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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES PHAM VAN LOI SETTLEMANT OF LOAN GUARRANTEE CONTRACT DISPUTES AT THE GROUP CREDIT INSTITUTIONS FROM THE PRACTICE OF CASSATION AND REOPENING TRIAL OF THE SUPREME PEOPLE,S COURT Major: Economic Law Code: 9380107 SUMMARY OF DOCTORAL THESIS IN LAW HANOI - 2020 The Doctoral thesis was completed at: Graduate Academy of Social Sciences Supervisor: Assoc Prof Dr Dinh Van Thanh Reviewer 1: Assoc Prof Dr Nguyen Thi Que Anh Reviewer 2: Assoc Prof Dr Duong Dang Hue Reviewer 3: Dr Pham Sy Chung The doctoral thesis will be examined by Examination Board of Graduate Academy of Social Sciences at The doctoral thesis can be found at: - National Library of Vietnam; - Library of Graduate Academy of Social Sciences INTRODUCTION The urgency of this topic researching: The Resolution No 49-NQ / TW dated June 2, 2005 of the Politburo clearly stated, “Gradually completing cassation and reopening procedures in the direction of strictly prescribing the grounds for protest and clearly defining the protests' responsibilities to the Court's judgments or rulings which have taken legal effect; overcome the situation of rampant and lack of ground protests” Institutionalizing the policies of the Party, the Constitution of 2013 and the Law on Organization of the People's Courts 2014 stipulating that People's Courts are organized according to the 04-level model This leads to the authority to accept and resolve petitions according to cassation and reopening procedures for cases in general and the loan guarantee contract disputes at credit institutions in particular have many changes Changes in cassation and reopening institutions in civil procedures have overcome many shortcomings of the old Civil Procedure Code However, in addition to the positive points, there are still many overlapping, contradictory and irrational points leading to backlog of applications for cassation and reopening; the quality of handling business and commercial cases according to cassation and reopening procedures is not high Therefore, it is necessary to continue to study the recommendations for improvement The actual performance of credit institutions in recent years shows that bad debts of credit institutions are called by names such as "tumor" of the economy, "iceberg", "blood clot" that clog the flow of credit that is supplied to the economy Therefore, the study of the topic of settlement of loan guarantee contract disputes at credit institutions according to cassation and reopening procedures aims to point out problems in the procedures for resolving this type of dispute at the Court and propose solutions to improve dispute settlement efficiency is necessary in the current period Research purpose and mission: 2.1 Research purpose: The study of this topic is to clarify the theoretical basis, legal status and practice in resolving disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures at the Supreme People's Court Thereby proposing solutions to complete and improve the efficiency of settlement of loan guarantee contracts at credit institutions 2.2 Research mission: To achieve the above objectives, the thesis focuses on solving the following main tasks: (1) Clarifying the general theoretical issues about the dispute on loan guarantee contract at credit institutions according to cassation and reopening procedures; (2) Study the current status of the law and the practical application of the law on settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures; (3) Find out suitable solutions to improve and complete the law on settlement of loan guarantee contract disputes at credit institutions according to cassation and reopening procedures at the Supreme People's Court Object and scope of the study: 3.1 Research object: Perspectives, research works, legal theories, system of legal documents related to the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures The practice of applying the law on settlement of loan guarantee contracts at credit institutions according to cassation and reopening procedures at the Supreme People's Court 3.2 Research scope This thesis only focuses on the guarantee contract disputes between credit institutions (excluding foreign credit institutions) and organizations and individuals according to cassation and reopening procedures at the Supreme People's Court Research method: The research is conducted on the basis of dialectical materialism methodology and historical materialism of Marxism-Leninism Research methods of analysis, synthesis, statistics, comparison, logic, interview method, expert inquiry and “Case studies” are also used New contributions of the Thesis The thesis has proposed to amend a number of provisions of laws related to guarantee relations, and amend the provisions of the procedural law related to cassation and reopening; The Thesis shows the common types of disputes related to the loan guarantee contract at credit institutions, from which the thesis gives recommendations to the parties when entering into a guarantee contract This Thesis proposes a number of breakthrough solutions in the settlement of cassation and reopening petitions at the Supreme People's Court The scientific and practical significance of the thesis - Scientific significance: The topic contributes to supplementing and clarifying some basic theoretical issues about guarantee relationship and loan guarantee contract disputes at credit institutions - Practical significance: The thesis’s research results can be used as a reference for research and teaching activities, especially valuable for reference for those doing justice work Thesis structure In addition to the Introduction, Conclusion and List of references, the thesis includes 04 chapters as follows: Chapter 1: Overview of research situation and issues related to the Thesis topic Chapter 2: Theoretical issues on the settlement of loan guarantee contract dispute at credit institutions in accordance with cassation and reopening procedures Chapter 3: The legal status of cassation and reopening trial for disputes on loan guarantee contracts at credit institutions comes from the reality of the Supreme People's Court Chapter 4: Directions and solutions to improve the law, improve the efficiency of dispute settlement for loan guarantee contracts at credit institutions according to cassation and reopening procedures at the supreme people's court Chapter OVERVIEW OF RESEARCH SITUATION AND ISSUES RELATED TO THE THESIS TOPIC Overview of research related to the topic: 1.1 Overview of research on Loan guarantee contracts at credit institutions 1.1.1 Concept and characteristic of guarantee: Theoretically, the world has also had law schools following the tendency to determine that guarantee can