Giải quyết tranh chấp hợp đồng bảo lãnh tiền vay tại tổ chức tín dụng từ thực tiễn xét xử giám đốc thẩm, tái thẩm của tòa án nhân dân tối cao tt tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

PHAM VAN LOI

SETTLEMANT OF LOAN GUARRANTEE CONTRACT
DISPUTES AT THE GROUP CREDIT INSTITUTIONS FROM
THE PRACTICE OF CASSATION AND REOPENING TRIAL
OF THE SUPREME PEOPLE,S COURT

Major: Economic Law
Code: 9380107

SUMMARY OF DOCTORAL THESIS IN LAW

HANOI - 2020


The Doctoral thesis was completed at:
Graduate Academy of Social Sciences

Supervisor: Assoc. Prof. Dr. Dinh Van Thanh

Reviewer 1: Assoc. Prof. Dr. Nguyen Thi Que Anh

Reviewer 2: Assoc. Prof. Dr. Duong Dang Hue

Reviewer 3: Dr. Pham Sy Chung

The doctoral thesis will be examined by Examination Board of
Graduate Academy of Social Sciences at

The doctoral thesis can be found at:
- National Library of Vietnam;
- Library of Graduate Academy of Social Sciences


INTRODUCTION
1. The urgency of this topic researching:
The Resolution No. 49-NQ / TW dated June 2, 2005 of the Politburo
clearly stated, “Gradually completing cassation and reopening procedures in
the direction of strictly prescribing the grounds for protest and clearly defining
the protests' responsibilities to the Court's judgments or rulings which have
taken legal effect; overcome the situation of rampant and lack of ground
protests”.
Institutionalizing the policies of the Party, the Constitution of 2013 and the
Law on Organization of the People's Courts 2014 stipulating that People's
Courts are organized according to the 04-level model. This leads to the
authority to accept and resolve petitions according to cassation and reopening
procedures for cases in general and the loan guarantee contract disputes at
credit institutions in particular have many changes. Changes in cassation and
reopening institutions in civil procedures have overcome many shortcomings of
the old Civil Procedure Code. However, in addition to the positive points, there
are still many overlapping, contradictory and irrational points leading to
backlog of applications for cassation and reopening; the quality of handling
business and commercial cases according to cassation and reopening
procedures is not high. Therefore, it is necessary to continue to study the
recommendations for improvement.
The actual performance of credit institutions in recent years shows that
bad debts of credit institutions are called by names such as "tumor" of the
economy, "iceberg", "blood clot" that clog the flow of credit that is supplied to

the economy. Therefore, the study of the topic of settlement of loan guarantee
contract disputes at credit institutions according to cassation and reopening
procedures aims to point out problems in the procedures for resolving this type
of dispute at the Court and propose solutions to improve dispute settlement
efficiency is necessary in the current period.
2. Research purpose and mission:
2.1. Research purpose:
The study of this topic is to clarify the theoretical basis, legal status and
practice in resolving disputes on loan guarantee contracts at credit institutions
according to cassation and reopening procedures at the Supreme People's Court.
Thereby proposing solutions to complete and improve the efficiency of
settlement of loan guarantee contracts at credit institutions.
2.2. Research mission:
To achieve the above objectives, the thesis focuses on solving the
following main tasks:
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(1) Clarifying the general theoretical issues about the dispute on loan
guarantee contract at credit institutions according to cassation and reopening
procedures;
(2) Study the current status of the law and the practical application of the
law on settlement of disputes on loan guarantee contracts at credit institutions
according to cassation and reopening procedures;
(3) Find out suitable solutions to improve and complete the law on
settlement of loan guarantee contract disputes at credit institutions according to
cassation and reopening procedures at the Supreme People's Court.
3. Object and scope of the study:
3.1. Research object:
Perspectives, research works, legal theories, system of legal documents

related to the settlement of disputes on loan guarantee contracts at credit
institutions according to cassation and reopening procedures. The practice of
applying the law on settlement of loan guarantee contracts at credit institutions
according to cassation and reopening procedures at the Supreme People's Court.
3.2. Research scope
This thesis only focuses on the guarantee contract disputes between credit
institutions (excluding foreign credit institutions) and organizations and
individuals according to cassation and reopening procedures at the Supreme
People's Court.
4. Research method:
The research is conducted on the basis of dialectical materialism
methodology and historical materialism of Marxism-Leninism. Research
methods of analysis, synthesis, statistics, comparison, logic, interview method,
expert inquiry and “Case studies” are also used.
5. New contributions of the Thesis
The thesis has proposed to amend a number of provisions of laws related
to guarantee relations, and amend the provisions of the procedural law related
to cassation and reopening; The Thesis shows the common types of disputes
related to the loan guarantee contract at credit institutions, from which the
thesis gives recommendations to the parties when entering into a guarantee
contract. This Thesis proposes a number of breakthrough solutions in the
settlement of cassation and reopening petitions at the Supreme People's Court.
6. The scientific and practical significance of the thesis
- Scientific significance: The topic contributes to supplementing and
clarifying some basic theoretical issues about guarantee relationship and loan
guarantee contract disputes at credit institutions.
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- Practical significance: The thesis’s research results can be used as a

