Circular No. 23/2010/TT-BTP detailing and guiding the implementation of Government Decree No. 17/2010/NĐ-CP dated March 4, 2010 on the sale of assets through public auction

CIRCULAR

Providing detailed regulations and guidance for implementation

Decree No. 17/2010/NĐ-CP dated March 4, 2010

of the Government on auctioning assets

___________________

BASED ON Decree No. 17/2010/NĐ-CP dated March 4, 2010 of the Government on auctioning assets;

Pursuant to Decree No. 93/2008/NĐ-CP dated August 22, 2008, promulgated by the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

The Ministry of Justice provides detailed regulations and guidance for implementation of Decree No. 17/2010/NĐ-CP dated March 4, 2010 of the Government on auctioning assets (hereinafter referred to as Decree No. 17/2010/NĐ-CP) as follows:

PART I

TRAINING AUCTION PRACTITIONERS

Article 1. Auction Practitioner Training Courses

1. Auction practitioner training courses are organized in a centralized form to equip trainees with basic legal knowledge about asset auctions, professional ethics, and skills in conducting auctions, thereby standardizing the professional expertise, vocational skills, and professional ethics of the auctioneer workforce.

The training institutions organize these training courses periodically or based on actual training needs.

2. Trainees register to participate in the training courses according to the enrollment announcement issued by the training institution.

3. The Minister of Justice approves the framework curriculum of the auction practitioner training course. The training period lasts three months, including time spent at the training institution and practical training at professional auction organizations. The training period at the institution includes theoretical study and practical work, with practical work accounting for half of the total class hours.

Article 2. Training Institutions for Auction Practitioners

1. The training institution for auction practitioners as stipulated in Clause 3, Article 6 of Decree No. 17/2010/NĐ-CP is the Judicial Academy under the Ministry of Justice.

Rights of the training institution for auction practitioners:

a) Enroll trainees in accordance with the target group specified in Clause 1, Article 6 of Decree No. 17/2010/NĐ-CP;

b) Issue a Certificate of Auction Practitioner Training to trainees who meet the conditions of the training course;

c) Collect tuition fees from trainees to cover reasonable costs of the training course. The collection, management, and use of tuition fee revenues shall be carried out in accordance with the provisions of the law.

Responsibilities of the training institution for auction practitioners:

a) Develop teaching materials consistent with the framework curriculum of the auction practitioner training course;

b) Ensure appropriate facilities and instructors for the scale of the auction practitioner training course;

c) Report to the Ministry of Justice on the content of the training program, teaching materials, list of trainees, and instructors participating in teaching no later than ten working days before the start of the training course;

d) Organize practical training and evaluate the results of such training for trainees;

e) Submit a report on the organization of the auction practitioner training course to the Ministry of Justice within thirty days from the end of the course.

Article 3. Reduction in Auction Practitioner Training Duration

1. Individuals holding a bachelor's degree in law as specified in Clause 2, Article 7 of Decree No. 17/2010/NĐ-CP may have their legal knowledge training duration reduced but not exceeding one-third of the total number of class hours allocated to legal knowledge in the auction practitioner training course curriculum.

2. The training institution for auction practitioners implements the reduction in training duration based on this Circular, the curriculum of the auction practitioner training course, and its own training regulations.

Article 4. Internship in Auction Practice

1. Vocational training institutions for auction practice shall be responsible for contacting professional auction organizations to accept trainees for internship, guide them in writing reports on internship results, and evaluate the trainees' internships.

2. Property auction service centers and property auction enterprises accepting trainees for internship shall be responsible for creating conditions for trainees to intern; allowing trainees to participate in property auctions; assigning experienced auctioneers to guide, supervise, and comment on the trainees' internship process.

3. Trainees must comply with the internal regulations and rules of the property auction organization where they are interning, perform tasks according to the guidance of the auctioneer; complete and submit the internship result report to the vocational training institution for auction practice.

Chapter II

AUCTIONEER

Article 5. Registration of Auctioneer List

1. Professional auction organizations shall register the list of auctioneers and changes or additions to the list of auctioneers of their organization at the Department of Justice where the property auction organization's main office is located; register the list of auctioneers, changes, or additions to auctioneers of branches of property auction enterprises at the Department of Justice where the branch's main office is located.

The registration dossier includes the following documents:

a) A request document from the professional auction organization, accompanied by a list of auctioneers;

b) A copy of the Auction Practice Certificate;

c) A copy of the employment decision, appointment decision, or labor contract.

