Circular No. 02/2022/TT-BTP on guiding the selection of auction organizations

CIRCULAR

Guidelines for selecting auction organizations

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Pursuant to the Auction Law dated November 17, 2016;

Pursuant to Decree No. 96/2017/NĐ-CP dated August 16, 2017, issued by the Government on the functions, tasks, powers, and organizational structure of the Ministry of Justice;

At the proposal of the Director of the Department of Judicial Support;

The Minister of Justice issues the Circular guiding the selection of auction organizations.

Article 1. Scope of Regulation and Applicability

1. This Circular guides the selection of auction organizations in accordance with Article 56 of the Auction Law.

2. This Circular applies to persons with auctioned assets, auction organizations, and other agencies, organizations, and individuals related to asset auctions as stipulated in Clause 1, Article 4 of the Auction Law.

3. This Circular does not apply to cases where auction organizations are selected through bidding as provided by law. In cases where auction organizations are selected through bidding, they shall be carried out in accordance with Article 56 of the Auction Law and laws on bidding.

Article 2. Principles for Selecting Auction Organizations

1. Compliance with legal provisions, ensuring compliance with criteria specified in Article 56 of the Auction Law, Article 3, and Appendix I attached to this Circular.

2. To ensure accuracy, independence, honesty, transparency, fairness, and objectivity.

3. Auction organizations bear responsibility for the completeness and accuracy of information in their registration files for selection and must face adverse consequences due to incomplete or inaccurate declarations as specified in Articles 5 and 6 of this Circular.

Article 3. Content of Selection Criteria for Auction Organizations

1. Group of criteria regarding necessary physical facilities and equipment to ensure the auction of specific types of assets.

2. Group of criteria regarding feasible and effective auction plans.

3. Group of criteria regarding the capacity, experience, and reputation of auction organizations.

4. Group of criteria regarding appropriate service fees and costs for auctioning assets.

5. Being listed in the list of auction organizations published by the Ministry of Justice.

6. Other relevant criteria determined by the person with auctioned assets.

Article 4. Public Announcement of Selection Criteria for Auction Organizations assets

1. After receiving the competent authority's decision on asset auction, the person with auctioned assets publicly announces on their own electronic information website and the National Electronic Portal for Auctions about the selection of auction organizations with all criteria specified in Article 3 and Appendix I attached to this Circular.

2. The person with auctioned assets publicly announces the selection of auction organizations at least three working days before the selection decision date, except when otherwise prescribed by law.

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2. The person with auctioned assets scores based on information in the registration file for selection of auction organizations according to all criteria specified in Appendix I attached to this Circular and handles situations as prescribed in Clauses 4, 5, 6, and 7 of this Article.

3. The selected auction organization is the one with the highest total score from all criteria combined. If two or more organizations have the same highest total score, the person with auctioned assets will consider and decide to select one of them.

4. If within twelve months from the date of submitting the application, the auction organization has a legal representative or auctioneer who is convicted by a final judgment for violating regulations on auction activities due to actions under the name, for the benefit, or with the direction, management, or approval of that organization, then that auction organization will be deducted 50% of its total score.

5. If within twelve months from the date of submitting the application, the auction organization falls into any of the following cases, it will be handled as follows:

a) If an auctioneer of the organization is administratively punished for violating auction regulations, each auctioneer punished will result in a deduction of 5% of the total score for the auction organization;

b) If the auction organization is administratively punished for violating auction regulations, excluding violations prescribed in point c of this clause, each administrative punishment will result in a deduction of 5% of the total score for the auction organization;

c) If the auction organization fails to publicly announce the auction on the National Electronic Portal for Auctions as required by the competent authority, it will be deducted 20% of its total score;

d) If an auctioneer of the organization is convicted by a final judgment for violating regulations on auction activities but does not fall under the case prescribed in Clause 4 of this Article, the auction organization will be deducted 20% of its total score.

6. If within twelve months from the date of submitting the application, the auction organization has been refused to have its file examined and evaluated as prescribed in Clause 7 of this Article or has had its selection results canceled as prescribed in Clause 2, Article 6 of this Circular, it will be deducted 70% of its total score.

7. If there is evidence that the auction organization intentionally provides inaccurate or fabricated information about criteria in the file, the person with auctioned assets will refuse to examine and evaluate the file of that auction organization.

8. If only one auction organization registers by the deadline for registering to participate in the selection process, the person with auctioned assets will consider and decide to select that organization if it meets the provisions of the Auction Law, this Circular, and related laws.

8. In case, up to the deadline for submitting registration documents to participate in the selection process, only one auction organization registers, then the person with the asset shall consider and decide to select that organization if it meets the provisions of the Auction Law, this Circular, and relevant laws.

Article 6. Notification, cancellation of the result of selecting the auction organization

1. Within three working days from the date of the result of selecting the auction organization, the person with the asset shall publicly notify the result on their own website (if available) and the National Electronic Portal for Asset Auctions. The notification of the result of selecting the auction organization shall be made according to the model prescribed in Appendix II attached to this Circular.

2. After receiving information from competent authorities or having verified results confirming that the selected auction organization intentionally provided inaccurate or fabricated information about criteria in the registration dossier, the person with the asset shall act as follows:

a) In case no service contract for auction has been signed, the person with the asset shall cancel the result of selecting the auction organization;

b) In case a service contract for auction has been signed but the auction organization has not yet received bidding participation dossiers from participants, the person with the asset shall cancel the result of selecting the auction organization and unilaterally terminate the service contract for auction with that auction organization;

c) In case a service contract for auction has been signed and the auction organization has already received bidding participation dossiers from participants, the person with the asset shall consider and decide to cancel the result of selecting the auction organization and terminate the service contract for auction if such agreement exists in the service contract, or request the Court to declare the service contract for auction void according to the law.