be object guarantee measure In Vietnam, the 1995 Civil Code was built in this direction, but since 2005, when amending the 1995 Civil Code, the guarantee is provided in the direction of person guarantee measure - Guarantee relationship exists in the form of a contract between the guarantor and the guarantee: For civil obligation guarantee, many researchers in Vietnam agree with the views of the authors Pham Van Tuyet and Le Thi Kim Giang “in essence, the guarantee relationship is a kind of civil transaction, the relationship between the guarantor and the guarantee is a contract” 1.1.2 The main contents of loan guarantee relationship at credit institutions 1.1.2.1 Subject of loan guarantee relationship at credit institutions As mentioned, the guarantee relationship is defined as a contract and this is a contract entered into between the guarantor and the guarantee For a loan guarantee contract at a credit institution, the guarantor is always the credit institution, and the guarantee can be another organization or individual 1.1.2.2 The main contents of a loan guarantee contract at a credit institution: The law does not specify the content of the guarantee contract; it is completely agreed by the parties, provided that such agreements are not illegal or contrary to social morality Regarding non-illegal contents, this is a new provision compared to the previous civil law, the civil law before the 2015 Civil Code has recognized that the contents of the agreement in the contract must not be contrary "the Law" Thus, the prohibited scope of the Civil Law 2015 has narrowed a lot 1.1.2.3 Effect of a loan guarantee contract at a credit institution: - Regarding effective conditions of the guarantee contract: The authors Pham Van Tuyet, Le Kim Giang said that, “In order to take effect, a guarantee transaction must comply with conditions prescribed by the Civil Code, in addition, it is necessary to consider the relationship between the validity of the guarantee transaction and the validity of a credit contract is secured by that guarantee transaction” 1.1.2.4 The time when the right to request performance of the guarantee obligation arises: The author Bui Duc Giang has compared, British law stipulates that the guarantee obligation is a joint obligation, unless the parties agree that it is a reserve obligation The law of France goes in the opposite direction, from which it makes the judgment that the Law of Vietnam "bring clear benefits to the guarantee” Regarding the joint obligations between co-guarantors: Vietnam's civil laws on this issue are similar to the laws of some countries such as the UK and France 1.2 Research on loan guarantee contract settlement at credit institutions 1.2.1 The issue of dispute about the validity of the guarantee contract: The author Truong Thanh Duc explained why in a long period, guarantee contracts were made in the form of a third party's mortgage or pledge of assets Because if using the form of guarantee contract, the Notary Offices will refuse to notarize the contract, and the guarantee contract is not required to register the security transaction 1.2.2 Invalidity due to a breach of effective conditions in the contract content: - The guarantor is not the owner of the property used to guarantee, such as the real estate belongs to the parents (they are both died), and one of their child used the property to guarantee the loan at the bank, then the co-heirs discovered the incident and asked the Court to declare that the guarantee contract is invalid - The guarantee contract cannot be consented by the co-owner of the property used as guarantee: The authors Nguyen Van Cuong, Nguyen Thi Bich have analyzed the risks of receiving the guarantee obligation by the household's land use rights, but not having enough household members participating in the contract Accurate determination of household members is also not a simple matter These difficulties have been partly removed and resolved by the 2013 Land Law and the 2015 Real Estate Law Accordingly, the contract of mortgage of land use rights of a household without enough members will be only partially invalid (for those who not enter into the contract), the rest remains in effect - The guarantor requires a statement that the guarantee contract is invalid due to a violation of the law: The author Do Van Dai mentioned the case that "the representative is not re-established to conduct civil transactions with himself or with a third person that he is also the representative of that person " to request to declare contract guarantee invalid However, the Supreme People's Court determined that the business owner guaranteeing the business loan is not a transaction with himself, because the individual owner of the business with the legal entity - the enterprise is completely independent 1.2.3 Disputes over the contents of the loan guarantee contract: - The author Duy Kien has analyzed a specific case related to the difficulty of determining the exact scope of guarantee obligations The author Nguyen Anh Duc has cited the case of “Guarantee contract ended because the guarantee period has ended” - The person with the property asked another person to help borrow money at the credit institution and that person asked the person with the property to sign a guarantee contract to borrow a larger amount (borrow more): There are many authors mentioning and analyzing this content The main content of this relationship is that the person whose assets ask others to borrow a small amount of money at the credit institution, but the beneficiary takes advantage of this to borrow a larger amount and keep the difference - About the time of performing guarantee obligations: The author Do Van Dai analyzed 04 judgments of the Courts at all levels and pointed out the fact, “The Courts still determine the underwriting regulations of the sponsors, although the parties have no agreement on this issue in the guarantee contract” Thus, these cases must be determined as joint obligations in accordance with the law 1.3 Research on cassation and reopening procedures in civil proceedings: 1.3.1 Regarding the concept of cassation and reopening in civil proceedings: Textbooks of the Hanoi Law University, the Judicial Academy and the books of the authors Dao Xuan Tien, Ngo Anh Dung, Ha Thi Thuy Ha all have outlined the concept of cassation and reopening However, most of them cite the provisions of the civil procedure law Meanwhile, the author Mai Ngoc Duong has the approach and recognition of cassation in civil proceedings as a legal institution 1.3.2 Regarding the order and procedures for sending, receiving and accepting applications for cassation and reopening procedures: In the scientific topic of Dr Nguyen Huy Du (the graduate students also participated in writing this topic) mentioned