Mortgage of land use rights and assets attached to land at commercial banks in Hue city

5 cases were annulled due to errors, 8 cases were revised due to errors. Of which, the Provincial People's Court had 1.5 cases annulled, 1 case revised; District People's Courts had 3.5 cases annulled, 7 cases revised. 11 cases of District People's Court were overdue.

Commercial business project:

In 2010, the whole industry accepted and resolved 50/52 cases, reaching a rate of 96.2%. (Provincial People's Court 23/23 cases, reaching a rate of 100%, District People's Courts 27/29 cases, reaching a rate of 93.1%).

In there:

- Commercial cases : Accepted and resolved 42/44 cases, reaching a rate of 95.5%. Including: Provincial People's Court 20/20 cases, District People's Courts 22/24 cases.

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2011 Year End Report

Civil judgment:

The total number of cases accepted and resolved was 338/369, reaching a rate of 91.6%. Compared to 2010, the number of accepted cases decreased by 66 cases. Of which:

- Provincial People's Court: Accepted and resolved 53/58 cases, reaching a rate of 91.4%. Including: resolving and trying 19/22 cases at first instance, 30/32 cases at appeal, and 4/4 cases at final review.

- District People's Courts: Received and resolved 285/311 cases, reaching a rate of 91.6%.

72 cases were successfully mediated, reaching a rate of 21.3%. The number of judgments and decisions that were annulled due to errors was 14 cases, the number of judgments and decisions that were amended due to errors was 5 cases. Of which, the Provincial People's Court had 2 cases annulled; the District People's Court had 12 cases annulled, 5 cases amended. The District People's Court had 10 cases that exceeded the statutory time limit.

Commercial business project:

The total number of cases accepted and resolved was 54/58, reaching a rate of 93.1%. Compared to 2010, the number of cases accepted increased by 6 cases. (Provincial People's Court: 13/14 cases, reaching a rate of 92.9%, District People's Court: 41/44 cases, reaching a rate of 93.2%).

In there:

- Commercial cases : Accepted and resolved 48/52 cases, reaching a rate of 92.3%. Including: Provincial People's Court 13/14 cases, District People's Courts 35/38 cases.

During the trial, the following problems still exist:

- Litigation activities

When the mortgagee and borrower leave the area and cannot be contacted. For example, in May 2006, Mr. Tran Viet Hung and his wife borrowed 100 million from Asia Commercial Bank and mortgaged their house and land. In January 2007, Mr. Hung lost his ability to repay the debt and then left the area with his wife. ACB filed a lawsuit at the People's Court of Thua Thien Hue Province. The lawsuit process encountered many difficulties. The court suspended the case once but there was no legal basis. ACB appealed the suspension decision at the Supreme People's Court. Next, the Court temporarily suspended the case so that the plaintiff could publish a nationwide newspaper search for the defendant. The case took 6 years to resolve.

- Second, about the law of content

In case of mortgage of land use rights, the property attached to the land is the common property of the household and only the husband or wife or the head of the household participates in the signing without legal authorization.

This issue is being raised for the People's Court of Thua Thien Hue province with different views on resolving this case.

The first point of view is that the above determination of common property violates the provisions of Article 109 and Article 219 of the 2005 Civil Code (land use rights are common property of husband and wife), the husband or wife partly owns a part of the value, so that valuable part is still accepted for mortgage.

The second view is that the above disposition of common property is a violation.

Therefore, the mortgage contract on land use rights and assets attached to the land above is invalid due to violation of the prohibition of the law.

3.2. RECOMMENDATIONS FOR IMPROVING THE LAW ON MORTGAGES AND LIMITING DISPUTES ON MORTGAGES OF LAND USE RIGHTS AND ASSETS ATTACHED TO LAND IN LOCALITIES

3.2.1. Regarding notarization activities, registration of mortgages of land use rights and assets attached to land

To make notarization and mortgage registration of land use rights and assets attached to land convenient, professional and limit legal risks, we propose the following recommendations:

Firstly, there needs to be a connection of information between the Land Use Rights Registration Office and notary organizations.

This is very necessary and urgent to facilitate the search for information on land use rights and assets attached to land of notary organizations. Create consistency in the management of real estate information in mortgage activities. This also aims to limit risks when subjects take advantage of the above professional loopholes to make illegal profits, thereby protecting the interests of the mortgagee, which are commercial banks, as well as ensuring safety in the professional activities of notaries.

Second, the issue of mortgaging a land use right or property attached to the land to secure two or more obligations.

Clause 3, Article 47 of the Law on Notarization stipulates: “A real estate that has been mortgaged to secure the performance of an obligation and the mortgage contract has been notarized and is then further mortgaged to secure another obligation within the scope permitted by law, the subsequent mortgage contracts must be performed by the notary who notarized the first mortgage contract.

Notarization . In case the notary notarizes the mortgage contract for the first time

If the notary public transfers to another notary practice organization, no longer practices notarization or is unable to perform notarization, the notary public of the notary practice organization that is storing the mortgage contract shall notarize that contract.

It is necessary to have more open regulations for the above law in the direction of ensuring the normal operation of notaries. In our opinion, the requirement that a notary perform the first notarization for the same real estate should be abolished. Because the nature of the notary office's activities is organizational, notaries are executors although they are legally responsible for their testimony. The notary's testimony fully expresses the legal viewpoint in writing and is archived. Therefore, the notarized records performed by another notary do not change the status of the previous notary. The regulation that the same notary performs subsequent transactions of the same real estate is unnecessary and causes difficulties for the person requesting notarization as well as the notary practice organization.

