This real estate is held by the mortgagee (for example: A needs to borrow VND 100 million from B for business for a period of 01 year, to secure his debt repayment obligation, A hands over the longan garden under his ownership to B for safekeeping and the parties can agree that B can harvest longan in the summer and will hand over the longan garden to A when A fully pays the loan according to the contract), but for some types of real estate, the law only stipulates that the owner (or user) can only use the mortgage measure without stipulating the mortgage measure. For example: mortgage of houses according to the provisions of Article 21 of the 2005 Housing Law, mortgage of land use rights according to the provisions of the 2013 Land Law. Thus, only construction works and other assets attached to land do not have specific regulations on the rights of the owner when using this property as collateral to perform civil obligations. However, there are few cases where someone uses a construction work under his ownership as collateral, because it can only be considered as applying a mortgage measure when the property is transferred to the mortgagee.
The handover of the pledged property by the pledgor to the pledgee must be an actual handover, that is, the pledgee actually holds the pledged property and not just possesses the documents. If the pledgor does not hand over the property to the pledgee in reality, it is not a measure of pledge, but a mortgage, although the property may be movable property and for some types of movable property, the law previously allowed the application of both measures: pledge, mortgage to secure the performance of obligations (pledge, mortgage of ships according to the 1990 Maritime Code), but now, it is only used as mortgage to secure the performance of civil obligations (mortgage of ships according to the provisions of the 2005 Maritime Code).
Based on the regulation that the mortgaged property must be delivered to the mortgagee, the mortgagor is not allowed to keep the mortgaged property, so although the mortgaged property has a large value and can guarantee the performance of many civil obligations,
However, the mortgagor can only mortgage that property to secure the performance of many civil obligations towards a mortgagee. At the same time, the mortgagor can also use many of his/her own properties to mortgage to secure the performance of a civil obligation.
The pledgee may directly hold the pledged property or authorize a third party to hold the pledged property. After receiving the transfer of the pledged property, the pledgee may directly hold the property or authorize a third party to hold the property; in case of authorization of a third party to hold the property, the pledgee shall still be responsible to the pledgor for the performance of other obligations as agreed with the pledgor (Article 16 of Decree No. 163/2006/ND-CP).
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* The relationship between mortgage and guarantee
As one of the measures to ensure the performance of civil obligations, the guarantee regime is specifically regulated from Article 361 to Article 371 of the 2005 Civil Code. According to the provisions of the 2005 Civil Code:
Guarantee is a commitment by a third party (hereinafter referred to as the guarantor) to the entitled party (hereinafter referred to as the beneficiary) to perform an obligation on behalf of the obligated party (hereinafter referred to as the guaranteed party), if when the deadline comes, the guaranteed party fails to perform or improperly performs the obligation. The parties may also agree that the guarantor is only required to perform the obligation when the guaranteed party is unable to perform its obligation [33, Article 361].
The fundamental difference between the guarantee regime and the pledge and mortgage regime is that the guarantee is a measure to secure the performance of civil obligations, in which a third party uses the property under his ownership to secure the performance of another person's civil obligations, not to secure the performance of the property owner's own obligations as in other guarantee regimes.
other. Thus, in the guarantee measure, the guarantor is not the party whose obligation is guaranteed, and there are not only two main subjects, the entitled party and the obligated party, but at least three subjects: the guarantor (the guarantor), the guarantee recipient (the entitled party - the guarantee recipient) and the obligated party (the guaranteed party). The guarantor is a third party in a civil obligation relationship that commits to the entitled party to perform the obligation on behalf of the obligated party if the obligated party fails to perform or improperly performs the obligation when the time comes to perform the obligation.
However, the guarantee measure also has a relationship with other security measures. This is shown in the fact that the guarantor uses the property under his ownership to pledge, mortgage, deposit, bet or deposit to ensure the performance of civil obligations for the guaranteed party (called applying security measures to perform the guarantee obligation). The civil obligation of the guarantor in this case is to perform the obligation on behalf of the guaranteed party if when the civil obligation is due, the guaranteed party fails to perform or improperly performs the obligation to the guarantee recipient.
