CIRCULAR

GUIDING A NUMBER OF MATTERS REGARDING THE COMPETENCE, ORDER AND PROCEDURES FOR REGISTRATION OF, AND SUPPLY OF INFORMATION ON, SECURITY TRANSACTIONS AT CENTERS FOR REGISTRATION OF TRANSACTIONS AND ASSETS OF THE NATIONAL REGISTRY FOR SECURITY TRANSACTIONS UNDER THE JUSTICE MINISTRY

Pursuant to the June 14, 2005 Civil Code;
Pursuant to the Government's Decree No. 62/2003/ND-CP of June 6, 2003, defining the functions, tasks, powers and organizational structure of the Justice Ministry;
Pursuant to the Government's Decree No. 08/2000/ND-CP of March 10, 2000, on registration of security transactions,
In order to ensure the uniformity of the registration of security transactions, the Justice Ministry guides a number of matters regarding the competence, order and procedures for registration of, and supply of information on, security transactions at the centers for registration of transactions and assets of the National Registry for Security Transactions under the Justice Ministry as follows:

I. GENERAL PROVISIONS

1. Scope of application

This Circular guides the following matters:

1.1. The competence, tasks and powers of centers for registration of transactions and assets (below referred to as registration centers) of the National Registry for Security Transactions under the Justice Ministry for registration of, and supply of information on, security transactions;

1.2. The procedures for registration of, and supply of information on, security transactions are carried out at registration centers.

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2. Cases of registration at registration centers

2.1. Cases of registration at registration centers include:

a/ Mortgage of assets, including mortgage of assets to be formed in the future and mortgage of assets to secure the future performance of obligations (below collectively referred to as security transactions);

b/ Modification, error correction, extension or deletion of asset mortgage registrations provided for at Point 2.1.a of this Clause;

c/ Written notices on disposal of security assets for registered security transactions;

d/ Other cases of registration as specified by law.

2.2. Security assets in the cases specified at Point 2.1 of this Clause are the following, except for aircraft, seagoing ships, land use rights, residential houses, other architectures, forest trees and perennial trees:

a/ Automobiles, motorcycles, other motorized means of road transport; means of railway transport;

b/ Fishing ships; means of inland waterway transport;

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d/ Vietnamese currency and foreign currencies;

e/ Stocks, bonds, bills of exchange, promissory notes, deposit certificates, checks and other valuable papers which are specified by law, can be monetized and are permitted for transactions;

f/ Economic rights deriving from copyright, industrial property rights or rights to plant varieties; rights to claim debts and other economic rights of securing parties originating from contracts or other legal grounds;

g/ Property rights to amounts of capital contributed to enterprises;

h/ Right to exploit natural resources which are used to secure the performance of civil obligations according to the provisions of law;

i/ Profits, right to receive insurance sums for security assets or other benefits obtained from security assets specified at Point 2.2 of this Clause;

j/ Other movables specified in Clause 2, Article 174 of the Civil Code;

k/ Assets attached to land as specified in Clause 3, Section I of Joint Circular No. 05/2005/TTLT-BTP-BTNMT of June 16, 2005, of the Justice Ministry and the Natural Resources and Environment Ministry, guiding the registration of mortgage of, or guarantee with, land use rights or assets attached to land.

3. Competence of registration centers

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Individuals and organizations defined in Clause 6 of this Section may request one of those registration centers to carry out the registration of security transactions.

All individuals and organizations may request one of those registration centers to supply information on security transactions.

3.2. The registration of, and supply of information on, security transactions by different registration centers have the same legal validity.

4. Tasks and powers of registration centers in the registration of, and supply of information on, security transactions

4.1. A registration center has the following tasks and powers in the registration of security transactions:

a/ To carry out the registration in the cases specified in Clause 2 of this Section;

b/ To certify registration of security transactions, registration of changes in contents of previously registered security transactions, registration of extension of security transactions, correction of errors, deletion of security transaction registration, registration of written notices on disposal of security assets; and to supply copies of documents so certified;

c/ To notify parties that are all secured by the same security asset of the disposal of that asset;

d/ To collect the registration fee;

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f/ To archive dossiers and documents, and preserve registered information;

g/ To perform other tasks and exercise other powers as provided for by law.

