On 30 November 2022, the Government issued Decree 99 on security interest registration (Decree 99/2022) to replace Decree 102/2017 (Decree 102/2017) on the same subject matter. Decree 99/2022 will take effect from 15 January 2023.
· Decree 99/2022 introduces several measures which, if applied correctly, could substantially reduce the burden of obtaining a registration for a security interest under Vietnamese law. In particular, the declaration of the content to be registered incorrectly in accordance with the law is no longer basis for the registrar to refuse the registration of security interest.
· The registrar must not introduce or require procedures which are different from those provided in Decree 99/2022. Decree 99/2022 prohibits the registrar from requesting the submission of additional documents or information not specifically required by this Decree, or requesting the amendment of the name or the terms of the security agreement. The registrar must bear responsibilities if breaching this principle. Under Decree 102/2017, the registrar may request for this amendment if there is an error arising from the applicant’s declaration mistake.
· Decree 99/2022 no longer has the principle that the declaring contents and the documents in the registration dossier must be in accordance with the information archived by the registrar. However, under Decree 99/2022, the registrar is still entitled to refuse the registration on the basis that the information in the registration dossier is not in accordance with the information archived by the registrar. In such case, if the security assets are land use rights or assets attached to land, in some cases, the applicant can choose to (i) register to unify the difference with the registrar before registering the security interest, or (ii) continue with the registration of the security interest at its own risk. Decree 99/2022 also provides for solutions for some other typical cases.
· With respect to secured transactions registered online, Decree 99/2022 allows the use of electronic signatures and seals on the applications.
To protect the registrar, Decree 99/2022 provides certain “disclaimers” for the competent registrar. For instance, the registrar will not be responsible for the name and content of security contract, the registration/de-registration according to an effective court decision/judgment, or the registration of security interest over assets subject to dispute or civil judgment enforcement if at the time of registration, the registrar does not receive relevant documents from the competent authority.
This post is written by Nguyen Hoang Duy and edited by Hoang Thanh Thuy.