Third, about professional activities

For notaries, when there is no information connection system with the land use registration office, it is necessary to: Be trained further in recognizing signs of falsification of land use right certificates and property documents attached to land, personal documents such as identity cards, birth certificates... and even grasp the unusual attitudes and behaviors of the person requesting notarization. Thereby, it will limit the acts of taking advantage of notarization to profit, defrauding parties in transactions on mortgage of land use rights, property attached to land.

For mortgage registration of land use rights and assets attached to land at the Hue City Land Use Registration Office.

Although the registration and settlement of mortgage registration of land use rights and assets attached to land are on time. However, with a large number of daily applications, there is only one staff to receive the documents, so this stage is often congested, so it is necessary to support more staff to quickly resolve the reception of documents.

In addition, the Hue City Land Use Rights Registration Office should coordinate with commercial banks to organize legal dissemination sessions on mortgage registration of residential land use rights and assets attached to land in the area, thereby raising the legal awareness of commercial bank staff in mortgage registration activities, thereby improving their understanding and limiting risks in mortgage registration activities.

3.2.2. Regarding adjudication activities related to mortgage of land use rights and assets attached to land

When lending activities are bustling, the workload of the People's Courts at all levels also increases due to disputes related to loans, mortgage contracts for land use rights, and assets attached to land. This is a huge workload for the Court staff. This requires increasing the number of judges and court clerks to ensure the progress of completing the cases that have been and are being handled.

For disputes related to households, our view is that in the case where the wife, husband or household borrows money and mortgages common property such as land use rights, property attached to land to serve production and business purposes to serve the common interests, but the loan contract or mortgage contract is not signed by all members, when a dispute occurs, the remaining members must also be responsible for paying the common debt with the common property of the couple and the household. Therefore, the mortgage contract for land use rights, property attached to land in this case is still

has legal effect. Because the joint ownership of property of husband and wife is based on the marital relationship, of the head of the household is based on the blood relationship. On the other hand, the disposition of this joint property (mortgage) is to serve the interests of the husband and wife, of the family.

3.2.3. On commercial bank activities related to mortgage of land use rights and assets attached to land

In addition to issuing procedures for mortgaging land use rights and assets attached to land, commercial banks must always update their internal policies and regulations. Currently, commercial banks only follow pre-determined forms while the legal system is constantly changing, leading to failure to keep up with reality. This requires improving the quality of legal staff in the field of mortgaging land use rights and assets attached to land. To do this, commercial banks themselves must focus on disseminating legal knowledge and practical experience to staff working in loan management, assessing customers' ability to repay debts, and assessing customers' collateral so that banks can prevent and limit legal risks in accepting mortgages of land use rights and assets attached to land and handling collateral such as land use rights and assets attached to land.

CONCLUDE

Mortgaging land use rights and assets attached to land is an agreement between the parties. Accordingly, the mortgagor uses the land use rights and assets attached to land to secure the performance of his or another person's obligations to the mortgagee (the entitled party) during the performance of the obligations while still being allowed to exploit and use the land and assets attached to land.

Mortgaging land use rights and assets attached to land is a complex legal activity carried out between entities.

Mortgagor: is the person who uses the property, which is the right to use residential land or property attached to land, to secure the obligation to repay the loan for himself or another person before the mortgagee;

The mortgagee is a credit institution or commercial bank licensed to provide loans. Accordingly, the mortgage activity is to ensure that the mortgagor secures the loan, thereby the mortgage is the only security measure for assets such as land use rights and assets attached to land;

Notarization party. In order to ensure voluntariness, transactions that are not contrary to the law or social ethics, and to ensure full legal status of the mortgagors and mortgagees, notarization is a mandatory requirement for mortgage contracts on land use rights and assets attached to land;

Land use rights registration party. This is a special party involved in a mortgage contract for land use rights and assets attached to land. For normal contracts, registration of secured transactions is usually not required, but for mortgage contracts for land use rights and assets attached to land, the condition for the validity of the mortgage contract for land use rights and assets attached to land is to register the mortgage. Even if the parties have completed the debt repayment, the cancellation of the mortgage registration is a step.

required to release the mortgaged property from legal obligations to the mortgagee.

In addition, in resolving disputes over mortgage contracts for land use rights and assets attached to land, there is also the role of property auction organizations and especially the role of people's courts. Although the 2005 Civil Code and Decree 163/2006/ND-CP stipulate that the mortgagee can handle the property through auction, the provisions on contracts and transfer of ownership of the 2005 Civil Code "assign" the mortgagor to handle the property when the customer violates the signed obligations, forcing commercial banks to file a lawsuit at the people's court to request debt recovery. Disputes resolved through the court have caused a lot of time and costs for commercial banks. This needs to be amended and supplemented in the direction that commercial banks can handle assets when customers are unable to pay debts or violate signed mortgage contracts for land use rights and assets attached to land. This will reduce the ratio and quantity of bad debts of commercial banks, ensuring the health of the capital market.

Hue City is a city with large commercial banks. Credit and mortgage activities are very active. In addition to the great achievements in lending activities, the number of disbursed files has contributed to the development of the provincial economy. However, through practical activities on mortgage of land use rights and assets attached to land, commercial banks still have many limitations. In particular, it is necessary to perfect the legal process on lending activities, mortgage of land use rights and assets attached to land, improve the quality of human resources in loan appraisal, notarization, registration and risk handling to meet the increasing needs of society./.

Mortgage of land use rights and assets attached to land at commercial banks in Hue city - 12

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