4.2. A registration center has the following tasks and powers in the supply of information on security transactions:

a/ To supply information on security transactions archived in the national database on security transactions;

b/ To collect the information supply charge;

c/ To refuse to supply information on security transactions in any of the circumstances specified at Point 10.2, Clause 10 of this Section.

5. Responsibilities of registrars

5.1. To carry out registration and information supply within the time limit and according to the order and procedures specified in this Circular.

5.2. To register accurately contents declared in registration applications.

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6. Registration applicants

6.1. A registration applicant may be a securing party, a secured party or head of a team for management and liquidation of assets of a secured party that is an enterprise or a cooperative falling into the state of bankruptcy or a person authorized by any of those entities. When the securing party or the secured party is changed, the new securing party or the new secured party may be the applicant for registration of that change.

6.2. Except for the following cases, a registration applicant who is an authorized person is required to submit the original of the letter of authorization upon filing of the registration application:

a/ A legal person authorizes its branch, representative office or executive office to file a registration application;

b/ A securing party or a secured party is composed of different organizations or individuals, which authorize one of them to file a registration application;

c/ A person authorized to file a registration application is a regular client of a registration center.

7. Responsibilities of registration applicants:

7.1. A registration applicant shall fill in all declaration items in his/her registration application according to the form promulgated together with this Circular (not printed herein). Declared information must be accurate, truthful and consistent with the parties' agreement on security transaction.

7.2. When a registration applicant inaccurately or untruthfully fills in declaration items or the declared information is inconsistent with the parties' agreement on security transaction, thus causing damage, he/she shall pay a compensation to damage sufferers. Parties to a security transaction shall bear responsibility for that transaction if any illegal content is found.

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8. Time of registration of security transactions

8.1. Time of registration of a security transaction is the time when a registration center receives a valid application for security transaction registration.

8.2. In the following cases, the time of registration of a security transaction is determined as follows:

a/ If the registration applicant files a written request for correction of his/her application's errors regarding the name and serial number of the paper evidencing the legal status of the securing party or makes declarations at variance with the guidance in Clause 9 of this Section, the time of registration of the security transaction is the time when the registration center receives a valid request for error correction;

b/ If the registration applicant files a written request for correction of his/her application's errors regarding the security asset, the time of registration of the security transaction for the erroneous part of that asset is the time when the registration center receives a valid request for error correction;

c/ If the registration applicant files a written request for registration of a change in registered information, the time of registration of changes remains to be the time when the registry receives the application as defined at Point 8.1 of this Clause. If the registration applicant requests the additional registration of the security asset, the time of registration of the security transaction for the added part of asset is the time when the registration center receives a valid request for registration of a change in registered information;

d/ If the registration applicant files a written request for correction of errors made by the registrar, the time of registration is the time when the registry receives the application as defined at Point 8.1 of this Clause.

8.3. Time of receipt of a registration application is determined as follows:

a/ If the application is filed directly or sent by post to a registration center, the time of registration is the time when the registration center receives it;

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8.4. Valid registration applications are those which have all their declaration items completed.

9. Guidance for filling in the registration applications

9.1. For individuals being Vietnamese citizens: To fully declare their full names as shown in their people's identity cards; the serial numbers of their people's identity cards or one of the following papers, if they have no people's identity cards:

a/ Officer's identity card, soldier's identity card;

b/ People's police certificate, people's security force identity card, certificate of workers or employees in the People's Public Security Forces.

9.2. For individuals being foreigners: To fully declare their full names according to their passports; and the serial numbers of their passports.

9.3. For individuals being stateless persons residing in Vietnam: To declare their full names as shown in their permanent residence cards; and the serial numbers of their permanent residence cards.

