalid;
- Information requesters fail to pay an information provision charge.
State Management of Secured Transaction Registration
The Government performs unified State management of secured transaction registration.
The Ministry of Justice is responsible to the Government for performing such management. Among other things, the ministry has the following tasks and powers:
- To submit to competent agencies for promulgation or promulgate within its legal authority, documents on secured transaction registration;
- To direct and organise the implementation of legal documents on secured transaction registration; to organise the dissemination of, and education about, legislation on secured transaction registration;
- To assume prime responsibility for, and coordinate with concerned ministries with, organising training of secured transaction registration employees and granting certificates to them;
- To provide professional guidance, directions and re-training for secured transaction registration employees;
- To manage transaction and asset registration centres of the National Registration Agency for Secured Transactions under the Ministry of Justice;
- To examine, inspect, handle violations and handle according to its competence complaints and accusations in the implementation of legislation on secured transaction registration.
Other State regulators include the Ministry of Transport and the Ministry of Natural Resources and Environment.
Provincial-level People's Committees perform State management of the registration of secured transactions with land use rights or assets attached to land in their localities. Departments of Justice will assist provincial-level People's Committees in such task.
Secured Transaction Registries
The Civil Aviation Administration of Vietnam under the Ministry of Transport registers, and provides information on, aircraft pledges and mortgages.
Provincial-level maritime bureaus or seaport authorities of the Vietnam National Maritime Bureau of the Ministry of Transport registers, and provides information on, seagoing ship mortgages.
Land use rights registries of provincial-level Natural Resources and Environment Departments and land use rights registries of Natural Resources and Environment Divisions of districts, towns and provincial cities register, and provide information on, secured transactions with land use rights or assets attached to land.
Transaction and asset registration centres of the National Registration Agency for Secured Transactions of the Ministry of Justice register secured transaction with movables (assets other than aircraft and seagoing ships) and other assets not falling within the registering competence of the above agencies.
These secured transaction registries have the following powers:
- To register secured transactions; register changes in contents of registered secured transactions; register written notices for enforcing security assets; correct errors in secured transaction registration; deregister secured transactions;
- To certify registration of secured transactions with land use rights, assets attached to land and other assets; to grant certificates of registration of secured transactions involving aircraft or
- seagoing ships, and copies of documents bearing registries' certification;
- To provide information on secured transactions.
Provision of Information on Secured Transactions
Decree 83 also gives individuals and organisations the right to request information on registered transactions. The registration office, however, has the right to refuse to provide any such information if:
- The request is submitted to an authority which does not have the power to provide such information;
- The request for information is regarded as improper; or
- The applicable fee has not been paid.
Authorities must generally respond to a request for information on the same day as receiving a complete application, and any refusal to provide information must be explained in writing to the applicant.
Effectiveness
Decree 83 replaces Decree No. 08/2000/ND-CP on Secured Transactions, and repeals specific articles in Decrees No. 163/2006/ND-CP, No. 181/2004/ND-CP, No. 84/2007/ND-CP, No. 23/2006/ND-CP, No. 70/2007/ND-CP, and No. 29/2009/ND-CP.
Decree 83 took effect on 9 September 2010.
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