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Decree No. 17/2010/ND-CP dated March 04, 2010 of the Government on property auction
22/04/2011
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THE GOVERNMENT

 

SOCIALIST REPUBLIC OF VIETNAM

Independence – Freedom - Happiness

No.: 17/2010/ND-CP

Hanoi, March 04, 2010

 

DECREE

ON PROPERTY AUCTION

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 14, 2005 Civil Code;

Pursuant to the November 26, 2003 Land Law;

Pursuant to the June 3, 2008 Law on Management and Use of State Property;

Pursuant to the November 14, 2008 Law on Enforcement of Civil Judgments;

Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations; and the April 2, 2008 Ordinance Amending and Supplementing the 2002 Ordinance on Handling of Administrative Violations;

At the proposal of the Minister of Justice,

DECREES:

 

Chapter 1 GENERAL PROVISIONS

 

Article 1. Scope of regulation

1. This Decree provides for property auction principles, order and procedures, auctioneers, property auction organizations, and state management of property auction activities.

2.This Decree applies to the auction of the following kinds of property:

a/ Property for judgment enforcement under the law on judgment enforcement;

b/ Property being material evidences or means used in administrative violations which are confiscated into state funds under the law on handling of administrative violations;

c/ Security property subject to auction under the law on security transactions;

d/ State property subject to auction under the law on management and use of state property; property being land use rights in case the State allocates land and collects land use levy or leases land through auction under decisions of competent state agencies;

e/ Other property subject to auction under law.

3. Individuals and organizations that select professional auction organizations defined in Article 14 of this Decree for selling their own property shall comply with property auction principles, order and procedures provided in this Decree.

4. The sale of state property overseas or of special property in people's armed forces units is not regulated by this Decree but must comply with relevant laws applicable to such property.

Article 2. Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Property auction means a form of public sale of property in which increasing bids are offered by two or more bidders according to the principles, order and procedures provided in this Decree. Offer of increasing bids means the offer of bids from lower to higher levels until the highest bidder is identified.


2. Auctioneer means a person possessing an auction practice certificate under this Decree.

3. Successful buyer of property at auction means the person who offers the highest bid compared to the reserve price. If nobody offers a bid higher than the reserve price, property may be sold at the reserve price.

4. Property put up for auction may include movables, real estate, valuable papers and property rights permitted for trading under law.

5. Bid difference means the minimum amount by which a bid must exceed the preceding bid. The property auction organization shall specify a bid difference suitable to each auction.

6. Persons having property put up for auction include property owners, persons authorized by property owners to sell property, persons responsible for delivering property for auction or individuals or organizations having the right to sell others' property under law.

7. Bidders include individuals or representatives of organizations qualified to bid for property at auction under this Decree and other relevant laws.

Article 3. Property auction principles

1. Property auction must adhere to the principles of publicity, continuity, objectivity, honesty, equality, and protection of the lawful rights and interests of the involved parties.

2. All auctions must be conducted by auctioneers according to the property auction order and procedures provided in this Decree, except the case specified in Article 20 of this Decree and unless otherwise provided in laws and ordinances.

Article 4. Protection of lawful rights and interests of successful buyers of auctioned property

1. The lawful rights and interests of successful buyers of auctioned property shall be protected under law. Competent state agencies shall, within the ambit of their tasks and powers, guarantee the lawful rights and interests of successful buyers of auctioned property.

2. In case a third party has a dispute over the ownership or use right of the auctioned property, such ownership or use right shall be determined under the civil law.

3. In case a competent state agency issues a decision partially amending or annulling all decisions concerning the to-be-auctioned property due to violations of law committed before the property is put up for auction while the auction of such property has been held strictly according to the order and procedures prescribed by law, such property will still come under the ownership or use right of its successful buyer.

Organizations or individuals that cause damage due to their fault shall pay compensation under law.