9.4. For organizations established under Vietnamese law:

a/ For legal persons with business registrations: To declare their names as shown in their business registration certificates, and the serial numbers of their business registration certificates.

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c/ For branches, representative offices or executive offices authorized by legal persons to enter into security transactions: To declare those legal persons as parties to security transactions under the guidance at Points 9.4.a and 9.4.b of this Clause. It is not compulsory to declare information on branches, representative offices or executive offices that have entered into security transactions under authorization.

If an organization entering into a security transaction is a branch, transaction office or an attached unit of a credit institution, only declarations on that branch, transaction office or attached unit are required.

d/ For individual business households, private enterprises or other organizations without the legal persons status (except for branches, representative offices or executive offices of legal persons) entering into security transactions: To declare the heads of households, the owners of private enterprises or the representatives at law of organizations as parties to those security transactions under the guidance at Points 9.1, 9.2 and 9.3 of this Clause. It is not compulsory to declare information on individual business households, private enterprises or other organizations without the legal person status.

9.5. For organizations established and operating under foreign laws:

To declare their names registered with competent foreign agencies and declare certificates or establishment or operation registrations, if any, granted according to provisions of laws of their countries. If an organization's registered name is not written in Latin letters, it shall declare its transaction name in English.

9.6. Information declared together with the papers specified at Points 9.1, 9.2, 9.3, 9.4 and 9.5 of this Clause (hereinafter collectively referred to as papers evidencing the legal status) must be sufficient and true to contents written in those papers. Names of parties to a security transaction must not be declared in abbreviated forms.

Registration applicants shall not make declarations according to papers other than those evidencing their legal status.

9.7. Signing of registration applications:

a/ A registration application must bear all signatures and seals (if any) of organizations or individuals being parties to a security transaction or their authorized persons; or signature and seal of the head of the asset management and liquidation team or his/her authorized person, if he/she is the registration applicant.

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c/ An application for registration of changes in registered information on the secured party, correction of errors in information on the secured party, written notice on disposal of security asset or deletion of the security transaction registration is required to bear the signature and seal (if any) of the secured party only or the person authorized by that party to file that registration application.

10. Cases of refusal to carry out the registration or refusal to supply information

10.1. In any of the following circumstances, a registration center may refuse to carry out the registration:

a/ A registration application is invalid;

b/ A registration application is detected to be identical to another application which has been previously received;

c/ Declarations of already registered information in an application for registration of changes in that information, an application for correction of errors, an application for registration of an extension or a written notice on disposal of security asset, or an application for deletion of previous registration are inconsistent with the information archived at the registration center;

d/ A registration application is sent by fax though the registration applicant is not a regular client of the registration center;

e/ Registration of changes in already registered information, correction of errors, registration of an extension, or registration of a written notice on disposal of security asset is requested for a security transaction of which the registration has been deleted;

f/ An application for security transaction registration falls beyond the competence of the registration center as defined in Clause 2, Section I of this Circular;

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10.2. In any of the following circumstances, a registration center may refuse to supply information on security transactions:

a/ An application for information supply is invalid;

An invalid application for information supply means an application which does not contain all required declaration items according to the form promulgated together with this Circular (not printed herein);

b/ An application for information supply is sent by fax though the applicant is not a regular client of the registration center;

c/ An applicant for information supply fails to pay the information supply charge.

11. Modes of filing of registration applications or information supply applications, payment of the registration fee, the information supply charge

11.1. A registration applicant or an information supply applicant files his/her application by one of the following modes:

a/ Filing the application directly at a registration center;

b/ Sending the application by post;

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A registration applicant that files a voluminous application may attach that application's electronic version with its written version sent by one of the above modes.

11.2. A registration applicant or an information supply applicant shall pay the registration fee or the information supply charge by one of the following modes:

a/ Paying directly at a registration center when his/her registration application or information supply application is received by that registration center;

b/ Transferring a fee or charge amount through the postal money transfer service and sending the money transfer bill together with the registration application or information supply application;

c/ Transferring a fee or charge amount into an account of a registration center where his/her application is received, and sending to that registration center a document certifying the account transfer upon filing the registration application or information supply application;

d/ Paying an accreditative revenue or accreditative expenditure via bank or the State Treasury, or making payment from an advance amount already remitted into a registration center's account, if the registration applicant or information supply applicant is a regular client of that registration center.