Within five working days from the date of receiving the dossier, the Department of Justice shall record in the register regarding the registration of auctioneers, additions, or changes to auctioneers and notify the professional auction organization in writing.

Article 6. Auctioneer Card

1. The Director of the Property Auction Service Center or Property Auction Enterprise shall issue the Auctioneer Card to the auctioneer for use during work at the Center or Enterprise according to Model No. 08 issued together with this Circular and the card template provided by the Ministry of Justice.

2. Auctioneers must wear the Card while conducting property auctions.

Article 7. Revocation of Auction Practice Certificate

1. An individual whose Auction Practice Certificate is revoked when they do not regularly work at a property auction organization and no longer engage in the field of property auction as stipulated in point b, Clause 1, Article 11 of Decree No. 17/2010/ND-CP, which is the case where that person does not belong to the category of individuals receiving salary or wages continuously for one year at the Property Auction Service Center or Property Auction Enterprise.

2. When there is an auctioneer who falls under the circumstances for revocation of the Auction Practice Certificate as stipulated in Article 11 of Decree No. 17/2010/ND-CP, the property auction organization shall not assign that auctioneer to conduct property auctions, immediately notify in writing the Department of Justice where the main office of the property auction organization is located or the Department of Justice where the Branch's main office is located, specifying the reasons why that person falls under the circumstances for revocation of the Certificate along with supporting documents (if any).

In cases where other organizations or individuals discover that an individual holding an Auction Practice Certificate falls under the circumstances for revocation of the Certificate, they shall notify the Department of Justice where the main office of the property auction organization with such an individual is located. The Department of Justice shall be responsible for examining and verifying to handle according to its authority.

At the latest seven working days from the date the Department of Justice discovers an individual holding an Auction Practice Certificate falling under the circumstances for revocation of the Certificate, the Department of Justice must issue a document requesting the Ministry of Justice to revoke the Certificate, accompanied by supporting documents proving that the individual falls under the circumstances for revocation of the Certificate.

3. Within fifteen working days from the date of receipt of the Department of Justice's request document, the Minister of Justice shall issue a decision to revoke the Auction Practice Certificate; for complex cases, it shall not exceed thirty days. In cases where there is insufficient basis to revoke the Certificate, the Ministry of Justice shall notify in writing the relevant agencies, organizations, or individuals.

The decision to revoke the Auction Practice Certificate shall be sent to the individual whose Certificate is revoked, the property auction organization where the individual works, and the Department of Justice where the main office of the property auction organization is located.

4. Individuals whose Auction Practice Certificate is revoked must return the Auction Practice Certificate and Auctioneer Card no later than ten working days from the date the Certificate revocation decision takes effect.

Article 8. Issuance of replacement Auctioneer Cards shall be carried out in accordance with the provisions of Decree No. 05/2005/NĐ-CP.

1. Within six months from the date this Circular takes effect, persons who have been issued Auctioneer Cards in accordance with Decree No. 05/2005/NĐ-CP dated January 18, 2005 of the Government on Auction Sales of Assets must complete procedures to request the Ministry of Justice to issue replacement Auctioneer Cards for Professional Practice Certificates in Auctions.

The application package for replacement includes:

a) An application form requesting the Ministry of Justice to issue replacement Auctioneer Cards according to Model No. 07 attached to this Circular;

b) A copy of the Auctioneer Card;

c) Two photographs measuring 3 cm x 4 cm.

2. Within fifteen working days from the date of receiving a valid application package and the fee for issuing the Professional Practice Certificate in Auctions as prescribed, the Ministry of Justice shall issue the Professional Practice Certificate in Auctions to the applicant; in case of refusal, the reasons shall be notified in writing. The holder of the Professional Practice Certificate in Auctions must return the previously issued Auctioneer Card.

Article 9. Conducting Auction Sales by the District Asset Auction Council

In cases where the District Asset Auction Council enters into a contract with a professional auction organization to appoint an auctioneer to conduct the auction sale of assets in accordance with point b, Clause 1, Article 21 of Decree No. 17/2010/NĐ-CP, the auctioneer shall be responsible for conducting the auction sale of assets by the District Asset Auction Council. Upon completion of the auction, the auctioneer shall prepare the asset purchase contract and transfer it to the Chairman of the District Asset Auction Council to sign the contract with the successful bidder.