Chapter II

AUCTIONEERS

 

Article 5. Criteria for an auctioneer

A Vietnamese citizen permanently residing in Vietnam who satisfies all the following criteria may work as an auctioneer:

1. Having good moral qualities;

2. Being a university graduate in law or economics;

3. Having completed an auction profession training course.


Article 6. Auction profession training

1. Holders of university degree in law or economics may register to attend auction profession training courses with auction profession training establishments.

2. The duration of an auction profession training course is 3 months. Training contents include legal knowledge, professional ethics, auction practice skills, and probation at a professional auction organization. A person who completes the auction profession training program will be issued an auction profession training certificate by the auction profession training establishment.

3. The Ministry of Justice shall specify the framework program for auction profession training courses and auction profession training establishments.

Article 7. Persons who are not required to attend auction profession training or are entitled to a shortened auction profession training duration

1. The following persons are not required to attend auction profession training:

a/ Professors, associate professors and doctors of law; professors, associate professors and doctors of economics; lawyers and executors.

b/ Principal verifiers in the court system and principal examiners in the procuracy system; principal inspectors; principal verifiers in judgment enforcement; principal officials; principal researchers and principal lecturers in law or economics;

c/ Senior verifiers in the court system and senior examiners in the procuracy system; senior inspectors; senior verifiers in judgment enforcement; senior officials and senior researchers in law or economics;

d/ Judges, procurators, investigators, auctioneers, notaries public and civil judgment enforcers.

2. Holders of university diplomas in law are entitled to a shortened legal knowledge training duration. The Ministry of Justice shall specify the shortened auction profession training duration.

Article 8. Issuance of auction practice certificates

1. A dossier of request for an auction practice certificate comprises:

a/ An application for the certificate;

b/ A curriculum vitae stuck with a photo and certified by a competent agency;

c/ A judicial record card;

d/ A copy of the university degree in law or economics;

e/ A copy of the auction profession training certificate, or evidencing paper for those not required to attend auction profession training specified in Article 7 of this Decree;

f/ Two 3 cm x 4 cm photos.

2. An applicant for an auction practice certificate shall send one dossier set to the Ministry of Justice and pay a fee under regulations. Within 15 working days after receiving a valid dossier, the Ministry of Justice shall issue an auction practice certificate to the applicant. In case of refusal, it shall notify in writing the reason to the applicant.

3. The auction practice certificate serves as a ground for practicing property auction.

Article 9. Persons ineligible for issuance of auction practice certificates


1. Cadres and civil servants; army officers and professional army men and defense workers in People's Army agencies and units; operational officers and non-commissioned officers and technical officers and non-commissioned officers in People's Public Security agencies and units, except cadres and civil servants who need auction practice certificates to work for property auction service centers.

2. Persons who have lost their civil act capacity or have it restricted.

3. Persons who are currently subject to penal liability examination or who have been convicted and are not entitled to criminal record remission.

4. Persons who are currently subject to other administrative handling measures or who have been subjected to other administrative handling measures but the duration after which they are regarded as not yet having subjected to such measures has not expired under the law on handling of administrative violations.

Article 10. Re-issuance of auction practice certificates

1. The holder of an auction practice certificate which is lost or unusably damaged may have it re-issued.

2. A dossier of request for re-issuance of a certificate comprises:

a/ An application for re-issuance of a certificate;

b/ The damaged certificate.

For a lost auction practice certificate, a competent agency's or organization's certification is required.

3. The procedures and time limit for re-issuance of an auction practice certificate are the same as those specified in Clause 2, Article 8 of this Decree.

Article 11. Revocation of auction practice certificates

1. The holder of an auction practice certificate may have it revoked in the following cases:

a/ Any of the cases specified in Article 9 of this Decree;

b/ He/she fails to regularly work at a property auction organization or no longer operates in the field of property auction;

c/ He/she has not conducted any auction for one year, unless he/she can give a plausible reason;

d/ He/she has been deprived of the right to use the certificate indefinitely under the law on handling of administrative violations;

e/ He/she commits prohibited acts specified in Article 13 of this Decree.

2. The Minister of Justice may revoke auction practice certificates and shall specify procedures for such revocation.

Article 12. Rights and obligations of an auctioneer

1. To regularly work at a professional auction organization.

2. To personally conduct property auctions and take responsibility before law and the property auction organization for property auction.