reference for research and teaching activities, especially valuable for reference
for those doing justice work.
7. Thesis structure
In addition to the Introduction, Conclusion and List of references, the
thesis includes 04 chapters as follows:
Chapter 1: Overview of research situation and issues related to the Thesis
topic
Chapter 2: Theoretical issues on the settlement of loan guarantee contract
dispute at credit institutions in accordance with cassation and reopening
procedures
Chapter 3: The legal status of cassation and reopening trial for disputes on
loan guarantee contracts at credit institutions comes from the reality of the
Supreme People's Court.
Chapter 4: Directions and solutions to improve the law, improve the
efficiency of dispute settlement for loan guarantee contracts at credit
institutions according to cassation and reopening procedures at the supreme
people's court.
Chapter 1
OVERVIEW OF RESEARCH SITUATION AND ISSUES
RELATED TO THE THESIS TOPIC
1. Overview of research related to the topic:
1.1. Overview of research on Loan guarantee contracts at credit
institutions
1.1.1. Concept and characteristic of guarantee:
Theoretically, the world has also had law schools following the tendency
to determine that guarantee can be object guarantee measure. In Vietnam, the
1995 Civil Code was built in this direction, but since 2005, when amending the
1995 Civil Code, the guarantee is provided in the direction of person guarantee
measure.
- Guarantee relationship exists in the form of a contract between the

guarantor and the guarantee: For civil obligation guarantee, many researchers
in Vietnam agree with the views of the authors Pham Van Tuyet and Le Thi
Kim Giang “in essence, the guarantee relationship is a kind of civil transaction,
the relationship between the guarantor and the guarantee is a contract”
1.1.2. The main contents of loan guarantee relationship at credit institutions
1.1.2.1. Subject of loan guarantee relationship at credit institutions
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As mentioned, the guarantee relationship is defined as a contract and this
is a contract entered into between the guarantor and the guarantee. For a loan
guarantee contract at a credit institution, the guarantor is always the credit
institution, and the guarantee can be another organization or individual.
1.1.2.2. The main contents of a loan guarantee contract at a credit institution:
The law does not specify the content of the guarantee contract; it is
completely agreed by the parties, provided that such agreements are not illegal
or contrary to social morality. Regarding non-illegal contents, this is a new
provision compared to the previous civil law, the civil law before the 2015
Civil Code has recognized that the contents of the agreement in the contract
must not be contrary "the Law". Thus, the prohibited scope of the Civil Law
2015 has narrowed a lot.
1.1.2.3. Effect of a loan guarantee contract at a credit institution:
- Regarding effective conditions of the guarantee contract: The authors
Pham Van Tuyet, Le Kim Giang said that, “In order to take effect, a guarantee
transaction must comply with conditions prescribed by the Civil Code, in
addition, it is necessary to consider the relationship between the validity of the
guarantee transaction and the validity of a credit contract is secured by that
guarantee transaction”.
1.1.2.4. The time when the right to request performance of the guarantee
obligation arises:

The author Bui Duc Giang has compared, British law stipulates that the
guarantee obligation is a joint obligation, unless the parties agree that it is a
reserve obligation. The law of France goes in the opposite direction, from
which it makes the judgment that the Law of Vietnam "bring clear benefits to
the guarantee”. Regarding the joint obligations between co-guarantors:
Vietnam's civil laws on this issue are similar to the laws of some countries such
as the UK and France.
1.2. Research on loan guarantee contract settlement at credit institutions.
1.2.1. The issue of dispute about the validity of the guarantee contract:
The author Truong Thanh Duc explained why in a long period, guarantee
contracts were made in the form of a third party's mortgage or pledge of assets.
Because if using the form of guarantee contract, the Notary Offices will refuse
to notarize the contract, and the guarantee contract is not required to register the
security transaction.
1.2.2. Invalidity due to a breach of effective conditions in the contract
content:
- The guarantor is not the owner of the property used to guarantee,
such as the real estate belongs to the parents (they are both died), and one of
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their child used the property to guarantee the loan at the bank, then the co-heirs
discovered the incident and asked the Court to declare that the guarantee
contract is invalid.
- The guarantee contract cannot be consented by the co-owner of the
property used as guarantee: The authors Nguyen Van Cuong, Nguyen Thi
Bich have analyzed the risks of receiving the guarantee obligation by the
household's land use rights, but not having enough household members
participating in the contract. Accurate determination of household members is
also not a simple matter. These difficulties have been partly removed and

resolved by the 2013 Land Law and the 2015 Real Estate Law. Accordingly,
the contract of mortgage of land use rights of a household without enough
members will be only partially invalid (for those who do not enter into the
contract), the rest remains in effect.
- The guarantor requires a statement that the guarantee contract is
invalid due to a violation of the law: The author Do Van Dai mentioned the
case that "the representative is not re-established to conduct civil transactions
with himself or with a third person that he is also the representative of that
person ..." to request to declare contract guarantee invalid. However, the
Supreme People's Court determined that the business owner guaranteeing the
business loan is not a transaction with himself, because the individual owner of
the business with the legal entity - the enterprise is completely independent.
1.2.3. Disputes over the contents of the loan guarantee contract:
- The author Duy Kien has analyzed a specific case related to the difficulty
of determining the exact scope of guarantee obligations. The author Nguyen
Anh Duc has cited the case of “Guarantee contract ended because the
guarantee period has ended”.
- The person with the property asked another person to help borrow
money at the credit institution and that person asked the person with the
property to sign a guarantee contract to borrow a larger amount (borrow
more): There are many authors mentioning and analyzing this content. The
main content of this relationship is that the person whose assets ask others to
borrow a small amount of money at the credit institution, but the beneficiary
takes advantage of this to borrow a larger amount and keep the difference.
- About the time of performing guarantee obligations: The author Do
Van Dai analyzed 04 judgments of the Courts at all levels and pointed out the
fact, “The Courts still determine the underwriting regulations of the sponsors,
although the parties have no agreement on this issue in the guarantee
contract”. Thus, these cases must be determined as joint obligations in
accordance with the law.