Chapter III

ORGANIZATIONS CONDUCTING AUCTION SALES AND PROCEDURES FOR AUCTION SALES OF ASSETS

PROCEDURE FOR AUCTIONING ASSETS

Article 10. Persons with Assets for Auction Sale

Persons with assets for auction sale as stipulated in Clause 6, Article 2 of Decree No. 17/2010/NĐ-CP include the following individuals or organizations:

1. The owner of the asset or the person authorized by the owner to sell the asset.

2. The entity responsible for transferring the asset for auction sale, which is the agency deciding to confiscate and transfer the asset to the state treasury as a violation of administrative regulations under the law on handling administrative violations.

3. Agencies, organizations, units entrusted with managing and using or primarily handling state assets.

4. Banks, credit institutions regarding secured assets.

5. Enforcement officers, civil enforcement agencies, other individuals or organizations authorized by law to handle another person's property through auction sales.

Article 11. Auctioning of assets by enterprises

Article 11. Asset Auction Enterprises

1. Asset auction enterprises may establish branches within and outside the province or centrally-run city where the enterprise has its headquarters. Branches of asset auction enterprises shall be established and operate in accordance with the law on enterprises and the law on auction sales of assets.

2. In cases where an asset auction enterprise establishes a branch in the province or centrally-run city where the enterprise has its headquarters, within seven working days from the date of issuance of the Business Registration Certificate for the branch, the enterprise must notify in writing the establishment of the branch to the Department of Justice at the location of the enterprise's headquarters, accompanied by a copy of the Enterprise Business Registration Certificate or a copy of the Business Registration Certificate for the branch.

If the enterprise establishes a branch in a different province or centrally-run city from where the enterprise has its headquarters, within seven working days from the date of issuance of the Business Registration Certificate for the branch, the asset auction enterprise must notify in writing the establishment of the branch to the Department of Justice at the location of the branch, accompanied by a copy of the Enterprise Business Registration Certificate and a copy of the Business Registration Certificate for the branch.

a) Name and main office address of the enterprise;

3. The contents of the notification by the asset auction enterprise as stipulated in Clause 2 of this Article include the following:

b) The business sector of the enterprise;

c) The name of the branch;

d) The address of the branch's headquarters;

đ) The content and scope of activities of the branch;

e) The full name, place of residence, and ID card number of the head of the branch.

Article 12. Auction Council for Assets in Special Cases

1. The determination of state assets with high value and complexity shall be decided by the authorized representative of the owner in accordance with the laws on management and use of state assets and the guidance of the Ministry of Finance.

2. The case of not being able to hire a professional auction organization is when the public announcement period for hiring a professional auction organization to conduct the asset auction has expired without any organization registering to participate or conducting a tender without any professional auction organization winning the bid.

Public announcements regarding the hiring of a professional auction organization to conduct the asset auction must be sent to local professional auction organizations and must be announced at least twice, each time separated by three days, through central or local mass media.

Article 13. Rules for Asset Auctions

1. The asset auction service center, asset auction enterprises, and the Auction Council shall issue their own asset auction rules in accordance with Decree No. 17/2010/NĐ-CP; strictly implement the asset auction rules during the organization of the auction.

2. The asset auction rules shall include the following main contents:

a) Conditions and methods for registering to participate in the auction;

b) Provisions on participation fees and deposits;

c) Provisions on the method of auctioning;

d) Principles for determining bid increments;

d) Provisions on withdrawing registration to participate in the auction and handling the advance payment of those who withdraw their registration within the registration period;

e) Situations where participation in the auction cannot continue;

g) Situations where the advance payment will not be refunded;

h) Other necessary contents related to the organization of asset auctions.

Article 14. Public Notice and Announcement of Asset Auctions

1. The asset auction organization shall post the asset auction notice in accordance with Clause 1 of Article 28 of Decree No. 17/2010/NĐ-CP.

2. For immovable property subject to auction, when posting at the location of the immovable property, the asset auction organization shall retain documentation and images of the posting in the file or establish a document confirmed by the People's Committee of the commune, ward, or town where the immovable property is located regarding the posting and public announcement.

Article 15. Procedure for Conducting an Asset Auction

1. The conduct of an asset auction must follow the asset auction procedures stipulated in Article 34 of Decree No. 17/2010/NĐ-CP and the asset auction rules established by the asset auction organization.

2. The auctioneer announces the bidding increment from the start of the asset auction and may adjust the bidding increment appropriately for each round of bidding while managing the auction.

3. For direct oral bidding, the auctioneer repeats the starting price, requiring participants to begin bidding from the starting price. After each participant bids, the auctioneer repeats the highest bid three times clearly and accurately, each repetition separated by about thirty seconds. After three repetitions, if there is no further bidder, the auctioneer announces the result.