The main contents of the guarantee regime include the following main points:
- The assets used for guarantee include all movable and immovable assets owned by the guarantor. The guarantor's ownership of the assets along with the value of the assets are the conditions that determine the guarantee. In addition, the guarantor can also commit to perform a certain job to guarantee the guaranteed party, that is, the guarantor will have to perform one or several jobs according to the agreement between the guarantor and the entitled party for the benefit of the entitled party to compensate for the performance of the civil obligations of the guaranteed party.
- In principle, when the due date for performance of the obligation comes, the obligated party
If the guarantor fails to perform or improperly performs the obligation, the beneficiary has the right to immediately request the guarantor to perform the obligation on behalf of the obligated party. If the guarantor fails to perform, the beneficiary (the entitled party) has the right to request the competent authority to handle the guaranteed property (similar to handling pledged property or mortgaged property), except in cases where the parties have a clear agreement that the guarantor must only perform the obligation of the guaranteed party when the guaranteed party (the obligated party) is unable to perform the obligation. If the parties have such an agreement, when the obligation is due and the obligated party fails to perform or improperly performs the obligation, the entitled party, that is, the beneficiary of the guarantee, can only request the obligated party to perform the obligation to it. If the obligated party is unable to perform the obligation, then the guarantor must perform the obligation on behalf of the guaranteed party. Therefore, in this case, if the parties have a dispute and request the Court to resolve it, the Court may declare in the judgment that the guaranteed party is responsible for performing the obligation to the entitled party, and in case of inability to perform, the guarantor is obliged to perform instead.
1.1.2. Legal characteristics of land use rights mortgage
1.1.2.1. Concept and characteristics of land use rights
* Concept of land use rights
According to current law, land is owned by the entire people and is represented by the State as the owner and managed uniformly; all citizens, organizations... only have land use rights. Land use rights is a concept that is very commonly used in Vietnam's land law, land use rights are conceived in two aspects:
(i) Subjective aspect: This is a power of land users (LUR) in exploiting and using the useful properties of land to bring about certain material benefits. This power of land users is recognized and protected by the LLĐĐ. In this aspect, LUR is recognized by the resources
Vietnamese legal documents, books and newspapers consider as follows:
- According to the Law Dictionary compiled by the Institute of Legal Science (Ministry of Justice): Land use rights: The rights of subjects to exploit the utility,
enjoy benefits and income from the use of land allocated, leased by the State or transferred from other entities through conversion, transfer, lease, sublease, inheritance, donation... from other entities with land use rights;
Land users have the following rights: 1. The right to be granted a Land Use Right Certificate (LURC); 2. To enjoy the fruits of labor and investment results on land; 3. To enjoy the benefits of State projects on the protection and improvement of agricultural land; 4. To be guided and assisted by the State in the improvement and improvement of agricultural land; 5. To be protected by the State when others infringe upon their legitimate LUR; 6. To complain, denounce, and sue for violations of the LUR. Land users are entitled to exercise the rights to convert, transfer, lease, sublease, inherit, donate, and mortgage LUR... in accordance with the provisions of the law on land [52].
- According to the Labor Law Curriculum of Hanoi Law University:
Land use rights are the right to exploit the useful properties of land to serve the socio-economic development goals of the country;
From an economic perspective, land use rights are important because they satisfy needs and bring material benefits to land users during the land use process [45].
Thus, from a subjective perspective, land use rights are the rights of organizations, households, and individuals to exploit the beneficial properties of land and bring them certain material benefits.
(ii) Objective aspect: Land use rights are an important institution of the Land Law, including a synthesis of legal norms issued by the State.
to regulate social relations arising in the process of land use such as: relations giving rise to land use rights; relations on the implementation of land use rights' powers; relations on the protection of land use rights (resolving complaints, denunciations, disputes over land use rights);
In this respect, land use rights as a legal institution include regulations as the legal basis for the generation of land use rights; regulations on the implementation of land use rights and regulations on the settlement of complaints, denunciations and disputes regarding land use rights. The 2013 Land Law has devoted a whole chapter (Chapter XI - From Article 166 to Article 194) to regulate the rights and obligations of land users; including the general rights and obligations of land users and the specific rights and obligations of each group of land users.