For payments made by the mode of accreditative revenues or accreditative expenditures, the payment of registration fee or information supply charge shall be made according to monthly payment notices of registration centers. Regular clients shall pay in full the registration fee or the information supply charge amounts of a month by the 25th day of the following month at the latest.

12. Regular clients of registration centers

12.1. An organization or individual that wishes to become a regular client of a registration center will file a dossier comprising the following documents to the National Registry for Security Transactions under the Justice Ministry (hereinafter referred to as the Registry):

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b/ The original of a paper evidencing the legal status of the registration applicant as guided in Clause 9, Section I of this Circular or copies thereof certified by the issuing agency or authenticated by a commune-level People's Committee or notarized. For a directly filed dossier, only the original of the paper evidencing the legal status needs to be produced.

12.2. The Registry shall consider and decide to recognize the regular client status of a registration applicant within one working day after receiving a valid dossier of application for regular client registration, and grant a regular client identification number for transactions with registration centers and for declaration upon filing of registration or information supply applications.

12.3. The Registry shall reject requests for regular client registration when dossiers of registration application are invalid.

12.4. An organization is entitled to request the registration or information supply in its capacity as a regular client from the time the Registry signs a decision on recognition of its regular client status.

An individual is entitled to request the registration or information supply in its capacity as a regular client from the time he/she pays in full an advance into an account of a registration center where he/she chooses to register security transactions or request supply of information.

12.5. Regular clients shall register changes in their names, papers evidencing their legal status or other registered information, or the correction of errors in the declared information. A dossier of application for registration of changes comprises:

a/ An application for registration of changes in information on a regular client;

b/ Papers specified at Point 12.1.b of this Clause evidencing changes or errors in declared information.

13. Time limit for completion of registration

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II. ORDER AND PROCEDURES FOR REGISTRATION OF SECURITY TRANSACTIONS

1. Registration applicants file their applications for registration of security transactions and pay the registration fee by one of the modes defined in Clause 11, Section I of this Circular.

2. After receiving a registration application, a registrar shall check it and record the time and date of receipt of application (hour, minute, day, month and year), if that registration application does not fall into one of the cases subject to registration rejection specified at Point 10.1, Clause 10, Section I of this Circular. Unless an application filed directly at the registration center is handled immediately, the registrar shall issue to the registration applicant a written appointment for registration results.

If any of the circumstances specified at Point 10.1, Clause 10, Section I of this Circular exists, the registrar shall refuse to carry out the registration and guide the applicant to abide by regulations. The refusal to carry out registration must be made in writing and sent to the registration applicant, clearly indicating the reason(s) therefor.

3. Registrars shall promptly input declared information in registration applications into the database. Within the time limit for completion of the registration specified in Clause 13, Section I of this Circular, a registrar shall send to a registration applicant copies of the application with certification of security transaction registration.

4. When an individual or organization being a registration applicant also requests the supply of information in the form of a list of security transactions or a summary of information on security transactions, a registrar shall supply information as guided in Section IX of this Circular. Documents for information supply are enclosed with copies of registration applications with certification of security transaction registration. Registration applicants shall pay the information supply charge according to regulations of the Finance Ministry and the Justice Ministry.

5. At the request of registration applicants, copies of applications for security transaction registration with certification of registration centers are handed directly to those applicants at registration centers where the applications have been received or are sent by post through registered mail service.

III. ORDER AND PROCEDURES FOR REGISTRATION OF CHANGES IN CONTENTS OF REGISTERED SECURITY TRANSACTIONS

1. Within the validity term of the registration and in any of the following circumstances, a registration applicant may file an application for registration of changes in contents of registered security transactions:

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b/ Change of the securing party or the secured party; changes in the addresses of both parties or of either of them;

c/ Reduction, replacement or addition of security assets;

d/ Changes in the payment priority order upon disposal of security assets;

e/ Changes in other registered contents.