4. For bidding by ballot, the number of rounds of voting and the method of conducting the vote must be agreed upon by the asset auction organization or the auctioneer and the person selling the asset.

In the case of multiple rounds of voting, each participant receives a bidding sheet, writes down the desired bid price, and places it in the ballot box. After collecting all distributed ballots, the auctioneer announces the highest bid price of the round without revealing the name of the highest bidder, then distributes new ballots to participants to start the next round. The auction ends when no one requests to bid further.

5. Other forms of auction agreed upon by the asset seller and the asset auction organization must comply with the principles, procedures, and processes for asset auctions stipulated in Decree No. 17/2010/NĐ-CP and this Circular.

Article 16. Auctioning the right to use land when the State grants land with payment for land use or leases land

1. The land development fund organization or the agency assigned by the competent People's Committee to handle the auctioning of the right to use land must enter into an auction property sale contract with a professional auction organization in accordance with Clause 2 of Article 25 of Decree No. 17/2010/NĐ-CP to carry out the auctioning of the right to use land; collect the proceeds from the auctioned right to use land from the buyer and pay the auction fees to the professional auction organization.

2. When carrying out the auctioning of the right to use land, the professional auction organization shall perform the following tasks:

a) Announce the auction, collect registration fees for participation in the auction, and the advance payment amount;

b) Conduct the auction according to the procedures stipulated in Article 34 of Decree No. 17/2010/NĐ-CP and Article 15 of this Circular, without signing a purchase and sale contract for the auctioned property but transferring all the auction session files within the latest three working days along with the list of successful bidders to the land development fund organization or the agency assigned by the competent People's Committee to handle the auctioning of the right to use land to complete the necessary procedures in accordance with the laws on land.

3. Based on the actual situation of the locality, the provincial or centrally-administered city People's Committee shall consider and issue regulations on auctioning the right to use land for granting land with payment for land use or leasing land in compliance with Decree No. 17/2010/NĐ-CP, this Circular, and the laws on land.

The content of the regulation must clearly define the agencies or units responsible for entering into contracts for the auctioning of the right to use land; the agencies or units responsible for implementing the procedures to request the competent People's Committee to decide on granting land or leasing land and submitting to the competent state authority for issuance of the Land Use Right Certificate in accordance with the laws on land.

In cases where the competent People's Committee at the local level assigns a professional auction organization to carry out the auctioning of the right to use land, the rights and obligations of the related units must be clearly defined in the regulation on auctioning the right to use land for granting land with payment for land use or leasing land in the locality.

Article 17. Handling the advance payment in cases of refusal to purchase auctioned property that is evidence of administrative violations or enforcement assets

1. For property that is evidence of administrative violations, the advance payment of the person refusing to purchase the auctioned property as stipulated in Article 39 of Decree No. 17/2010/NĐ-CP belongs to the entity authorized to confiscate the evidence of administrative violations. This amount shall be managed and used in accordance with the guidelines of the Ministry of Finance.

2. For enforcement assets, the advance payment of the person refusing to purchase the auctioned property as stipulated in Article 39 of Decree No. 17/2010/NĐ-CP belongs to the civil enforcement agency authorized to handle the enforcement asset and shall be used to settle the costs incurred in handling the asset and the costs of auctioning the asset. This amount shall be managed and used in accordance with the guidelines of the Ministry of Finance.

Article 18. Establishment of work tracking registers and retention of files

1. The auction service centers, auction enterprises, and auction councils must establish work tracking registers as follows:

a) Auction registration book: Track the registration to participate in auctions, the number of registrants, and other necessary information (Model No. 01 issued together with this Circular);

b) Auctioned property tracking book: Track the type and quantity of auctioned properties, the results of auctioning properties, the information of the buyer obtaining the property, and other necessary information (Model No. 02 issued together with this Circular).

2. The types of registers specified in Clause 1 of this Article and work files must be kept at the headquarters of the auction organizations.

The recording, preservation, and retention of work tracking registers, work files, labor contracts, auction sale contracts, and purchased property sale contracts shall be carried out in accordance with the provisions of the Labor Law, the Auction Law, and other relevant laws.

Chapter IV

IMPLEMENTATION

Article 19. Tasks of the Department of Justice

In addition to the tasks and powers stipulated in Clause 2 of Article 53 of Decree No. 17/2010/NĐ-CP, the Department of Justice of provinces and centrally-administered cities shall have the responsibility to perform the following specific tasks:

1. Establish a list of auctioneers, update changes and additions to the list of auctioneers of auction service centers, auction enterprises, and branches of auction enterprises within the province or city.