* Basis for land use rights formation
In Vietnam, land is owned by the entire people, with the State representing and exercising the powers of the owner. The content of ownership rights includes three groups of rights: the group of possession rights, the group of use rights and the group of disposal rights. Because land is a special type of property, the State - the representative of the owner only holds the right to dispose of and the right to possess in principle; in reality, the right to exploit and the right to hold and manage land boundaries directly through the right to use is assigned to organizations, households and individuals. As the representative of the land owner, the State allocates or does not allocate land, leases land, recognizes or does not recognize land use rights for organizations, households and individuals using land (collectively referred to as land users). In the process of allocating land, leasing land and recognizing land use rights for land users, depending on each subject, the State collects or does not collect land use fees. In general, land used for residential purposes or for production, business and service purposes to seek profits is allocated by the State with land use fees collected. On the contrary, land used for national defense and security purposes; national interests, public interests or used for agricultural purposes to solve "jobs,
"Jobs" ensure the livelihood of people directly engaged in agricultural production to whom the State allocates land without collecting land use fees. In addition, the State leases land in two forms: Land lease with annual land rent payment and land lease with one-time land rent payment for the entire lease term. These two forms of land lease are applied to domestic organizations, households, individuals; Vietnamese people residing abroad, and foreign-invested enterprises using land to carry out investment projects in Vietnam.
Thus, in our country, due to the special nature of the regime of public ownership of land, land use rights are formed on the basis of public ownership of land.
* Characteristics of land use rights
Land use rights in our country have a broader connotation than normal use rights. They go beyond the "narrow" framework of the right to exploit the utility, enjoy the benefits and profits from land (property) to participate in civil transactions in the market; are used as collateral in mortgage relationships, loan guarantees at credit institutions; are used as joint venture capital in production and business activities and become a type of "property rights" (a type of property rights). Land use rights have the following basic characteristics:
Firstly, as analyzed above, land use rights are a type of property right (real right) and are valued and allowed to be exchanged on the market;
Second, due to the special nature of the regime of ownership of land by the entire people in our country, land use rights are formed on the basis of ownership of land by the entire people. This means that land users have land use rights when the State allocates land, leases land or recognizes land use rights for long-term stable use. However, because the law allows land users to transfer land use rights, land use rights are separated from land ownership rights and become a relatively independent type of right compared to land ownership rights.
Although, land use rights are valued in money and are exchanged.
In the market, there are still differences between the people's ownership of land and the right to use land. This difference is shown in the following main aspects:
- Land ownership is the original right (existing first), while land use rights are derivative rights (existing later), appearing when the State allocates or leases land, allows the transfer of land use rights or recognizes land use rights;
- Land ownership is a complete and full right, while land use rights are an incomplete and incomplete right. The incompleteness and insufficiency of land use rights are shown in the following aspects:
Firstly, land users do not have full powers like the State as the representative of the entire people's ownership of land.
Second, not everyone with legal land use rights has the right to convert, donate, transfer, lease, inherit, sublease, mortgage, guarantee, or contribute capital using land use rights.
Third, land ownership is a type of independent right, while land use rights are a type of dependent right. The dependence of land use rights is reflected in the fact that land users cannot decide on their own all issues arising in the process of land use, but can only decide on some issues, and basically they still have to act according to the will of the State as the representative of the land owner.
1.1.2.2. Concept and basic characteristics of land use rights mortgage
* Concept of land use rights mortgage
In the land sector, the legal basis for transactions on land use rights in general and mortgages on land use rights in particular operating in a market economy is marked by the recognition in the original law - the 1992 Constitution: "The State allocates land to households and individuals for stable and long-term use and is allowed to transfer land use rights according to the provisions of law" [26, Article 18];