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1.3. Research on cassation and reopening procedures in civil proceedings:
1.3.1. Regarding the concept of cassation and reopening in civil proceedings:
Textbooks of the Hanoi Law University, the Judicial Academy ... and the
books of the authors Dao Xuan Tien, Ngo Anh Dung, Ha Thi Thuy Ha all have
outlined the concept of cassation and reopening. However, most of them cite
the provisions of the civil procedure law. Meanwhile, the author Mai Ngoc
Duong has the approach and recognition of cassation in civil proceedings as a
legal institution.
1.3.2. Regarding the order and procedures for sending, receiving and
accepting applications for cassation and reopening procedures:
In the scientific topic of Dr. Nguyen Huy Du (the graduate students also
participated in writing this topic) mentioned the procedure of sending, receiving
and accepting applications for cassation and reopening procedures.
1.3.3. On the basis of the protest according to cassation procedures:
The authors Dao Xuan Tien, Ha Hoang Hiep and Ha Thi Thuy Ha all
agree that basically, the civil procedure law of different times stipulates that the
main grounds for protest according to cassation procedures are similar without
big difference. The main change of the Civil Procedure Code 2015 is that the
grounds of protest are associated with the consequences of rights and
obligations of the affected parties.
1.3.4. About the person authorized to appeal the cassation
The authors Ngo Anh Dung, Dao Xuan Tien, Tran Anh Tuan, Chu Thi
Hong Nhung stated that the common point of civil proceedings all stipulates
that the Chief Justice of the Supreme People's Court and the Head of the
Supreme People's Procuracy have the right to to protest against all valid
judgments or decisions of the Court, except for the decision of the Council of
Judges of the Supreme People's Court. The Chief Justice of the Supreme

People's Court and the Chief Procurator of the Supreme People's Procuracy are
competent to protest against legally effective judgments or decisions of
provincial or district people's courts within their respective localities. Under the
provisions of the 2004 Civil Procedure Code and earlier, the Chief Justice of
the provincial People's Court and the Head of the Provincial People's Procuracy
have the right to protest according to cassation procedures against the legally
effective judgments or rulings of the district-level people's courts.
1.3.5. About the time limit for a cassation appeal
The authors Ngo Anh Dung, Ha Hoang Hiep and Ha Thi Thuy Ha have
analyzed the provisions of the Law and pointed out that, as a general rule, the
time limit for a cassation appeal is 3 years from the date the judgment or
decision takes legal effect. According to the 2015 Civil Procedure Code, the
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appeal period can be extended for 2 more years, ie 5 years from the date the
judgment takes legal effect provided that the involved party has had the petition
within 01 year and after 03 years, the applicant continues to file the petition.
1.3.6. Regarding jurisdiction of cassation
The authors refer to the provisions of the law and the Ordinance on
Procedures for Settlement of Civil Cases to analyze the competence to appeal to
cassation review, pointing out some differences in the provisions of the
procedural documents.
1.3.7. Regarding reopening procedures
The author Ngo Anh Dung, Dao Xuan Tien analyzed the real law on the
basis of reopening appeal, including: newly discovered important details of the
case that the litigants could not know when solving the case; The assessment
conclusion or the translator's translation is clearly untrue; Judges and
procurators intentionally falsify case files or deliberately make illegal
conclusions; The effective judgment or decision on which the Court bases to

settle the case has been cancelled.
1.3.8. Regarding the time limit for reopening appeal
The procedural documents all stipulate that one year from the date the
person who is competent to appeal for reopening discovers facts that are
grounds for reopening; The Ordinance further stipulates that the protest without
causing damage to any involved party is not limited in time.
1.3.9. Regarding the proposal to complete the law as well as solutions to
complete cassation and reopening procedures:
Most of the research works of the authors mentioned above have
recommendations on amending, supplementing and completing the law related
to the settlement of disputes on loan guarantee contracts at credit institutions in
accordance with cassation and reopening procedures.
2. Overall assessment of research related to the thesis topic:
It can be said that the domestic and foreign research on the guarantee
institution is very exciting, as evidenced by a lot of scientific researches on this
issue. There has been no research work on the real situation of the settlement of
guarantee contract disputes through cassation and reopening activities of the
Supreme People's Court.
3. Results of the research works that the author will inherit:
The author inherits the point of view, guarantee is a human-related
security measure, but in the process of developing many systems guarantee on
things have also be accepted; Guarantee contract is an independent contract, not
a sub-contract of a credit contract.
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Regarding cassation and reopening procedures, the author inherits the
view that it is necessary to hand over the authority to protest cassation and
reopening for legally effective judgments and decisions of district People's
Courts to the Chief of Provincial People's Courts; it is necessary to shorten the

time limit for appeals and not specify cases to be extended to 5 years; to collect
fees for cassation or reopening trial requests
4. Issues needed to study in the Thesis:
It is necessary to study how guarantees still retain the human nature, while
still being attractive to credit institutions; point out inadequacies in the
settlement of guarantee contract disputes according to cassation and reopening
procedures at the Supreme People's Court. Proposing solutions to complete and
improve the efficiency of the settlement of disputes on loan guarantee contracts
at credit institutions according to cassation and reopening procedures at the
Supreme People's Court.
5. Research theoretical basis:
5.1. Research theory of the topic:
- Theory of contracts in general and theory of loan guarantee contracts at
credit institutions in particular; theory of protecting the rights and interests of
the parties in loan guarantee contracts at credit institutions; Theory of risk
prevention in bank credit guarantees; Theory of the litigants' right to selfdetermination, on protecting the legitimate interests of the involved parties in
the case; Theory of the Court trial to ensure justice and fairness; Theory of the
Court's independent adjudication guarantee
5.2. Research questions, research hypotheses of the topic
The first question, is the legal system on loan guarantees at credit
institutions complete, what issues are lacking in the law? Which regulations are
not reasonable?
Assuming that the theoretical basis of the law on loan guarantee at credit
institutions in Vietnam is incomplete and noncomprehensive; Legal provisions
on loan guarantee contracts at credit institutions are inadequate, flawed,
scattered, and unsystematic;
The second question, What issues often arise in disputes in loan guarantee
contracts at credit institutions? What are the causes of these disputes?
Assuming that the disputed contents are often related to the scope of
guarantee obligations; measures to secure guarantee obligations; the time of

performing the guarantee obligations. The reason is the lack of legal provisions
and unclear agreement in the contract signing process.