3. To adhere to the property auction principles provided in Article 3 of this Decree.

4. To deprive of the bidding right of violators of property auction rules.

5. To be objective and impartial in conducting property auction.

6. To compensate under law for damage caused by his/her fault to the property auction organization.

7. To exercise other rights and perform other obligations provided for by law.

Article 13. Prohibited acts of an auctioneer

1. Leasing, lending or allowing other organizations or individuals to use his/her auction practice certificate for carrying out auction activities.

2. Receiving any sum of money or benefit from the person having property put up for auction other than the auction charge and expenses agreed in the contract, or abusing his/ her capacity as an auctioneer to gain other benefits from organizations or individuals.

3. Abusing his/her responsibilities and powers to collude with organizations or individuals for self-seeking purposes.

Chapter III

PROPERTY AUCTION ORGANIZATIONS

 

Article 14. Professional auction organizations

1. Property auction service centers.

2. Property auction enterprises and enterprises which have different business lines including the provision of property auction services (below collectively referred to as property auction enterprises).

Article 15. Property auction service centers

1. A property auction service center (below referred to as center) shall be set up under a decision of the chairperson of a provincial-level People's Committee. Each province or centrally run city may set up only one center.

2. Such center is a revenue-generating non­-business unit having a head office, the legal entity status, seal and bank account. The center's director must be an auctioneer.

Article 16. Property auction enterprises

1. Property auction enterprises shall be set up and operate under the enterprise law and this Decree.

2. In addition to the conditions on setting-up and operation of enterprise of each type under the enterprise law, to provide property auction services, an enterprise must satisfy all the following conditions:

a/ Its representative at law must be an auctioneer;

b/ Having a head office, physical foundations and other equipment necessary for property auction activities.

3. Within 7 working days after obtaining a business registration certificate, an enterprise shall notify in writing its business registration to the provincial-level Justice Department of the locality where it is headquartered.

Article 17. Rights of a professional auction organization

1. To request the person having property put up for auction to provide adequate and accurate information and papers related to such property.

2. To request the successful buyer of auctioned property to pay for such property and fulfill other obligations stated in the contract on purchase and sale of auctioned property.

3. To request the person having property put up for auction to pay property motion charges and expenses and fulfill other obligations stated in the property motion contract.

Article 18. Obligations of a professional auction organization

1. To auction property according to the principles, order and procedures specified in this Decree and take responsibility for property auction outcomes.

2. To issue property auction rules in accordance with this Decree and relevant legal documents.

3. To deliver property assigned to them for preservation or management to its successful buyer, to request the person having property put up for auction to deliver such property to its successful buyer in case the latter is personally managing such property.

4. To provide adequate papers related to property put up for auction to its successful buyer.

5. To comply with the labor, tax, finance and statistics laws.

6. To keep books for monitoring auctioned property and property auction registries.

7. To pay compensation for damage caused by its auctioneers and other employees due to their fault during auction.

8. To perform other obligations stated in the property auction contract or the contract on purchase and sale of auctioned property.

9. To issue auctioneer's cards to auctioneers for use in performing their duties, with the details the same as those stated in their auction practice certificates.

10. To register a list of auctioneers and the modification and supplementation of such um with the provincial-level Justice Department of the locality where it is headquartered.

11. To report on its organizational apparatus and operation to the provincial-level Justice Department on a biannual and annual basis or upon request.

Article 19. District-level property auction councils

1. District-level property auction councils shall be set up under decisions of chairpersons of People's Committees of urban districts, rural districts, towns or provincial cities (below collectively referred to as district-level People’s Committees) for auctioning property that is confiscated material evidences and means used in administrative violations under the la\ handling of administrative violations.

2. A district-level property auction council consists of representatives of the agency competent to decide on property confiscation district-level Finance Division and Justice Division and relevant agencies.

Article 20. Property auction councils special cases

1. A property auction council in a special case shall be set up for auctioning state property being land use rights of great value or involving complicated circumstances or when no professional auction organization can be hired to conduct auction.