the procedure of sending, receiving and accepting applications for cassation and reopening procedures 1.3.3 On the basis of the protest according to cassation procedures: The authors Dao Xuan Tien, Ha Hoang Hiep and Ha Thi Thuy Ha all agree that basically, the civil procedure law of different times stipulates that the main grounds for protest according to cassation procedures are similar without big difference The main change of the Civil Procedure Code 2015 is that the grounds of protest are associated with the consequences of rights and obligations of the affected parties 1.3.4 About the person authorized to appeal the cassation The authors Ngo Anh Dung, Dao Xuan Tien, Tran Anh Tuan, Chu Thi Hong Nhung stated that the common point of civil proceedings all stipulates that the Chief Justice of the Supreme People's Court and the Head of the Supreme People's Procuracy have the right to to protest against all valid judgments or decisions of the Court, except for the decision of the Council of Judges of the Supreme People's Court The Chief Justice of the Supreme People's Court and the Chief Procurator of the Supreme People's Procuracy are competent to protest against legally effective judgments or decisions of provincial or district people's courts within their respective localities Under the provisions of the 2004 Civil Procedure Code and earlier, the Chief Justice of the provincial People's Court and the Head of the Provincial People's Procuracy have the right to protest according to cassation procedures against the legally effective judgments or rulings of the district-level people's courts 1.3.5 About the time limit for a cassation appeal The authors Ngo Anh Dung, Ha Hoang Hiep and Ha Thi Thuy Ha have analyzed the provisions of the Law and pointed out that, as a general rule, the time limit for a cassation appeal is years from the date the judgment or decision takes legal effect According to the 2015 Civil Procedure Code, the appeal period can be extended for more years, ie years from the date the judgment takes legal effect provided that the involved party has had the petition within 01 year and after 03 years, the applicant continues to file the petition 1.3.6 Regarding jurisdiction of cassation The authors refer to the provisions of the law and the Ordinance on Procedures for Settlement of Civil Cases to analyze the competence to appeal to cassation review, pointing out some differences in the provisions of the procedural documents 1.3.7 Regarding reopening procedures The author Ngo Anh Dung, Dao Xuan Tien analyzed the real law on the basis of reopening appeal, including: newly discovered important details of the case that the litigants could not know when solving the case; The assessment conclusion or the translator's translation is clearly untrue; Judges and procurators intentionally falsify case files or deliberately make illegal conclusions; The effective judgment or decision on which the Court bases to settle the case has been cancelled 1.3.8 Regarding the time limit for reopening appeal The procedural documents all stipulate that one year from the date the person who is competent to appeal for reopening discovers facts that are grounds for reopening; The Ordinance further stipulates that the protest without causing damage to any involved party is not limited in time 1.3.9 Regarding the proposal to complete the law as well as solutions to complete cassation and reopening procedures: Most of the research works of the authors mentioned above have recommendations on amending, supplementing and completing the law related to the settlement of disputes on loan guarantee contracts at credit institutions in accordance with cassation and reopening procedures Overall assessment of research related to the thesis topic: It can be said that the domestic and foreign research on the guarantee institution is very exciting, as evidenced by a lot of scientific researches on this issue There has been no research work on the real situation of the settlement of guarantee contract disputes through cassation and reopening activities of the Supreme People's Court Results of the research works that the author will inherit: The author inherits the point of view, guarantee is a human-related security measure, but in the process of developing many systems guarantee on things have also be accepted; Guarantee contract is an independent contract, not a sub-contract of a credit contract Regarding cassation and reopening procedures, the author inherits the view that it is necessary to hand over the authority to protest cassation and reopening for legally effective judgments and decisions of district People's Courts to the Chief of Provincial People's Courts; it is necessary to shorten the time limit for appeals and not specify cases to be extended to years; to collect fees for cassation or reopening trial requests Issues needed to study in the Thesis: It is necessary to study how guarantees still retain the human nature, while still being attractive to credit institutions; point out inadequacies in the settlement of guarantee contract disputes according to cassation and reopening procedures at the Supreme People's Court Proposing solutions to complete and improve the efficiency of the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures at the Supreme People's Court Research theoretical basis: 5.1 Research theory of the topic: - Theory of contracts in general and theory of loan guarantee contracts at credit institutions in particular; theory of protecting the rights and interests of the parties in loan guarantee contracts at credit institutions; Theory of risk prevention in bank credit guarantees; Theory of the litigants' right to selfdetermination, on protecting the legitimate interests of the involved parties in the case; Theory of the Court trial to ensure justice and fairness; Theory of the Court's independent adjudication guarantee 5.2 Research questions, research hypotheses of the topic The first question, is the legal system on loan guarantees at credit institutions complete, what issues are lacking in the law? Which regulations are not reasonable? Assuming that the theoretical basis of the law on loan guarantee at credit institutions in Vietnam is incomplete and noncomprehensive; Legal provisions on loan guarantee contracts at credit institutions are inadequate, flawed, scattered, and unsystematic; The second question, What issues often arise in disputes in loan guarantee contracts at credit institutions? What are the causes of these disputes? Assuming that the disputed contents are often related to the scope of guarantee obligations; measures to secure guarantee obligations; the time of performing the guarantee obligations The reason is the lack of legal provisions and unclear agreement in the contract