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The third question, has the applicable law on settlement of loan guarantee
contracts at credit institutions been completed according to cassation and
reopening procedures, are there any shortcomings?
Assuming that the civil procedure law regarding cassation and reopening
has not yet been completed, especially the time limit of cassation and
reopening, the competence to appeal and the grounds for reviewing a protest
against cassation review and reopening.
The fourth question, is the current process of settling disputes on loan
guarantee contracts at credit institutions in accordance with cassation and
reopening procedures at Supreme People's Court appropriate, which limitations
need to be overcome?
Assuming that the procedures for receiving and accepting the application
are not reasonable; the steps of conducting research, reporting the case are not
really scientific.
5.3. Research approach:
Research approach of this thesis is implemented from the points of view of
civil procedure law on cassation, reopening and civil law on guarantee of the
performance of obligations by guarantee measure.
CONCLUSION OF CHAPTER 1
In this chapter, the author conducts an overview of the research works on
books, newspapers, journals, ministerial scientific topics, doctoral dissertations,
master theses, textbooks, reference books, Scientific seminars, articles of
domestic and foreign authors on theoretical and practical issues related to the
topic, and below are the preliminary conclusions:

There have been a great number of authors conducting research on
obligation security measures, but the number of separate studies on this kind of
security measure is not much. There has been only two in-depth research works
which are the author's Master Thesis and Pham Van Dam's Doctoral
Dissertation.
The studies on cassation and reopening procedures in civil procedures all
adhere to the provisions of real law. The process of amending the actual law,
regulations on cassation and reopening has changed more or less.
There has not been any specific research work on the settlement of loan
guarantee contracts at credit institutions in accordance with cassation and
reopening procedures at the Supreme People's Court.

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Chapter 2
THEORETICAL ISSUES ON THE SETTLEMENT OF LOAN
GUARANTEE CONTRACT DISPUTE AT CREDIT INSTITUTIONS
IN ACCORDANCE WITH CASSATION AND REOPENING
PROCEDURES
2.1. Concept and characteristics of a loan guarantee contract dispute at
credit institutions
2.1.1. Concept and characteristics of loan guarantee contract at credit
institutions
It can be understood that the loan guarantee at the credit institution is that
a third person can be an individual or organization (called the guarantor)
committing to the credit institution to lend money (called the beneficiary) to
perform the obligations on behalf of the borrowing individual or organization
(called the guaranteed), if the guaranteed fails to perform, or perform
improperly or incompletely, the obligation to pay when the debt is due. The

parties may agree that the guarantor must perform the obligation only when the
guaranteed is incapable of performing the payment obligation. The guarantor
can also undertake to guarantee a part or all of the loan repayment obligation
for the guaranteed.
Features of loan guarantees at credit institutions:
First, guarantee is a third party's commitment to perform an obligation
on behalf of another person, if the obligor fails to perform or perform
improperly.
Second, guarantee is a human-related security measure:
According to the division method of the ancient Roman law, civil law in
some countries now divides property rights into two basic categories: First, the
right to allow the subject to have direct control over things without going
through the behavior of others (material rights or object rights); The second is
the right to request another subject to perform a job (contrary to the right or also
known as the human right).
Third, a guarantee relationship exists in the form of a contract: The vast
majority of scientists and the actual law system have basically agreed on the
thesis, guarantee exists in the form of a contract.
Fourth, guarantee contract is relatively independent: Although the object
of loan guarantee contract at credit institution is the obligation arising from the
credit contract. However, the guarantee contract is not a sub-contract but stands
independent from the credit contract.
Characteristics of loan security guarantees at credit institutions: In
addition to the general features of the guarantee measures as mentioned above,
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loan guarantees at credit institutions also have some distinct characteristics as
follows:
- Firstly, the beneficiary is always the credit institution: in the

relationship that gives rise to the guaranteed obligation (amount of money), the
lender is the credit institution, so the credit institution will be the beneficiary
and in a guarantee relationship, this organization will be the beneficiary.
- Second, the guaranteed obligation is a loan under a credit contract:
The obligation to be guaranteed in this relationship is a loan from individuals
and organizations at the credit institution through a credit contract.
- Third, the guarantor is an organization or individual that is not
specialized in guarantee activities: In this study, the author does not consider
the bank guarantee operation. Therefore, the sponsor is an unprofessional
organization or individual.
2.1.2. Concept and characteristics of a loan guarantee contract dispute at a
credit institution:
From the above concepts, we can conceptualize the guarantee contract
dispute as follows, “Disputes on loan guarantee contracts at credit institutions
are conflicts, disagreements between the guarantor and the credit institution
arising in the process of entering into and exercising the rights and obligations
in this contract”.
- Features of a loan guarantee contract dispute at a credit institution:
- About the subject in this contract dispute: Guarantee contract dispute
is only a dispute between the guarantor and the beneficiary; For loan guarantee
contracts at a credit institution, the special point is that the beneficiary is always
the credit institution (the lender).
- Dispute on a loan guarantee contract at the credit institution arises
after the obligor's debt payment has arisen: only when one of the conditions
giving rise to the guaranteed obligation does the guarantee obligation arise, then
the dispute arises.
- Regarding grounds for protest in accordance with cassation and
reopening procedures: The grounds for the persons who are competent to
protest according to cassation and reopening procedures, this type of dispute are
caused by content violations but not procedural violations.

