Law on notarization of mortgage contracts of land use rights and assets attached to land - Reality in Binh Duong province

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF ECONOMICS

LUU TRUONG AN

LAW ON NOTARIZATION OF MORTGAGE CONTRACTS OF LAND USE RIGHTS AND ASSETS ATTACHED TO LAND – REALITY IN BINH DUONG PROVINCE

MASTER'S THESIS IN LAW

Ho Chi Minh City - Year 2020

MINISTRY OF EDUCATION AND TRAINING

HO CHI MINH CITY UNIVERSITY OF ECONOMICS

LUU TRUONG AN

LAW ON NOTARIZATION OF MORTGAGE CONTRACTS OF LAND USE RIGHTS AND ASSETS ATTACHED TO LAND – REALITY IN BINH DUONG PROVINCE

Major: Economic Law Training direction: Applied direction Code: 8380107

MASTER'S THESIS IN LAW

SCIENTIFIC INSTRUCTOR: DR. NGUYEN THI ANH

Ho Chi Minh City - Year 2020

COMMITMENT

My name is Luu Truong An, student code: 7701280378A, a student of the 28th Binh Duong Law Master's class of Ho Chi Minh City University of Economics, Faculty of Law, majoring in Economic Law, and the author of the Master's thesis in Law with the topic "Law on notarization of mortgage contracts for land use rights and assets attached to land - reality in Binh Duong province" .

I hereby certify that all the contents presented in this Thesis are the results of my own independent research under the guidance of my scientific supervisor. The Thesis uses and quotes some scientific opinions and viewpoints of some authors. This information is all cited specifically, accurately and verifiable. The data and information used in the Thesis are completely objective and honest.

THESIS AUTHOR

Liu Chang'an

INDEX

COVER PAGE STATEMENT OF GUARANTEE TABLE OF CONTENTS

LIST OF ABBREVIATIONS THESIS ABSTRACT

FOREWORD 1

CHAPTER 1. OVERVIEW AND LEGAL PROVISIONS ON NOTARIZATION OF MORTGAGE CONTRACTS OF LAND USE RIGHTS AND

ASSETS ATTACHED TO LAND 12

1.1. Theoretical issues and legal regulations on notarization of mortgage contracts on land use rights and assets attached to land 12

1.1.1. Concept and characteristics of notarization of mortgage contracts on land use rights and assets attached to land 12

1.1.1.1. Concept 12

1.1.1.2. Characteristics 14

1.1.2. The significance of notarizing mortgage contracts of land use rights and assets attached to land and the legal value of notarized mortgage contracts 17

1.1.2.1. The meaning of notarizing mortgage contracts on land use rights and assets attached to land 17

1.1.2.2. Legal value of notarized mortgage contract 19

1.2. Procedures for notarization of mortgage contracts and mortgage conditions for land use rights and assets attached to land 24

1.2.1. Procedures for notarizing mortgage contracts on land use rights and assets attached to land according to the provisions of the 2014 Notarization Law 24

1.2.2. Conditions for mortgaging land use rights and assets attached to land 29

1.2.2.1. Conditions for mortgaged land use rights 29

1.2.2.2. Conditions for assets attached to land to be mortgaged 31

1.3. Legal provisions on the obligation to prove that mortgaged property is not in dispute and collection of notarization fees for mortgage contracts of land use rights and property attached to land 34

1.3.1. Legal regulations on the obligation to prove that the property is not in dispute when notarizing a mortgage contract on land use rights and property attached to land 34

1.3.2. Legal regulations on notarization fees for property mortgage contracts according to Circular 257/2016/TT-BTC dated November 11, 2016 35

CHAPTER 2. PRACTICAL APPLICATION OF REGULATIONS RELATED TO NOTARIZATION OF LAND USE RIGHT MORTGAGE CONTRACTS AND

ASSETS ATTACHED TO LAND IN BINH DUONG PROVINCE 39

2.1. Obligation to prove that the mortgaged property is not in dispute 40

2.1.1. Obligation to prove that assets are not in dispute when applying legal documents 41

2.1.1.1. Obligation to prove that the property is not in dispute when applying the provisions of the Land Law and Housing Law 41

2.1.1.2. Obligation to prove that the property is not in dispute when applying the provisions of the Notary Law 43

2.1.2. Obligation to prove that assets are not in dispute when applying professional guidance and direction documents 46

2.2. Notary fee 50

2.2.1. Collect notary fees according to the provisions of Circular 257/2016/TT-BTC ..50 2.2.1.1. Credit institutions 55

2.2.1.2. Mortgage subject 56

2.2.1.3. Notary practice organization 57

2.2.2. Document guiding and directing the collection of notary fees according to the loan value of the credit contract 58

CHAPTER 3. RECOMMENDATIONS TO IMPROVE THE LAW ON MORTGAGE NOTARIZATION FOR MORTGAGE CONTRACTS OF LAND USE RIGHTS AND ASSETS ATTACHED TO LAND 66

3.1. Orientation on perfecting the law on mortgage notarization 66

3.2. Obligation to prove that the property is not in dispute 73

3.2.1. Proposal to amend legal documents 73

3.2.1.1. Amendment of legal documents regulating conditions for exercising mortgage rights on land use rights and assets attached to land 73

3.2.1.2. Amendment of the Notary Law 2014 79

3.2.2. Proposal to unify the content of documents guiding notary public practice 83

3.2.2.1. Official dispatch guiding notary practice 83

3.2.2.2. Minutes of the professional direction meeting 84

3.3. Notary fee 86

3.3.1. Proposal to amend Circular 257/2016/TT-BTC 86

3.3.2. Proposal to amend the mortgage contract form of credit institutions 87

CONCLUSION 90

LIST OF REFERENCES APPENDIX

LIST OF ABBREVIATIONS

Acronyms/Symbols

Full phrase
BLDS	Civil Code
LCC	Notary Law
Labor	Land Law
LN	Housing Law
QSDD	Land use rights
TCHNCC	Notary practice organization
TCTD	Credit institution
TMCP	Joint Stock Trading
TSGLVĐ	Property attached to land
People's Committee	People's Committee

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THESIS SUMMARY

Mortgaging property is very common but the rights of the parties involved in the transaction are not guaranteed. For that reason, the author chose to research the topic " Law on notarization of mortgage contracts for land use rights and assets attached to land - reality in Binh Duong province " to point out two typical shortcomings regarding the obligation to prove that the mortgaged property is not in dispute and the collection of notarization fees for mortgage contracts when performing notarization procedures in Binh Duong province. The thesis raises theoretical issues, compares, evaluates, analyzes legal regulations, professional guidance documents, notarized documents and the situation of applying legal regulations. From there, the thesis has shown that the rights of the mortgagee are violated and exist when promulgating, amending, and guiding the application of legal regulations. On that basis, "legislators" can consider and perceive the protection of the rights of the "weak party" and the legislative issues they are facing. The thesis also calls on credit institutions and notary organizations to protect their "customers" in order to create a safe, trustworthy and mutually beneficial trading environment.

Keywords: Notarization, mortgage contract, land use rights and assets attached to land, Land Law, Housing Law, Binh Duong.