signing process loan guarantees at credit institutions also have some distinct characteristics as follows: - Firstly, the beneficiary is always the credit institution: in the relationship that gives rise to the guaranteed obligation (amount of money), the lender is the credit institution, so the credit institution will be the beneficiary and in a guarantee relationship, this organization will be the beneficiary - Second, the guaranteed obligation is a loan under a credit contract: The obligation to be guaranteed in this relationship is a loan from individuals and organizations at the credit institution through a credit contract - Third, the guarantor is an organization or individual that is not specialized in guarantee activities: In this study, the author does not consider the bank guarantee operation Therefore, the sponsor is an unprofessional organization or individual 2.1.2 Concept and characteristics of a loan guarantee contract dispute at a credit institution: From the above concepts, we can conceptualize the guarantee contract dispute as follows, “Disputes on loan guarantee contracts at credit institutions are conflicts, disagreements between the guarantor and the credit institution arising in the process of entering into and exercising the rights and obligations in this contract” - Features of a loan guarantee contract dispute at a credit institution: - About the subject in this contract dispute: Guarantee contract dispute is only a dispute between the guarantor and the beneficiary; For loan guarantee contracts at a credit institution, the special point is that the beneficiary is always the credit institution (the lender) - Dispute on a loan guarantee contract at the credit institution arises after the obligor's debt payment has arisen: only when one of the conditions giving rise to the guaranteed obligation does the guarantee obligation arise, then the dispute arises - Regarding grounds for protest in accordance with cassation and reopening procedures: The grounds for the persons who are competent to protest according to cassation and reopening procedures, this type of dispute are caused by content violations but not procedural violations - There has not been any case related to guarantee contract that has been resolved according to simplified procedures: By the end of 2019, the court system has not accepted and resolved any dispute of this type according to summary procedures 11 2.2 Theoretical issues on the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures: 2.2.1 Concept, characteristics of loan guarantee contract settlement at credit institutions “Settlement of loan guarantee contract disputes at credit institutions is the activity of competent individuals, agencies and organizations to resolve disagreements and conflicts between credit institutions – the beneficiary and individuals and organizations (guarantor) to find the right solution on the basis of the law to clearly define the rights and obligations of the subjects in the guarantee relationship” Characteristics of settlement on loan guarantee contract disputes at credit institutions: - Depending on the subject's conditions and the purposes of the parties to the guarantee contract, this dispute can be defined as a civil or business or commercial relationship - Evidence in the settlement of a loan guarantee contract at a credit institution is fully provided with clear contents: Due to the specificity of this relationship, the beneficiary is always the credit institution, so the evidence is fully and clearly prepared - Settled concurrently with credit contract disputes: The guarantee contract shall be settled in general in the credit contract performance request case, then the guarantor shall participate in the procedure as a person with related interests and obligations in the case 2.2.2 Concepts, characteristics and contents of the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures 2.2.2.1 Concepts and characteristics of the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures: From different perspectives of approach, there are many different views on cassation and reopening in civil proceedings in general and for loan guarantee contract disputes at credit institutions in particular However, in order to fully identify the nature of cassation and reopening procedures for loan guarantee contract disputes at credit institutions, it is necessary to clarify the characteristics of cassation and reopening procedures in civil proceedings 12 Characteristics of cassation and reopening: The first characteristic is that the subjects of cassation and reopening are judgments and decisions of the courts which have taken legal effect: Judgments and decisions that have taken legal effect can be: Decision recognizing the agreement of the involved parties; First-instance and appellate judgments and decisions of People's Courts at all levels; decisions of cassation and reopening of High-level People's Courts The second characteristic is that the Cassation and reopening panel determine serious mistakes and violations of law in the judgment; assessing the grounds containing new facts that fundamentally change the content of the Court's decision The serious mistakes and violations in the effective court judgments or rulings may be the errors in the contents or the proceedings The third characteristic is that the review of judgments and decisions must be based on the appeal of the competent persons Procedures for cassation and reopening are conducted on the basis of protests of competent persons within the time limit prescribed by law against legally effective court judgments or rulings with serious mistakes 2.2.2.2 Content of cassation and reopening of disputes on loan guarantee contracts with credit institutions: - Regarding the right to request cassation: (1) The first mechanism is that in the court system, the errors must be discovered by themselves in order to promptly resolve them (2) The secondary mechanism, in addition to the selfdiscovery of the Court system, other agencies, organizations and individuals also have the right to detect and recommend review according to cassation and reopening procedures - Regarding the basis of cassation and reopening: cassation and reopening grounds are the bases for review according to cassation and reopening procedures Depending on the legal system of each country whether it is divided into cassation and reopening or combined in a procedure, these grounds are different - Regarding the time limit for requesting review of a judgment or decision: The time limit for requesting review of a legally effective decision is the period of time when a person with the right to request cassation or reopening has the right to file a request for review of the judgment and the decision taking legal effect