- There has not been any case related to guarantee contract that has
been resolved according to simplified procedures: By the end of 2019, the
court system has not accepted and resolved any dispute of this type according to
summary procedures.

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2.2. Theoretical issues on the settlement of disputes on loan guarantee
contracts at credit institutions according to cassation and reopening
procedures:
2.2.1. Concept, characteristics of loan guarantee contract settlement at credit
institutions.
“Settlement of loan guarantee contract disputes at credit institutions is
the activity of competent individuals, agencies and organizations to resolve
disagreements and conflicts between credit institutions – the beneficiary and
individuals and organizations (guarantor) to find the right solution on the basis
of the law to clearly define the rights and obligations of the subjects in the
guarantee relationship”.
Characteristics of settlement on loan guarantee contract disputes at credit
institutions:
- Depending on the subject's conditions and the purposes of the parties to
the guarantee contract, this dispute can be defined as a civil or business or
commercial relationship.
- Evidence in the settlement of a loan guarantee contract at a credit
institution is fully provided with clear contents: Due to the specificity of this
relationship, the beneficiary is always the credit institution, so the evidence is
fully and clearly prepared.
- Settled concurrently with credit contract disputes:
The guarantee contract shall be settled in general in the credit contract

performance request case, then the guarantor shall participate in the procedure
as a person with related interests and obligations in the case.
2.2.2. Concepts, characteristics and contents of the settlement of disputes on
loan guarantee contracts at credit institutions according to cassation and
reopening procedures
2.2.2.1. Concepts and characteristics of the settlement of disputes on loan
guarantee contracts at credit institutions according to cassation and reopening
procedures:
From different perspectives of approach, there are many different views on
cassation and reopening in civil proceedings in general and for loan guarantee
contract disputes at credit institutions in particular. However, in order to fully
identify the nature of cassation and reopening procedures for loan guarantee
contract disputes at credit institutions, it is necessary to clarify the
characteristics of cassation and reopening procedures in civil proceedings.

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Characteristics of cassation and reopening:
The first characteristic is that the subjects of cassation and reopening are
judgments and decisions of the courts which have taken legal effect:
Judgments and decisions that have taken legal effect can be: Decision
recognizing the agreement of the involved parties; First-instance and appellate
judgments and decisions of People's Courts at all levels; decisions of cassation
and reopening of High-level People's Courts.
The second characteristic is that the Cassation and reopening panel
determine serious mistakes and violations of law in the judgment; assessing
the grounds containing new facts that fundamentally change the content of
the Court's decision.
The serious mistakes and violations in the effective court judgments or

rulings may be the errors in the contents or the proceedings.
The third characteristic is that the review of judgments and decisions
must be based on the appeal of the competent persons.
Procedures for cassation and reopening are conducted on the basis of
protests of competent persons within the time limit prescribed by law against
legally effective court judgments or rulings with serious mistakes.
2.2.2.2. Content of cassation and reopening of disputes on loan
guarantee contracts with credit institutions:
- Regarding the right to request cassation: (1) The first mechanism is that
in the court system, the errors must be discovered by themselves in order to
promptly resolve them. (2) The secondary mechanism, in addition to the selfdiscovery of the Court system, other agencies, organizations and individuals
also have the right to detect and recommend review according to cassation and
reopening procedures.
- Regarding the basis of cassation and reopening: cassation and reopening
grounds are the bases for review according to cassation and reopening
procedures. Depending on the legal system of each country whether it is
divided into cassation and reopening or combined in a procedure, these grounds
are different.
- Regarding the time limit for requesting review of a judgment or decision:
The time limit for requesting review of a legally effective decision is the period
of time when a person with the right to request cassation or reopening has the
right to file a request for review of the judgment and the decision taking legal
effect according to cassation and reopening procedures.
- Regarding the jurisdiction of cassation and reopening: Jurisdiction of
cassation and reopening means the powers to consider and decide on cassation
and reopening panel on cases that have protested according to cassation and
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reopening procedures.

- Regarding the jurisdiction of the Cassation and reopening board:
Vietnam's procedural law stipulates that the cassation trial panel has the
following rights: Not to accept the protest and to uphold the legally effective
court judgment or decision; abrogate the Court's judgments or rulings which
have taken legal effect and uphold the legal judgments or rulings of the lower
courts which have been canceled or modified; cancel part or all of the legally
effective Court's judgments or rulings for re-trial according to first-instance
procedures or re-trial according to appellate procedures; cancel sentences or
rulings in effect and suspending the resolution of the case; amend part or the
whole of the legally effective Court's judgment or ruling.
- Specific issues in the settlement of disputes on loan guarantee contracts
at credit institutions according to cassation and reopening procedures
compared to other procedures:
- There is no need to verify, gather more evidence, but can evaluate and
decide at the Cassation Review Panel (the judgment can be revised, no need to
cancel for re-resolution).
- Due to the specific characteristics of the credit institution's money
business, the parties are willing to mediate to quickly end the case.
- The research and appraisal of documents of examiners, leaders of the
Department of Inspection Director and the next authorized persons do not take
much time.
- Many loan guarantee contracts are related to the property to guarantee
the guarantee obligation.
CONCLUSION OF CHAPTER 2
The basic guarantee concept is agreed in main points such as the nature of
the guarantee, the form of existence. However, there are still differences, such
as the guarantee obligation is legally binding or vice versa.
Loan guarantee contract disputes at credit institutions are a special and
very important kind of dispute, even more important than the settlement of
credit contract disputes.