3. Within three working days from the date the result of selecting the auction organization is canceled as prescribed in point a and point b, clause 2 of this Article, the person with the asset shall base on the scoring result prescribed in clause 1 of this Article to select the auction organization with the highest adjacent total score to organize the auction; in case the service contract for auction is terminated or declared void by the Court as prescribed in point c, clause 2 of this Article, the person with the asset shall reorganize the selection of the auction organization.

4. The person with the asset shall send the Ministry of Justice, the Department of Justice of the province or centrally-administered city where the person with the asset and the auction organization have their headquarters, and simultaneously publish publicly on their own website (if available) and the National Electronic Portal for Asset Auctions information about the cancellation of the selection result prescribed in clause 2 of this Article and the intentional provision of inaccurate or fabricated information about criteria in the registration dossier for selection by the auction organization as prescribed in clause 7, Article 5 and clause 2 of this Article.

Article 7. Cases where the person with the asset refuses to evaluate the registration dossier for selection of the auction organization

Based on the principles of asset auction prescribed in clause 2, Article 6 of the Auction Law and the principles of selecting the auction organization prescribed in clause 2, Article 2 of this Circular, the person with the asset shall refuse to evaluate the registration dossier for selection of the auction organization in the following cases:

1. The owner of the asset, the person authorized by the owner of the asset to sell the asset at auction, the person who has the right to put the asset up for sale by auction according to an agreement or according to the law, the person signing the service contract for auction is the spouse, father, mother, foster father, foster mother, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother, sister, younger brother, younger sister, brother-in-law, sister-in-law, husband's younger brother, wife's younger sister, or wife's younger brother of the head of the Auction Service Center, the legal representative, Chairman of the Board of Members, member of the Board of Members, or partner of the auction company.

2. The owner of the asset, the person authorized by the owner of the asset to sell the asset at auction, the person who has the right to put the asset up for sale by auction according to an agreement or according to the law, the person signing the service contract for auction is an individual or organization capable of controlling the activities of the auction organization through ownership, acquisition of shares, or through decision-making in the auction organization.

3. Other cases as prescribed by law.

Article 8. Responsibilities of the person owning the auctioned property and the management agency of the person owning the auctioned property

1. Responsibilities of the owner of the auctioned property:

a) Publicly announce the selection, evaluation, and scoring criteria for the selection process and be responsible for the results of the organization selection for the property auction;

b) Examine and verify information reflecting intentional provision of inaccurate or fabricated information regarding the selection criteria in the registration documents for participation in the selection process by the property auction organization;

c) Report to the competent authority on the selection process and the results of the organization selection for the property auction, along with verification results in cases where the property auction organization intentionally provides inaccurate or fabricated information regarding the selection criteria in the registration documents for participation in the selection process;

d) Other responsibilities as prescribed by the Auction Law, this Circular, and relevant laws.

2. Responsibilities of the management agency of the person owning the auctioned property:

a) Require persons under its management who own auctioned property to report on the verification results, cancel the selection results of the auction organization, unilaterally terminate, or terminate the service auction contract, or request the court to declare the service auction contract void in cases where the property auction organization intentionally provides inaccurate or fabricated information regarding the selection criteria in the registration documents for participation in the selection process;

b) Take measures to handle individuals and organizations involved in violations during the evaluation and scoring of the selection process for the property auction organization within its authority;

c) Other responsibilities as prescribed by the Auction Law, this Circular, and relevant laws.

Article 9. Tasks and Authorities of the Department of Legal Assistance, Relevant Units under the Ministry of Justice, and Provincial Departments of Justice

1. The Department of Legal Assistance is the advisory unit assisting the Minister of Justice in managing and enforcing the law on property auctions, with the following tasks and authorities:

a) To provide guidance and answer questions related to the implementation of this Circular;

b) Inspect, audit, and handle violations related to the selection of property auction organizations within its authority;

c) Publish on the national electronic portal for property auctions information about property auction organizations that fail to publicly announce the auction process as stipulated in Article 57 of the Auction Law;

d) Other tasks and authorities as prescribed by the Auction Law, this Circular, and relevant laws.

2. The Inspectorate of the Ministry of Justice and relevant units under the Ministry of Justice shall perform their tasks and authorities related to the selection of property auction organizations; cooperate with the Department of Legal Assistance in implementing the tasks and authorities prescribed in Clause 1 of this Article.

3. Provincial Departments of Justice have the following tasks and authorities:

a) Cooperate in providing information about the organization and activities of property auction organizations when requested by the person owning the auctioned property in the selection process;

b) Assist the People's Committee of the province or centrally-administered city in inspecting, auditing, and handling violations related to the selection of property auction organizations by the person owning the auctioned property within its authority;

c) Publish on the Department of Justice's electronic portal and send to the Ministry of Justice information about property auction organizations that fail to publicly announce the auction process as stipulated in Article 57 of the Auction Law;

d) Other tasks and authorities as prescribed by the Auction Law, this Circular, and relevant laws.

Article 10. Effectiveness

This Circular takes effect from March 25, 2022.