2. The filing of applications for registration of changes and the payment of fee for registration of changes shall be made by one of the modes specified in Clause 11, Section I of this Circular.

3. After receiving applications for registration of changes, registrars shall perform the jobs specified in Clause 2, Section II of this Circular.

4. Registrars shall promptly input the information declared in applications for change registration into the database. Within the time limit for completion of the registration specified in Clause 13, Section I of this Circular, a registrar shall send to a registration applicant copies of the application with certification of change registration in contents of the security transaction. If the application for change registration contains only the signature and seal (if any) of the securing party or its authorized person as guided at Point 9.7.b, Clause 9, Section I of this Circular, the registrar shall send to the secured party one (1) copy of that application.

The grant of copies of applications for registration of changes with a certification of registration of changes in contents of registered security transactions is effected by one of the modes specified in Clause 5, Section II of this Circular.

IV. ORDER AND PROCEDURES FOR EXTENSION REGISTRATION

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2. The filing of applications for extension registration and the payment of extension registration fee shall be made by one of the modes specified in Clause 11, Section I of this Circular.

3. After receiving applications for extension registration, registrars shall perform the jobs specified in Clause 2, Section II of this Circular.

4. Registrars shall promptly input the information declared in applications for extension registration into the database. Within the time limit for completion of the registration specified in Clause 13, Section I of this Circular, a registrar shall send to a registration applicant copies of the application with certification of extension registration. If the extension registration applicant is the secured party or its authorized person, the registrar shall send to the securing party one (1) copy of that application.

The grant of copies of applications for extension registration with a registration center's certification is effected by one of the modes specified in Clause 5, Section II of this Circular.

V. ORDER AND PROCEDURES FOR CORRECTION OF ERRORS

1. When registration applicants detect errors in their applications, they shall file their written requests for correction of those errors and pay the error correction fee by one of the modes specified in Clause 11, Section I of this Circular.

2. After receiving written requests for error correction, registrars shall perform the jobs specified in Clause 2, Section II of this Circular.

3. Registrars shall promptly input the information declared in the written requests for error correction into the database. Within the time limit for completion of the error correction specified in Clause 13, Section I of this Circular, a registrar shall send to a correction requester copies of the written request with certification of error correction.

The grant of copies of written requests with a certification of error correction is effected by one of the modes specified in Clause 5, Section II of this Circular.

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VI. ORDER AND PROCEDURES FOR DELETION OF REGISTRATIONS

1. Before the validity term of a registration expires and in the following circumstances, a registration applicant may file an application for deletion of the registration:

a/ The secured obligation terminates;

b/ The security transaction is revoked or replaced by another security transaction;

c/ The security asset has been disposed of; or,

d/ The registration deletion is agreed upon by the parties.

2. The filing of applications for registration deletion complies with the provisions of Point 11.1, Clause 11, Section I of this Circular. The registration of a security transaction ceases to be valid as soon as the registry receives a valid application for deletion of that security transaction registration.

Registration deletion applicants are not required to pay any fee.

3. After receiving applications for registration deletion, registrars shall perform the jobs specified in Clause 2, Section II of this Circular.

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The grant of copies of applications with a certification of deletion of security transaction registrations is effected by one of the modes specified in Clause 5, Section II of this Circular.

5. Upon the expiration of the validity term of a registration, if the registration applicant does not file an application for deletion of security transaction registration or an application for registration of security transaction extension, the registration center shall automatically delete the registration.

VII. ORDER AND PROCEDURES FOR REGISTRATION OF WRITTEN NOTICES ON DISPOSAL OF SECURITY ASSETS

1. The filing of applications for registration of written notices on disposal of security assets and the payment of the registration fee shall be made by one of the modes specified in Clause 11, Section I of this Circular.