Cassation and reopening procedures are special procedures, aimed at
detecting and correcting errors in legally effective judgments of the firstinstance and appellate courts in the application of laws, as well as new facts that
have been discovered that cannot be known in the proceedings.

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Chapter 3
LEGAL STATUS OF CASSATION AND REOPENING FOR DISPUTES
ON LOAN GUARANTEE CONTRACTS AT CREDIT INSTITUTIONS
FROM THE REALITY OF THE SUPREME PEOPLE'S COURT
3.1. Current status of the law and practice in settling disputes on loan
guarantee contracts at credit institutions in Vietnam:
Guarantee for loans at credit institutions are based on the provisions on
guarantees in Civil Code in 1995, 2005, 2015 and Decree no. 163/2006/ND-CP
dated December 29, 2006.
3.1.1. Regarding the form of guarantee contract:
For credit institutions, guarantee commitments must always be made in
writing, can be made separately or jointly in credit contracts or contracts on
pledge or mortgage of property to secure the guarantee obligation. (Clause 1 of
Article 10).
The content often in dispute is, the contract is not made in accordance with
the nature of the security relationship (the guarantee relationship is a guarantee,
but the parties make a contract to mortgage the property of a third party); the
guarantee commitment is not made in the form of a contract; The guarantee
contract has a term agreeing on measures to secure the security obligation with
specific properties, but this contract is not notarized, authenticated or registered
for security transactions etc.
3.1.2. Regarding the scope of guarantee obligations:
An obligation may be partially or wholly guaranteed by agreement or by

law; An obligation may be partially or wholly guaranteed by agreement or by
law; if there is no agreement and the law does not specify the scope of security,
the obligation is deemed to be fully secured, including the obligation to pay
interests and compensate for damage.
3.1.2.1. Disputes in case the quantity of guarantee obligations is
determined in terms of quantity:
Although in the guarantee contract, the parties clearly agree that the scope
of the guarantee obligation is a specific amount, but does not specify whether
this amount is the total amount of guaranteed obligations or just the principal
amount guaranteed.
3.1.2.2. Regarding the cases in which the guarantee obligation scope is
not determined in quantity:
Upon the expiration of the disbursement term as agreed in the guarantee
contract, the Bank and the borrower sign an annex to extend the loan term for
an additional 1 year to receive the additional loan amount, without the consent
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of the guarantor, so the amount incurred over the period of the contract
addendum is not within the scope of the guaranteed obligation.
Another form of dispute is that although in the guarantee contract, the
parties have limited the time giving rise to the guarantee obligation, at the same
time, there is an additional agreement, “the detailed conditions for borrowing
and lending the above amount (specific number) will be specified in the
banking documents that the borrower, the guarantor and the Bank will sign at
the head office of the Bank”.
3.1.2.3. Regarding interest rates:
Interest overlapping: Interest is understood as calculating interest on the
unpaid interest. During the period when the Civil Code 2005 took effect, many
courts, when resolving disputes on credit contracts, accepted credit institutions'

requests to calculate interest or penalties for interest in due date but customers
did not pay.
Regarding responsibility to share interest rate on overdue debts due to the
fault of failure to fulfill the obligation to sell off assets to recover debts of the
Bank: the borrower requests the credit institution to take responsibility for
damage to the damaged collateral, damage and overdue interest on the debt due
to the failure of the obligee to handle the property to recover the debt when the
guarantee obligation arises.
3.1.3. Legal issues of the collateral securing the guarantee obligation:
There are many different types of disputes regarding the legal status of the
property securing the obligation to guarantee, but by the nature that the
guarantor uses the common property to mortgage to secure his guarantee
obligation without the consent of the co-owner or the collateral is no longer
under the ownership of the guarantor; property means a house and land use
rights that the guarantor is entitled to under the decision of the legally effective
judgment, with no name on that property but used as collateral to secure the
guarantee obligation. Land use rights are granted to the household, but when
mortgaged to secure the guarantee obligation, the consent of all members of the
Household is not agreed. Common property of husband and wife, but only one
party signs the contract to mortgage the whole property to secure the guarantee
obligation.
3.1.3.1. Disputes related to the additional loan relationship: The basic
content of this relationship is that the owner of the property has a need to
borrow money, so ask other individuals or organizations to borrow money, and
at the same time use his property to secure that loan. The borrower borrowed a
larger amount than the property owner needed to borrow and kept the
difference.
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3.1.4. Other disputes:
- The bank incorrectly evaluates assets to mortgage to secure the
guarantee obligation: the property the parties agree to use to secure the
guarantee obligation is asset A, but when conducting the valuation, the parties
mistakenly value asset B.
- Guarantee for the obligations formed in the future:
- Conditional guarantee:
In a specific case, the guarantor mortgages the property to secure the
guarantee obligation for the loan at the Bank, provided that the borrower is
allowed to supplement the loan after the loan is finalized.
3.2. Legal status of cassation review and reopening of disputes on loan
guarantee contracts at credit institutions
- Regarding the discovery of legally effective court judgments or rulings,
they need to be reviewed according to cassation and reopening procedures:
According to the statistics of the Department of Director and Inspection II
of the Supreme People's Court from 2015-2019, 100% of the cases of disputes
on loan guarantee contracts at credit institutions being protested according to
cassation and reopening procedures are requested by involved parties. (It can be
submitted directly or indirectly through other organizations and individuals).
- Provisions on the person competent to appeal to cassation review
Compared with the 2004 Civil Procedure Code amended in 2011, the 2015
Civil Procedure Code has the following new points: Chief justices of
provincial-level people's courts and heads of provincial-level people's
procuracies no longer have the authority to protest according to cassation and
reopening procedures against effective judgments or rulings of district-level
people's courts; instead, the authority of the Chief Justices of the Supreme
People's Court and the Chief Procurator of the Supreme People's Procuracy by
territory has the right to appeal to the judgments and decisions of the district
and provincial courts within the territory.
- Regarding the basis of cassation review:

Firstly, the conclusion in the judgment or decision is inconsistent with the
objective details of the case, causing damage to the legitimate rights and
interests of the involved parties.
Secondly, there are serious violations of procedural procedures that
prevent the involved parties from exercising their procedural rights and
obligations, leading to the fact that their legitimate rights and interests are not
protected according to the provisions of law.
Thirdly, make mistakes in the application of laws leading to incorrect
judgment or decision making, damaging the legitimate rights and interests of
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the involved parties, infringing upon the interests of the public, the State and
the third parties.
Regarding the time limit for requesting review of judgments or decisions:
According to statistics, cases protested by the Chief Procurator of the
Supreme People's Procuracy often have a shorter appeal period than the chief
judge of the Supreme People's Court. the majority of cases protested by the
Chief Justice of the Supreme People's Court have a term of more than 2 years
(accounting for 89.4%), and most are nearly 03 years (accounting for 57.6%).
- Regarding the jurisdiction of cassation and reopening
According to the current civil procedure code, the judicial committee of
the Supreme People's Court has jurisdiction over the cassation and reopening
procedures of judgments, decisions of a district or provincial court within the
appealed territory; The Judicial Council of the People's Court hears the
judgments and rulings of the superior people's courts being protested.
Regarding the jurisdiction of the cassation and reopening panel:
Out of a total of 66 cassation decisions of the Judicial Council of the
Supreme People's Court hearing disputes related to the loan guarantee contract
at the surveyed credit institution, there are 45 cases of cancelling the appellate

judgment, the first-instance judgment to resolve the first instance (68.2%); 17
cases of cancelling the appellate judgment for appellate trial again (25.75%); 04
cases where the jury does not accept the appeal, uphold the appellate judgment
(all are protested by the head of the People's Procuracy); 03 cases of
cancellation of the decision to suspend the appellate trial or the first-instance
judgment to re-resolve the first instance, although the decision to suspend the
appellate trial has no errors, but due to the legally effective first-instance
judgment under the appellate decision, the decision to suspend the appellate
trial must also be canceled; has not yet recorded any case where the Judicial
Council has partially or fully modified the judgments of the subordinates; and
in no case the Court of Judges dismissed the appellate judgment uphold the first
instance judgment [data source Department II].
3.3. The practice of cassation and reopening trial for disputes on loan
guarantee contracts at credit institutions at the Supreme People's Court:
3.3.1. Current status of the application, results of acceptance and
settlement according to cassation and reopening procedures for disputes on
loan guarantee contracts at credit institutions at the Supreme People's Court:
According to the statistics of the Director and Inspection Department II
of the Supreme People's Court, from June 1, 2015 to April 1, 2019, The total
number of petitions and petitions received by units of people's courts is 661 (of
which, in May 4, 2015, there were 149 applications; in 2016, there was 139
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applications; in 2017, it received 148 applications, in 2018 it received 151
applications; on 06 months of 2019, there was 74 applications)
3.3.2. Common violations of Magistrates’ and appellate courts in cases
of dispute over loan guarantee contracts at credit institutions:
3.3.2.1. Violations of the proceedings:
Determination of ineligibility to participate in the proceedings:

The incorrect determination of representatives to participate in the
proceedings will be considered a serious violation of the proceedings. More
seriously, in some cases due to incorrect determination of the dispute, the Court
has stripped the independent claim of the person with related interests and
obligations.
No distinction between the guarantee relationship and the mortgage
relationship of a third party: the parties' use of the name of the security
transaction inconsistently, some call it "mortgage of the third party's property"
elsewhere call "guarantee", and although it is defined as a guarantee
relationship, the parties only make a mortgage contract to secure the guarantee
obligation without making separate guarantee contract
3.3.2.3. There are signs of the criminalization of civil relations,
commercial business: The criminalization of economic relations, civil is always
a current issue in the jurisprudence world. In recent times this situation has
decreased, but still exists. In the banking credit sector, there are still some cases
where criminalization is possible.
3.3.2.4. Incorrectly sentencing on the handling of collateral: With the
declaration in some judgments, the Court at all levels has defaulted to the
guarantee obligation as a reserve obligation. However, if assuming the concept
of guarantee obligation is a reserve obligation, such statement is also inaccurate
3.3.2.5. Other Errors: Determining whether the credit relationship is civil
or commercial in the case of consumer loans.
3.3.3. Problems in the procedures for settling disputes on loan guarantee
contracts at credit institutions according to cassation and reopening
procedures:
Firstly, regarding staff in charge of cassation and reopening procedures:
Most of the inspectors at the Department of Director II are recruited
directly from law training institutions, that is to say , students graduating from
Law Universities immediately can be considered for admission to Department
of Inspection Director II. At present, there are only 02/40 officers who used to

work as judges at district and provincial courts.
Secondly, on the process of accepting and resolving petitions according to
cassation and reopening procedures at the Supreme People's Court:
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A case may have to be reported up to 08 times before the final decision is
to respond to the petition or appeal according to cassation and reopening
procedures. The process is too lengthy and has too many people are giving an
opinion on a case.
Third, in terms of facilities and working conditions for the team of
Examiners studying case files.
Currently, the equipment of essential means such as computers, copiers,
scale machines, projectors and a smooth network connection ... have not yet
fully met the working conditions for the inspector.
CONCLUSION OF CHAPTER 3
By studying the provisions of the law on loan guarantee contract
settlement at credit institutions according to cassation and reopening procedures
and cassation decisions in the period from 2013-2018, It is assumed that there
are disputes on proceedings, but most of them are still disputes related to the
content of the guarantee relationship, especially disputes related to the
guaranteed property.
Chapter 4
DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW, IMPROVE
THE EFFICIENCY OF DISPUTE SETTLEMENT FOR LOAN
GUARANTEE CONTRACTS AT CREDIT INSTITUTIONS
ACCORDING TO CASSATION AND REOPENING PROCEDURES AT
THE SUPREME PEOPLE'S COURT
4.1. Orientation to complete the law on settlement of loan guarantee
contract disputes at credit institutions according to cassation and