according to cassation and reopening procedures - Regarding the jurisdiction of cassation and reopening: Jurisdiction of cassation and reopening means the powers to consider and decide on cassation and reopening panel on cases that have protested according to cassation and 13 reopening procedures - Regarding the jurisdiction of the Cassation and reopening board: Vietnam's procedural law stipulates that the cassation trial panel has the following rights: Not to accept the protest and to uphold the legally effective court judgment or decision; abrogate the Court's judgments or rulings which have taken legal effect and uphold the legal judgments or rulings of the lower courts which have been canceled or modified; cancel part or all of the legally effective Court's judgments or rulings for re-trial according to first-instance procedures or re-trial according to appellate procedures; cancel sentences or rulings in effect and suspending the resolution of the case; amend part or the whole of the legally effective Court's judgment or ruling - Specific issues in the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures compared to other procedures: - There is no need to verify, gather more evidence, but can evaluate and decide at the Cassation Review Panel (the judgment can be revised, no need to cancel for re-resolution) - Due to the specific characteristics of the credit institution's money business, the parties are willing to mediate to quickly end the case - The research and appraisal of documents of examiners, leaders of the Department of Inspection Director and the next authorized persons not take much time - Many loan guarantee contracts are related to the property to guarantee the guarantee obligation CONCLUSION OF CHAPTER The basic guarantee concept is agreed in main points such as the nature of the guarantee, the form of existence However, there are still differences, such as the guarantee obligation is legally binding or vice versa Loan guarantee contract disputes at credit institutions are a special and very important kind of dispute, even more important than the settlement of credit contract disputes Cassation and reopening procedures are special procedures, aimed at detecting and correcting errors in legally effective judgments of the firstinstance and appellate courts in the application of laws, as well as new facts that have been discovered that cannot be known in the proceedings 14 Chapter LEGAL STATUS OF CASSATION AND REOPENING FOR DISPUTES ON LOAN GUARANTEE CONTRACTS AT CREDIT INSTITUTIONS FROM THE REALITY OF THE SUPREME PEOPLE'S COURT 3.1 Current status of the law and practice in settling disputes on loan guarantee contracts at credit institutions in Vietnam: Guarantee for loans at credit institutions are based on the provisions on guarantees in Civil Code in 1995, 2005, 2015 and Decree no 163/2006/ND-CP dated December 29, 2006 3.1.1 Regarding the form of guarantee contract: For credit institutions, guarantee commitments must always be made in writing, can be made separately or jointly in credit contracts or contracts on pledge or mortgage of property to secure the guarantee obligation (Clause of Article 10) The content often in dispute is, the contract is not made in accordance with the nature of the security relationship (the guarantee relationship is a guarantee, but the parties make a contract to mortgage the property of a third party); the guarantee commitment is not made in the form of a contract; The guarantee contract has a term agreeing on measures to secure the security obligation with specific properties, but this contract is not notarized, authenticated or registered for security transactions etc 3.1.2 Regarding the scope of guarantee obligations: An obligation may be partially or wholly guaranteed by agreement or by law; An obligation may be partially or wholly guaranteed by agreement or by law; if there is no agreement and the law does not specify the scope of security, the obligation is deemed to be fully secured, including the obligation to pay interests and compensate for damage 3.1.2.1 Disputes in case the quantity of guarantee obligations is determined in terms of quantity: Although in the guarantee contract, the parties clearly agree that the scope of the guarantee obligation is a specific amount, but does not specify whether this amount is the total amount of guaranteed obligations or just the principal amount guaranteed 3.1.2.2 Regarding the cases in which the guarantee obligation scope is not determined in quantity: Upon the expiration of the disbursement term as agreed in the guarantee contract, the Bank and the borrower sign an annex to extend the loan term for an additional year to receive the additional loan amount, without the consent 15 of the guarantor, so the amount incurred over the period of the contract addendum is not within the scope of the guaranteed obligation Another form of dispute is that although in the guarantee contract, the parties have limited the time giving rise to the guarantee obligation, at the same time, there is an additional agreement, “the detailed conditions for borrowing and lending the above amount (specific number) will be specified in the banking documents that the borrower, the guarantor and the Bank will sign at the head office of the Bank” 3.1.2.3 Regarding interest rates: Interest overlapping: Interest is understood as calculating interest on the unpaid interest During the period when the Civil Code 2005 took effect, many courts, when resolving disputes on credit contracts, accepted credit institutions' requests to calculate interest or penalties for interest in due date but customers did not pay Regarding responsibility to share interest rate on overdue debts due to the fault of failure to fulfill the obligation to sell off assets to recover debts of the Bank: the borrower requests the credit institution to take responsibility for damage to the damaged collateral, damage and overdue interest on the debt due to the failure of the obligee to handle the property to recover the debt when the guarantee obligation arises 3.1.3 Legal issues of the collateral securing the guarantee obligation: There are many different types of disputes regarding the legal status of the property securing the obligation to guarantee, but by the nature that the guarantor uses the common property to mortgage to secure his guarantee obligation without the consent of the co-owner or the collateral is no longer under the ownership of the guarantor; property means a house and land use rights that the guarantor is entitled to under the decision of the legally effective judgment, with no name on that property but used as collateral to secure the guarantee obligation Land use rights are granted to the household, but when mortgaged to secure the guarantee