A property auction council in a consists of representatives of the competent to decide on the property auction finance agency and justice agency level, and relevant agencies and o


Article 21. Rights and obligations of a property auction council

1. A property auction council defined in Article 19 or 20 of this Decree has the following rights and obligations:

a/ The rights specified in Article 17 and the obligations specified in Clauses 1, 2, 3, 4, 6 and 8, Article 18, of this Decree;

b/ To sign contracts with a professional auction organization for assigning its auctioneer to run the Council's auctions, except property auction councils in special cases defined in Article 20 of this Decree;

c/ To perform the financial and statistical obligations under law.

2. District-level People's Committees shall biannually and annually report to provincial-level Justice Departments on the organization and operation of property auction councils they have set up.

A property auction council in a special case shall report in writing on the outcomes of each auction to the agency which has issued the decision to set up the council up and the provincial-level Justice Department of the locality where the council is set up.

3. The agency which has issued the decision to set up a property auction council shall settle complaints arising after the council dissolves and compensate for damage caused due to the fault
of the council's auctioneers or members during auction.

The property auction council's auctioneers and members shall pay compensation under law for damage caused due to their fault to the agency which has issued the decision to set up the council.

Chapter IV

PROPERTY AUCTION ORDER AND PROCEDURES

 

Article 22. Selection of property auction organizations

Persons having property put up for auction may select a professional auction organization to auction their property in the forms provided in this Decree, unless otherwise provided for by law.

Article 23. Determination of the reserve price of property put up for auction

1. The reserve price of property put up for auction shall be determined before the signing of a property auction contract or before the delivery of the property for auction, unless otherwise provided for by law.

2. The reserve price of property put up for auction shall be determined as follows:

a/ For property put up for auction for judgment enforcement, their reserve price shall be determined under the law on enforcement of civil judgments;

b/ For property put up for auction that is material evidences or means used in administrative violations, their reserve price shall be determined under the law on handling of administrative violations; if the property price cannot be determined under the law on handling of administrative violations, a council shall be set up for determining such price;

c/ For property that is material evidences to be auctioned under decisions of competent state agencies, their reserve price shall be determined under the penal, criminal procedure and other relevant laws;

d/ For state property put up for auction, their reserve price shall be determined under the law on management and use of state property;

e/ For property that is land use rights to be auctioned for allocation of land subject to land use levy or for land lease, their reserve price shall be determined under the land law;

f/ For property under the ownership of individuals or organizations that wish to have such property auctioned, these individuals or organizations shall determine its reserve price or authorize others to do so.

Article 24. Assessment of property put up for auction

1. Property put up for auction shall be assessed upon request or under law.

2. In case of assessment upon request, the assessment requester shall pay assessment expenses, unless otherwise agreed by the parties.

3. In case assessment is required by law, the person having property put up for auction shall pay assessment expenses, unless otherwise provided for by law.

Article 25. Property auction contracts

1. A property auction contract shall be signed between a property auction organization and a person having property put up for auction or his/ her representative.

For property that is material evidences or means used in administrative violations, the district-level property auction service center or property auction council shall, based on the property confiscation decision and property delivery record, conduct an auction without having to sign a property auction contract.

2. A property auction contract must be made in writing and contain the following principal details:

a/ Full name and address of the person having property put up for auction; name and address of the property auction organization;

b/ List and description of the property;

c/ The reserve price of the property;

d/ Time and place of the auction;

e/ Time limit, place and method of delivering the property for auction;

f/ Time limit, place and method of paying for property in case of successful auction;

g/ Auction charges and expenses in case of successful auction, or auction expenses in case of unsuccessful auction;

h/ Rights and obligations of the parties;

i/ Liabilities for contract breaches;

j/ Other details as agreed by the parties.

Article 26. Signing of property auction contracts

1. For the following kinds of property put up for auction, the parties to a property auction contract shall be determined as follows:

a/ For property used for judgment enforcement, such contract shall be signed by the judgment enforcer competent to

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