2. Coordinate with the Department of Planning and Investment to review, monitor, and update information related to auction enterprises in the locality.

3. Publish the list and update quarterly the list of auction service centers, auction enterprises, branches of auction enterprises, and lists of auctioneers within the province or city on the electronic information website of the People's Committee of the province or centrally-administered city and the Department of Justice for organizations and individuals to know and contact.

4. Monitor, detect, and send a document requesting the Ministry of Justice to revoke the Professional Practice Certificate according to regulations.

5. Take the lead and coordinate with the Department of Planning and Investment, relevant departments to conduct regular inspections of organizational and operational activities of auction enterprises, and spot checks when necessary or upon request of the Ministry of Justice, the People's Committee of the province or centrally-administered city where the organization's headquarters is located.

The inspection targets are professional auction organizations, branches of auction enterprises, and auction councils within the local area. The time and content of regular inspections must be notified to the inspected agencies or organizations at least seven days before the inspection.

6. Other tasks as prescribed by law.

Article 20. Reporting System

1. Every six months and annually, auction service centers, auction enterprises, and the People's Committees of districts where the auction councils were established shall report on their organizational and operational activities to the Department of Justice where the organization's headquarters is located according to Model No. 09 and Model No. 10 issued together with this Circular. The deadline for submitting periodic reports shall be implemented according to the guidance of the Ministry of Justice and the Department of Justice.

In addition to periodic reports, in case of emergencies, auction service centers, auction enterprises, and the People's Committees of districts where the auction councils were established shall report on their organizational and operational activities according to the requirements of the Department of Justice, the People's Committee of the province or centrally-administered city, or other competent state agencies.

2. Annually, the Department of Justice shall report to the People's Committee of the province or centrally-administered city and the Ministry of Justice on the organizational and operational activities of auctions in the locality according to Model No. 12 issued together with this Circular. The deadline for submitting periodic reports shall be implemented according to the guidance of the People's Committee of the province or centrally-administered city and the Ministry of Justice.

In addition to periodic reports, in case of emergencies, the Department of Justice shall report on the organizational and operational activities of auctions in the locality according to the requirements of the People's Committee of the province or centrally-administered city and the Ministry of Justice.

Article 21. Transitional Provisions

1. For auction councils established before July 1, 2010, which have accepted the sale of land use rights for certain specific plots of land and have completed compensation and land clearance procedures, and have an auction plan approved by competent state authorities before July 1, 2010, they may continue to implement the sale of those plots of land according to the procedures and formalities prescribed in the Auction Regulations for Granting Land Use Rights through Auction or Leasing Land for a Fee issued together with Decision No. 216/2005/QĐ-TTg dated August 31, 2005 of the Prime Minister and Decree No. 05/2005/NĐ-CP dated January 18, 2005 of the Government on Auctioning Assets.

2. For power-of-attorney auction sales contracts that have been implemented before July 1, 2010, if not yet completed, they shall continue to complete the remaining tasks according to the procedures and formalities prescribed in Decree No. 05/2005/NĐ-CP dated January 18, 2005 of the Government on Auctioning Assets.

Article 22. Forms attached to the Circular

The Circular promulgates the following booklets and forms:

1. Property auction registration booklet (Form No. 01).

2. Property auction tracking booklet (Form No. 02).

3. Receipt form (Form No. 03).

4. Property auction record (Form No. 04).

5. Application for issuance of Auction Practice Certificate (Form No. 05).

6. Application for reissuance of Auction Practice Certificate (Form No. 06).

7. Application for exchange of Auctioneer Card (Form No. 07).

8. Auctioneer Card (Form No. 08).

9. Report of the Service Center for Property Auctions, property auction enterprises (Form No. 09).

10. Report of the People's Committee of the district on the organization and operation of property auctions by the District Property Auction Council (Form No. 10).

11. Report of the Property Auction Council in special cases (Form No. 11).

12. Report of the Department of Justice on the organization and operation of property auctions at the local level (Form No. 12).

Article 23. Effectiveness of Implementation

1. This Circular takes effect from January 24, 2011.

This Circular replaces Circular No. 03/2005/TT-BTP dated May 4, 2005 of the Ministry of Justice guiding certain provisions of Decree No. 05/2005/NĐ-CP dated January 18, 2005 of the Government on property auctions.

2. Departments of Justice, Service Centers for Property Auctions, property auction enterprises, auctioneers and related organizations and individuals are responsible for implementing this Circular.

Any difficulties encountered during implementation should be reported to the Ministry of Justice for guidance and resolution./.