obligation, the consent of all members of the Household is not agreed Common property of husband and wife, but only one party signs the contract to mortgage the whole property to secure the guarantee obligation 3.1.3.1 Disputes related to the additional loan relationship: The basic content of this relationship is that the owner of the property has a need to borrow money, so ask other individuals or organizations to borrow money, and at the same time use his property to secure that loan The borrower borrowed a larger amount than the property owner needed to borrow and kept the difference 16 3.1.4 Other disputes: - The bank incorrectly evaluates assets to mortgage to secure the guarantee obligation: the property the parties agree to use to secure the guarantee obligation is asset A, but when conducting the valuation, the parties mistakenly value asset B - Guarantee for the obligations formed in the future: - Conditional guarantee: In a specific case, the guarantor mortgages the property to secure the guarantee obligation for the loan at the Bank, provided that the borrower is allowed to supplement the loan after the loan is finalized 3.2 Legal status of cassation review and reopening of disputes on loan guarantee contracts at credit institutions - Regarding the discovery of legally effective court judgments or rulings, they need to be reviewed according to cassation and reopening procedures: According to the statistics of the Department of Director and Inspection II of the Supreme People's Court from 2015-2019, 100% of the cases of disputes on loan guarantee contracts at credit institutions being protested according to cassation and reopening procedures are requested by involved parties (It can be submitted directly or indirectly through other organizations and individuals) - Provisions on the person competent to appeal to cassation review Compared with the 2004 Civil Procedure Code amended in 2011, the 2015 Civil Procedure Code has the following new points: Chief justices of provincial-level people's courts and heads of provincial-level people's procuracies no longer have the authority to protest according to cassation and reopening procedures against effective judgments or rulings of district-level people's courts; instead, the authority of the Chief Justices of the Supreme People's Court and the Chief Procurator of the Supreme People's Procuracy by territory has the right to appeal to the judgments and decisions of the district and provincial courts within the territory - Regarding the basis of cassation review: Firstly, the conclusion in the judgment or decision is inconsistent with the objective details of the case, causing damage to the legitimate rights and interests of the involved parties Secondly, there are serious violations of procedural procedures that prevent the involved parties from exercising their procedural rights and obligations, leading to the fact that their legitimate rights and interests are not protected according to the provisions of law Thirdly, make mistakes in the application of laws leading to incorrect judgment or decision making, damaging the legitimate rights and interests of 17 the involved parties, infringing upon the interests of the public, the State and the third parties Regarding the time limit for requesting review of judgments or decisions: According to statistics, cases protested by the Chief Procurator of the Supreme People's Procuracy often have a shorter appeal period than the chief judge of the Supreme People's Court the majority of cases protested by the Chief Justice of the Supreme People's Court have a term of more than years (accounting for 89.4%), and most are nearly 03 years (accounting for 57.6%) - Regarding the jurisdiction of cassation and reopening According to the current civil procedure code, the judicial committee of the Supreme People's Court has jurisdiction over the cassation and reopening procedures of judgments, decisions of a district or provincial court within the appealed territory; The Judicial Council of the People's Court hears the judgments and rulings of the superior people's courts being protested Regarding the jurisdiction of the cassation and reopening panel: Out of a total of 66 cassation decisions of the Judicial Council of the Supreme People's Court hearing disputes related to the loan guarantee contract at the surveyed credit institution, there are 45 cases of cancelling the appellate judgment, the first-instance judgment to resolve the first instance (68.2%); 17 cases of cancelling the appellate judgment for appellate trial again (25.75%); 04 cases where the jury does not accept the appeal, uphold the appellate judgment (all are protested by the head of the People's Procuracy); 03 cases of cancellation of the decision to suspend the appellate trial or the first-instance judgment to re-resolve the first instance, although the decision to suspend the appellate trial has no errors, but due to the legally effective first-instance judgment under the appellate decision, the decision to suspend the appellate trial must also be canceled; has not yet recorded any case where the Judicial Council has partially or fully modified the judgments of the subordinates; and in no case the Court of Judges dismissed the appellate judgment uphold the first instance judgment [data source Department II] 3.3 The practice of cassation and reopening trial for disputes on loan guarantee contracts at credit institutions at the Supreme People's Court: 3.3.1 Current status of the application, results of acceptance and settlement according to cassation and reopening procedures for disputes on loan guarantee contracts at credit institutions at the Supreme People's Court: According to the statistics of the Director and Inspection Department II of the Supreme People's Court, from June 1, 2015 to April 1, 2019, The total number of petitions and petitions received by units of people's courts is 661 (of which, in May 4, 2015, there were 149 applications; in 2016, there was 139 18 applications; in 2017, it received 148 applications, in 2018 it received 151 applications; on 06 months of 2019, there was 74 applications) 3.3.2 Common violations of Magistrates’ and appellate courts in cases of dispute over loan guarantee contracts at credit institutions: 3.3.2.1 Violations of the proceedings: Determination of ineligibility to participate in the proceedings: The incorrect determination of representatives to participate in the proceedings will be considered a serious violation of the proceedings More seriously, in some cases due to incorrect determination of the dispute, the Court has stripped the independent claim of the person with related interests and obligations No distinction between the guarantee relationship and the mortgage relationship of a third party: the