Khoá Luận Regulations On The Disposal Of Collateral Which Is The Right To Claim Debts At Commercial Banks.pdf

HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF COMMERCIAL LAW NGUYEN PHAM MINH THAO REGULATIONS ON THE DISPOSAL OF COLLATERAL WHICH IS THE RIGHT TO CLAIM DEBTS AT COMMERCIAL BANKS COMMERCIAL LAW MAJOR HO CHI MINH CITY− 2021 HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF COMMERCIAL LAW BACHELOR'S THESIS REGULATIONS ON THE DISPOSAL OF COLLATERAL WHICH IS THE RIGHT TO CLAIM DEBTS AT COMMERCIAL BANKS STUDENT CLASS : NGUYEN PHAM MINH THAO : CLCQTL41 STUDENT CODE : 1651101030129 SUPERVISOR : Dr PHAN THI THANH DUONG HO CHI MINH CITY− 2021 COMMITMENT I hereby commit that the thesis "Regulations on the disposal of collateral which is the right to claim debts at commercial banks" is my work of research All information in this thesis is completely cited honestly Besides, I also personally give opinions relevant to issued problems in the thesis with the instruction of Doctor Phan Thi Thanh Duong – lecturer of Faculty of Commercial Law, and I not copy from any previous works I sincerely appreciate the devoted guidance from my instructor I am responsible for this commitment June 28, 2021 Nguyen Pham Minh Thao ABBREVIATION Circular 20/2017/TT-NHNN issued by the State bank of Vietnam on Circular 20 December 29, 2017, on Sale of receivables from financial leasing contracts Circular 27/2002/TT-BTC issued by the Ministry of Finance on March 22, Circular 27 2002, on Guiding the financial regime applicable to debt-managing and assetexploiting companies under commercial banks Circular 219/2013/TT-BTC issued by Circular 219 the Ministry of Finance on December 31, 2013, on Guiding the implementation of the law on valueadded tax and the government’s decree no 209/2013/nd-cp of december 18, 2013, detailing and guiding a number of articles of the law on value-added tax Decision 150 Decision 150/2001/QD-TTg issued by the Prime Minister on October 5, 2001, on The establishment of debt management and asset exploitation companies under commercial banks Decree 163 Decree 163/2006/ND-CP issued by Government on December 29, 2006 on Security transactions Decree 11 Decree 11/2012/ND-CP issued by Government on February 22, 2012, on Amending and supplementing a number of articles of the Government’s Decree No 163/2006/ND-CP of December 29, 2006, on secured transactions Decree 21/2021/ND-CP issued by the Decree 21 Prime Minister on March 19, 2021, on The implementation of the Civil Code to secure the performance of obligations Joint Circular 16/2014/TTLT-BTPBTNMT-NHNN issued by The Ministry of Justice - The Ministry of Joint Circular 16 natural resources and environment The State bank of Vietnam on June 6, 2014, on Guiding a number of matters on disposal of security assets TABLE OF CONTENTS INTRODUCTION .1 CHAPTER 1: Overview of the disposal of collateral which is the right to claim debts at commercial banks 1.1 Overview of the right to claim debts 1.1.1 Concept of the right to claim debts 1.1.2 Characteristics of the right to claim debts 1.1.3 Classification of the right to claim debts 1.2 Mortgage of the right to claim debts at commercial banks .10 1.2.1 Overview of a mortgage contract .10 1.2.2 Mortgage of the right to claim debts at commercial banks 11 1.3 Overview of collateral disposal which is the right to claim debts at commercial banks .14 1.3.1 Overview of collateral disposal at commercial banks .14 1.3.2 The basic legal content of collateral disposal which is the right to claim debts 16 1.3.3 Significance of collateral disposal which is the right to claim debts .22 CONCLUSION CHAPTER 24 CHAPTER 2: Vietnamese legislation on the disposal of the collateral being the right to claim debts at commercial banks 25 2.1 Vietnamese legislation on the disposal of the collateral being the right to claim debts at commercial banks 25 2.1.1 Notification procedure for the disposal of the right to claim debts 25 2.1.2 Disposal methods for collateral being the right to claim debts 26 2.2 Risk identification when disposing of collateral which is the right to claim debts .30 2.2.1 Valuation of the right to claim debts 30 2.2.2 The priority of payment 31 2.2.3 Mortgagor being an individual dies 33 2.2.4 Mortgagor being a legal entity goes bankrupt 35 2.2.5 Defenses used by the debtor 37 2.3 Some recommendations for improvement to the disposal of collateral which is the right to claim debts 40 2.3.1 Some specific recommendations for improvement to the disposal of collateral which is the right to claim debts .40 2.3.2 Some general recommendations on debt claim mortgage contract at commercial banks 46 CONCLUSION CHAPTER 49 CONCLUSION 50 BIBLIOGRAPHY INTRODUCTION The necessity of research The banking sector is one of the pillars of economic prosperity for many countries, especially for a developing country like Vietnam In Vietnam, many enterprises are lack incentives because of the capital shortage However, with commercial banks and their loan policies, enterprises have chances to change, grow, and succeed Nevertheless, the lending activities of banks include many potential risks Therefore, Vietnamese legislators have made regulations on security measures, including but not limited to pledge, mortgage, and guaranty The right to claim debts is a common right in business transactions According to Vietnam law, it is a property right and allowed to be used as collateral to secure the performance of obligations Because it is an intangible asset and carries hidden risks, collateral disposal, which is the right to claim debts, is more complex than other types of assets Due to this reason, commercial banks hesitate to accept the right to claim debts as collateral, and even if they accept, they have considerable difficulties in disposing of it It is thought that if the security measures system can provide a transparent and efficient mechanism to dispose of this special asset, commercial banks will be more confident to accept the right to claim debts as collateral At that time, investors can mobilize a more considerable amount of capital to carry on and expand business activities, thereby contributing to national economic development Therefore, clarifying legal