2. After receiving registration applications, registrars shall perform the jobs specified in Clause 2, Section II of this Circular.

3. Within the time limit for completion of the registration specified in Clause 13, Section I of this Circular, a registrar shall send to a registration applicant copies of the application with certification of registration of the written notice on disposal of security asset.

The sending of copies of applications for registration of written notices on disposal of security assets with a registration center's certification is effected by one of the modes specified in Clause 5, Section II of this Circular.

4. A registration center shall promptly notify the disposal of assets of the securing party to the concerned secured parties (if any) at addresses declared by those parties when filing applications for registration of security transactions.

5. Basing themselves on the scope of disposed security assets, the concerned parties shall register changes in contents of registered security transactions (reduction of security assets) under the guidance in Section III of this Circular or effect the deletion of security transaction registrations under the guidance in Section VI of this Circular.

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1. Organizations or individuals that request the grant of copies of their applications with certification of registration centers shall file their written requests by one of the modes specified in Clause 11, Section I of this Circular to registration centers which give that certification.

2. Requesters for grant of copies shall pay a fee for grant of copies at rates set by law.

3. Within the time limit for completion of the registration specified in Clause 13, Section I of this Circular, registrars shall send copies of applications with registration centers' certification to requesting organizations or individuals.

The grant of those copies is effected by one of the modes specified in Clause 5, Section II of this Circular.

IX. ORDER AND PROCEDURES FOR SUPPLY OF INFORMATION ON SECURITY TRANSACTIONS

1. Organizations and individuals are entitled to request the supply of information on security transactions already registered and archived in the national database of security transactions in the following forms:

a/ A list of security transactions (by names of securing parties), consisting of information on secured parties, time of registration of security transactions, validity terms of security transaction registrations which are still valid at the time of request for the information supply (if any).

b/ A documented summary of information on security transactions (by names of securing parties), consisting of information specified at Point a of this Clause and amendments, supplements or correction of errors in registered contents or registered security assets (if any).

2. Requesters for information supply shall file their written requests for information supply and pay the information supply charge to registration centers. The filing of written requests for information supply and payment of information supply charge is effected by one of the modes specified in Clause 11, Section I of this Circular.

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3. A registration center shall supply a list or a documented summary of information on security transactions to an information supply requester right after receiving a written request or on the date of receipt of a written request. If a registration center receives a written request for information supply after 3:00 p.m., the supply of information shall be carried out in the next working day.

The supply of lists or documented summaries of information on security transactions is effected by one of the modes specified in Clause 5, Section II of this Circular.

X. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its publication in "CONG BAO."

2. This Circular replaces the Justice Ministry's Circular No. 01/2002/TT-BTP of January 9, 2002, guiding a number of matters regarding the competence, order and procedures for registration of, and supply of information on, security transactions at the National Registry for Security Transactions under the Justice Ministry and its branches.

3. Pledges of assets or guarantees with assets registered before the effective date of this Circular are still valid under the law on registration of security transactions and are not required to be re-registered under this Circular.

Pledges of assets or guarantees with assets which fall under the registration competence of registration centers before the effective date of this Circular and are still in the pledge or guarantee duration but have not yet been registered shall be registered in the form of asset mortgage under this Circular. Unless otherwise agreed by the involved parties, contracts for pledge of assets or guarantee with assets need not be revised into contracts for mortgage of assets.

4. Promulgated together with this Circular are forms (not printed herein) for use in the registration of, and the supply of information on, security transactions at registration centers.

5. Difficulties or problems arising in the course of implementation should be promptly reported by the concerned individuals or organizations to the Justice Ministry for study and solution.

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Thông tư 06/2006/TT-BTP hướng dẫn về thẩm quyền, trình tự và thủ tục đăng ký, cung cấp thông tin về giao dịch bảo đảm tại Trung tâm Đăng ký giao dịch, tài sản của Cục Đăng ký quốc gia giao dịch bảo đảm thuộc Bộ Tư pháp do Bộ Tư pháp ban hành