parties' use of the name of the security transaction inconsistently, some call it "mortgage of the third party's property" elsewhere call "guarantee", and although it is defined as a guarantee relationship, the parties only make a mortgage contract to secure the guarantee obligation without making separate guarantee contract 3.3.2.3 There are signs of the criminalization of civil relations, commercial business: The criminalization of economic relations, civil is always a current issue in the jurisprudence world In recent times this situation has decreased, but still exists In the banking credit sector, there are still some cases where criminalization is possible 3.3.2.4 Incorrectly sentencing on the handling of collateral: With the declaration in some judgments, the Court at all levels has defaulted to the guarantee obligation as a reserve obligation However, if assuming the concept of guarantee obligation is a reserve obligation, such statement is also inaccurate 3.3.2.5 Other Errors: Determining whether the credit relationship is civil or commercial in the case of consumer loans 3.3.3 Problems in the procedures for settling disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures: Firstly, regarding staff in charge of cassation and reopening procedures: Most of the inspectors at the Department of Director II are recruited directly from law training institutions, that is to say , students graduating from Law Universities immediately can be considered for admission to Department of Inspection Director II At present, there are only 02/40 officers who used to work as judges at district and provincial courts Secondly, on the process of accepting and resolving petitions according to cassation and reopening procedures at the Supreme People's Court: 19 A case may have to be reported up to 08 times before the final decision is to respond to the petition or appeal according to cassation and reopening procedures The process is too lengthy and has too many people are giving an opinion on a case Third, in terms of facilities and working conditions for the team of Examiners studying case files Currently, the equipment of essential means such as computers, copiers, scale machines, projectors and a smooth network connection have not yet fully met the working conditions for the inspector CONCLUSION OF CHAPTER By studying the provisions of the law on loan guarantee contract settlement at credit institutions according to cassation and reopening procedures and cassation decisions in the period from 2013-2018, It is assumed that there are disputes on proceedings, but most of them are still disputes related to the content of the guarantee relationship, especially disputes related to the guaranteed property Chapter DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW, IMPROVE THE EFFICIENCY OF DISPUTE SETTLEMENT FOR LOAN GUARANTEE CONTRACTS AT CREDIT INSTITUTIONS ACCORDING TO CASSATION AND REOPENING PROCEDURES AT THE SUPREME PEOPLE'S COURT 4.1 Orientation to complete the law on settlement of loan guarantee contract disputes at credit institutions according to cassation and reopening procedures - Timely solving the limitations, shortcomings and arising new requirements: - Ensuring the uniformity of law: - Ensuring the effectiveness of the loan guarantee contract at a credit institution, ensuring safety for credit relations, and effective capital circulation: - Ensuring the legitimate rights and interests of the involved parties: - Ensuring effectiveness of dispute resolution: 4.2 Solutions to complete the law on disputes settlement on loan guarantee contracts at credit institutions according to cassation and reopening procedures 4.2.1 Solution for completing legal regulations 20 4.2.1.1 Complete legal provisions on loan guarantee contracts at credit institutions: - First, on the performance of the guaranteed obligation: from the point that the debt-repayment obligation first belongs to the main obligor Therefore, the author thinks that the provisions on guarantee should also stipulate that the obligation to repay the credit institutions first belongs to the borrower Only when the borrower is unable to repay the debt, the guarantor will perform the debt repayment obligation within the committed scope -Second, it is necessary to regulate the righteous guarantee recipient: For the Judicial Council of the Supreme People's Court, in the short term, it is necessary to have an official view on the protection of the credit institution that receives the righteous guarantee (may be issued in the form of a Court Law) In the long term, it is necessary to study and amend Clause Article 133 of the Civil Code -Third, need to specify more about the case of assuring guarantee obligations: The author recommends that the next amendment of the civil code need to add provisions on the consequences of the pledge, mortgage to secure the guarantee obligation, in the direction that the guarantor uses his property to pledge Pledge or mortgage to the guarantee to secure the performance of the guarantee obligation, that is, the pledged or pledged property does not directly guarantee the obligor's obligations but rather to secure the obligations of the guarantee - Fourth, amending the regulations on collateral handling: In the long term, it is necessary to study the theory of guaranteed rights in the next revision of the Civil Code - Fifth, add provisions on the conditions of the guarantor: The author said that, Vietnam's Civil Law also needs to consider the provision of separate conditions on the guarantor so that the implementation of the guarantee obligation Receive (if any) are favourable Sixth, about the obligations of the guarantee and the guarantor: The practice of resolving disputes of these types of judgments shows that, in many cases, the guarantee does not perform or perform pro formally some obligations of the guarantee - Seventhly, amending and supplementing a number of provisions of laws related to mortgage guarantee of guarantee obligations: - For the Land Law: it is necessary to guide and correct the following regulations: - Provisions at term c, Clause 1, Article 175 of the 2013 Land Law 21 - Clause 1, Article 188 of the 2013 Land Law, can be understood, the land user does not have the right to mortgage the land use rights to be formed in the future - Regarding the effective date of the land use right mortgage contract For the Civil Procedure Law: The Supreme People's Court needs a criminal record to guide, in this case, all tenants who are actually using the mortgaged property in the proceedings, but if they are absent, or cannot find their address, the Court still resolves according to the general regulations - Regarding the Law on Execution of Civil Judgments: term d, Clause 1, Article 48 provides for cases of postponement of