aspects of the disposal of this special collateral is an issue that needs to be addressed so that investors can exploit their debt claims as efficiently as possible and banks can ensure their lawful rights and interests The above reasons make the study of collateral disposal, which is the right to claim debts, valuable Additionally, it is of the author’s interest to learn more about the right to claim debts due to its unique characteristics Therefore, the topic "Regulations on the disposal of collateral which is the right to claim debts at commercial banks" is selected to be the author’s graduation thesis Literature review Disposal of collateral is not a new issue and has been studied by many authors at different levels such as bachelor thesis, master thesis, doctoral thesis, papers published in different journals, etc Many outstanding studies have been given on topic analyzing the disposal of collateral from an overview perspective, namely: - Master thesis "Pháp luật xử lí tài sản bảo đảm tiền vay tổ chức tín dụng- Thực trạng hướng hoàn thiện" [Trans: Regulations on loan collateral disposal at credit institutions – Practical issues and recommendations] by Tran Thi Thuy Anh protected at Ho Chi Minh City University of Law in 2006 This thesis focuses on clarifying some theoretical issues as well as practical issues of the disposal of loan collateral at credit institutions, thereby recommending for improvement The problems and difficulties in collateral disposal mentioned in the thesis are still controversial, such as property auction, collateral valuation when handling, judgment enforcement related to bankruptcy proceedings - Master thesis "Pháp luật xử lý tài sản chấp hoạt động cho vay tổ chức tín dụng" [Trans: Regulations on collateral disposal in lending activities of credit institutions] by Lam Minh Duc protected at Ho Chi Minh City University of Law in 2009 The thesis analyzes very specifically the difficulties when applying the collateral disposal regulations in practical situations, such as property auction, problems when disposing of land use rights, properties formed from the loan capital The thesis also mentions some problems when dealing with property rights, which are still challenging issues for lawmakers, such as in case a debtor acknowledges the mortgage and commits to make a payment to the mortgagee, but then - fails to perform or incorrectly perform the payment, what are the sanctions for the debtor? Doctoral thesis "Tài sản chấp xử lý tài sản chấp theo quy định pháp luật dân Việt Nam hành" [Trans: Collateral and collateral disposal in accordance with the current Vietnamese Civil Law] by Vu Thi Hong Yen protected at Ha Noi University of Law in 2013 The thesis contributes scientific concepts and characteristics on collateral disposal Moreover, the thesis analyzes the inadequacies when disposing of collateral in some specific cases, including land use rights and houses to be formed in the future, disposal when the mortgagor goes bankrupt, etc The thesis also mentions the disposal of the right to claim debts, raising typical issues such as the debtor's defenses, the notification obligation Additionally, the thesis contributes a lot of recommendations so that the mortgagee can promptly handle the collateral, especially on step-by-step instructions for disposing of collateral Furthermore, there are also many types of research on disposing of collateral being the right to claim debts in particular, namely: - Bachelor thesis "Pháp luật chấp quyền đòi nợ hoạt động cho vay ngân hàng thương mại" [Trans: Regulations on the mortgage of the right to claim debts in lending transactions of commercial banks] by Vo Thi Dai protected at Ho Chi Minh City University of Law in 2011 The thesis has specifically analyzed the theoretical issues of the right to claim debts, such as the concept and characteristics of the right to claim debts, the concept and characteristics of mortgage of the right to claim debts However, the thesis does not analyze in-depth the issues related to debt - claim disposal, such as notification obligation, order of payment priority Bachelor thesis "Thế chấp quyền đòi nợ bảo đảm nghĩa vụ tốn hợp đồng tín dụng" [Trans: Mortgage of the right to claim debts to ensure payment obligations in credit agreement] by Pham Thi Huynh Nhu protected at Ho Chi Minh City University of Law in 2014 The thesis has analyzed many aspects of mortgage of the right to claim debts, such as conditions for the right to claim debts used as collateral, valuation of the right to claim debts, registration and notarization of mortgage contracts The thesis also mentions the disposal of the right to claim debts, typical issues such as the order of payment priority, the debtor's defenses However, the thesis has not fully exploited all aspects of it, for example, it has not mentioned the disposal of the right to claim debts when the mortgagor goes bankrupt - Master thesis "Pháp luật xử lý tài sản đảm bảo quyền đòi nợ hoạt động cho vay ngân hàng thương mại" [Trans: Regulations on the disposal of collateral being the right to claim debts in lending activities at commercial banks] by Nguyen Thanh Luan protected at Ho Chi Minh City University of Law in 2014 The thesis focuses on analyzing the issues of disposal of the right to claim debts; thus, it examines comprehensively all aspects of debt claim disposal, such as regulations, risk identifications in specific situations It has given particular recommendations for improvement However, the thesis omitted general theoretical issues of collateral disposal, such as its concept, characteristics, and significance ... Therefore, the topic "Regulations on the disposal of collateral which is the right to claim debts at commercial banks" is selected to be the author’s graduation thesis Literature review Disposal of collateral. .. conditions for the right to claim debts used as collateral, valuation of the right to claim debts, registration and notarization of mortgage contracts The thesis also mentions the disposal of. .. disposal of the collateral being the right to claim debts at commercial banks 25 2.1 Vietnamese legislation on the disposal of the collateral being the right to claim debts at commercial