On October 3, 2023, the Supreme People's Court issued Official Letter 196/TANDTC-PC answering some questions in the judicial work of the People's Courts. According to ATA, Official Dispatch 196 provides many new guidelines in applying the law and has high value in practice. Here, ATA will update important and notable contents of Official Dispatch 196.
1. If an enterprise has many legal representatives, who will represent the enterprise in the proceedings?
Question: in case the litigant is an enterprise with many legal representatives but the enterprise's charter does not stipulate the responsibilities and powers of these legal representatives, the Court determines how the legal representative of the enterprise participates in the proceedings in the process of settling the case.
Answer: under Clauses 1 and 2 Article 12 of the Law on Enterprise 2020, the representative of the enterprise participating in the proceedings in this case is:
+ All legal representatives if not specified in the Charter; or
+ One of the legal representatives is appointed in the Charter.
2. The mortgage agreement remains valid in case one spouse is unaware that the other has entered into the mortgage agreement
Question: in case the mortgage agreement is a joint property of husband and wife, the husband or wife in the name of the mortgage agreement to borrow money from the Bank and the person who is not in the name does not know, is this mortgage agreement valid or not?
Answer: Under Clause 1, Article 32 of the Law on Marriage and Family 2014, in case the husband or wife in the name of the owner of the deposit account at the bank (in the name of the cardholder, passbook) is considered a person who has the right to establish and perform transactions related to that asset, the passbook mortgage contract takes legal effect, except in the case of dealing with a third person who is not bona fide as prescribed.
3. Principles of selection of collateral for debt recovery
Question: a borrows a sum of money from the Bank, to secure the said loan of A, B, C, D, E has secured it with its land use rights. A violates the obligation to repay the debt, the petitioning bank requires A to pay the above loan, and if the debt is not repaid, then request to dispose of the collateral of B, C, D, and E to recover the debt. The Bank has not determined the specific scope of security of each collateral for the loan of A and B, C, D, E nor has it determined the scope of its assets securing the loan of A. How is this situation handled?
Answer: under Clause 2 Article 5 of Decree No. 21/2021/ND-CP, in case the parties do not agree on the scope of security for the performance of obligations of each asset and the selection of collateral for disposal, any of the secured assets of B, C, D, and E are all used to ensure the performance of all obligations; the Bank reserves the right to choose the collateral to dispose of or dispose of all the collateral.
4. Validity of a mortgage contract when the subject matter of the contract is the land use right whose expiry date has expired
Question: handling direction in case the collateral is an agricultural land use right that has expired in the land use right certificate stated in the land use right certificate.
Answer: under Clause 1, Article 188 of the Law on Land 2013, the following cases:
a/ At the time of signing the mortgage contract, if the agricultural land use right has expired, the land use proper mortgage contract is invalid.
b/ At the time of signing the mortgage contract, the right to use agricultural land still has an expiry date but after an expiry period, it must apply for an extension; If extended, the contract for mortgage of the right to use will continue to be valid, if it is not opened, the contract will be terminated because the subject matter of the contract is no longer available.
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