judgment execution if assets for judgment execution are disputed at the Court This rule can be abused - For the Law on Housing: Article 118 stipulates that a house in the mortgage transaction is a house that must have a Certificate Practically very few houses have a Certificate, especially in rural areas - For the Penal Code: In order to avoid criminalization of civil and economic relations, the Penal Code needs to amend Article 175 on the crime of abuse of credit and appropriation of property, in the direction of more clearly defining the contents of the act of abuse of credit assets in credit relations have security measures For registration of property and registration of security transactions: It is necessary to soon develop a Law on Asset Registration and Secured Transaction Registration, which stipulates the types of assets required for registration, the order and procedures for registration and the obligation to provide information on assets 4.2.1.2 Complete legal provisions on the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures First, on the conditions to appeal according to cassation procedures; Second, on the assignment of documents and cassation records research: Third, to shorten the time limit for cassation complaints and cassation complaints due; Fourth, it is advisable to abolish the provision for summoning proceedings and other persons involved in the appeal to the cassation hearing; Fifth, on the need to stipulate that the person who submits the petition for cassation review must pay the cassation fee; Sixth, should add provisions on the person who signed the Cassation Review decision in case the presiding judge disagrees with the decision to appeal; 22 Seventh, it is necessary to stipulate the establishment of a Cassation Review Panel for cassation and reopening proceedings, especially for the types of applications for reconsideration of the reply of the People's Court and petition for reopening; Eighth, on the basis to appeal according to reopening procedures; Ninth, on the time limit for appeal according to reopening procedures: The 1-year time limit is counted from the date the competent Court receives the reopening request and documents and evidence containing new details of the involved parties; Tenth, it is necessary to amend the provisions on the jurisdiction of the Cassation Review and reopening trial panel - For the cassation trial panel, it is necessary to add in the direction of having the right to "cancel part or all of the legally effective Court's judgments or decisions for re-trial according to first-instance and appellate procedure, Cassation - For the reopening trial panel, it is necessary to amend this provision in the civil prosecution code in the direction that the reopening trial panel has the power to cancel part of the legally effective judgment or decision for resolution Resolve this part Eleven, it is necessary to stipulate the number of times postponement of the execution of judgments with legal effect: It is necessary to specify the direction that the Court's legally effective judgments or decisions can be postponed from execution only once by one of the persons who are competent to protest according to cassation review 4.3 Proposes for the higher effectiveness of dispute settlement of guarantee contract for assuring debt in Credit Institution in accordance with procedure of cassation, reopening at Supreme People’s committee Firstly, strengthen the capacity in fostering and training staff in charge of cassation and reopening procedures Secondly, prepare clear and stable documents on the process of accepting and settling complaints according to cassation and reopening procedures Regarding the assignment of examiners to study and settle applications: It is necessary to reduce the reporting process for the resolution of cases according to cassation and reopening procedures Thirdly, improve facilities and working conditions for the team of inspectors who study case files CONCLUSION CHAPTER 23 CONCLUSION The current situation of the law on dispute settlement and the practice of dispute settlement on loan guarantee contracts at credit institutions according to current Vietnamese cassation and reopening procedures shows that the Acceptance of a guarantee contract is derived from the unclear agreements of the contracting parties as well as the poor understanding of the guarantor, combined with the guarantee's lack of liability Ambiguity on the legal value of collateral and formal provisions in the disposal of collateral However, the settlement of these disputes according to court proceedings still has many shortcomings in terms of inconsistency and time to resolve All these factors directly or indirectly increase the bad debts of the banking system, affecting the growth of the economy as a whole With the desire that guarantee is one of the preferred security measures to secure obligations in general and guarantee loans at credit institutions in particular, bank credit transactions are done smoothly and safely; Disputes in this field (if any) will be resolved quickly, in accordance with the law, to ensure justice; the decisions of the Court of Judges of the Supreme People’s court meet legal standards, have the value of professional guidance for the whole system The realization of complete solutions as proposed in the thesis, including the focus on complete solutions Relevant law should soon be reviewed and studied comprehensively in practice Amendments and supplements should be made soon so that the interests of the parties in the credit institution's loan guarantee relationship are guaranteed, the court's role in the practice of judicial rights is appreciated 24 LIST OF AUTHOR’S PUBLISHED WORKS Pham Van Loi (2014), “Dispute settlement practices related to property ownership”, Journal of Democracy and Law, released in October Pham Van Loi (2014), “The nature of Land use rights guarantee”, Lawyers Journal Pham Van Loi (2015), “Talk about the guarantee institutions with Land use rights of a third person”, The Journal of Legislative Studies Pham Van Loi (2018), “Talk about the effective date of the contract in accordance with Civil Code 2015”, Lawyers Journal, Issue No 6, Page.15 ... Graduate Academy of Social Sciences Supervisor: Assoc Prof Dr Dinh Van Thanh Reviewer 1: Assoc Prof Dr Nguyen Thi Que Anh Reviewer 2: Assoc Prof Dr Duong Dang Hue Reviewer 3: Dr Pham Sy Chung... settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures; (3) Find out suitable solutions to improve and complete the law on settlement... related to the settlement of disputes on loan guarantee contracts at credit institutions according to cassation and reopening procedures The practice of applying the law on settlement of loan
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