reopening procedures.
- Timely solving the limitations, shortcomings and arising new
requirements:
- Ensuring the uniformity of law:
- Ensuring the effectiveness of the loan guarantee contract at a credit
institution, ensuring safety for credit relations, and effective capital circulation:
- Ensuring the legitimate rights and interests of the involved parties:
- Ensuring effectiveness of dispute resolution:
4.2. Solutions to complete the law on disputes settlement on loan
guarantee contracts at credit institutions according to cassation and
reopening procedures
4.2.1. Solution for completing legal regulations
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4.2.1.1. Complete legal provisions on loan guarantee contracts at credit
institutions:
- First, on the performance of the guaranteed obligation: from the point
that the debt-repayment obligation first belongs to the main obligor. Therefore,
the author thinks that the provisions on guarantee should also stipulate that the
obligation to repay the credit institutions first belongs to the borrower. Only
when the borrower is unable to repay the debt, the guarantor will perform the
debt repayment obligation within the committed scope.
-Second, it is necessary to regulate the righteous guarantee recipient: For
the Judicial Council of the Supreme People's Court, in the short term, it is
necessary to have an official view on the protection of the credit institution that
receives the righteous guarantee (may be issued in the form of a Court Law). In
the long term, it is necessary to study and amend Clause 2 Article 133 of the
Civil Code.
-Third, need to specify more about the case of assuring guarantee

obligations:
The author recommends that the next amendment of the civil code need to
add provisions on the consequences of the pledge, mortgage to secure the
guarantee obligation, in the direction that the guarantor uses his property to
pledge. Pledge or mortgage to the guarantee to secure the performance of the
guarantee obligation, that is, the pledged or pledged property does not directly
guarantee the obligor's obligations but rather to secure the obligations of the
guarantee.
- Fourth, amending the regulations on collateral handling:
In the long term, it is necessary to study the theory of guaranteed rights in
the next revision of the Civil Code.
- Fifth, add provisions on the conditions of the guarantor: The author said
that, Vietnam's Civil Law also needs to consider the provision of separate
conditions on the guarantor so that the implementation of the guarantee
obligation. Receive (if any) are favourable.
Sixth, about the obligations of the guarantee and the guarantor:
The practice of resolving disputes of these types of judgments shows that,
in many cases, the guarantee does not perform or perform pro formally some
obligations of the guarantee.
- Seventhly, amending and supplementing a number of provisions of laws
related to mortgage guarantee of guarantee obligations:
- For the Land Law: it is necessary to guide and correct the following
regulations:
- Provisions at term c, Clause 1, Article 175 of the 2013 Land Law.
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- Clause 1, Article 188 of the 2013 Land Law, can be understood, the land
user does not have the right to mortgage the land use rights to be formed in the
future.

- Regarding the effective date of the land use right mortgage contract.
For the Civil Procedure Law:
The Supreme People's Court needs a criminal record to guide, in this case,
all tenants who are actually using the mortgaged property in the proceedings,
but if they are absent, or cannot find their address, the Court still resolves
according to the general regulations.
- Regarding the Law on Execution of Civil Judgments: term d, Clause 1,
Article 48 provides for cases of postponement of judgment execution if assets
for judgment execution are disputed at the Court. This rule can be abused.
- For the Law on Housing: Article 118 stipulates that a house in the
mortgage transaction is a house that must have a Certificate. Practically very
few houses have a Certificate, especially in rural areas.
- For the Penal Code:
In order to avoid criminalization of civil and economic relations, the Penal
Code needs to amend Article 175 on the crime of abuse of credit and
appropriation of property, in the direction of more clearly defining the contents
of the act of abuse of credit. assets in credit relations have security measures.
For registration of property and registration of security transactions:
It is necessary to soon develop a Law on Asset Registration and Secured
Transaction Registration, which stipulates the types of assets required for
registration, the order and procedures for registration and the obligation to
provide information on assets.
4.2.1.2. Complete legal provisions on the settlement of disputes on loan
guarantee contracts at credit institutions according to cassation and
reopening procedures
First, on the conditions to appeal according to cassation procedures;
Second, on the assignment of documents and cassation records research:
Third, to shorten the time limit for cassation complaints and cassation
complaints due;
Fourth, it is advisable to abolish the provision for summoning proceedings

and other persons involved in the appeal to the cassation hearing;
Fifth, on the need to stipulate that the person who submits the petition for
cassation review must pay the cassation fee;
Sixth, should add provisions on the person who signed the Cassation
Review decision in case the presiding judge disagrees with the decision to
appeal;
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Seventh, it is necessary to stipulate the establishment of a Cassation
Review Panel for cassation and reopening proceedings, especially for the types
of applications for reconsideration of the reply of the People's Court. and
petition for reopening;
Eighth, on the basis to appeal according to reopening procedures;
Ninth, on the time limit for appeal according to reopening procedures:
The 1-year time limit is counted from the date the competent Court
receives the reopening request and documents and evidence containing new
details of the involved parties;
Tenth, it is necessary to amend the provisions on the jurisdiction of the
Cassation Review and reopening trial panel.
- For the cassation trial panel, it is necessary to add in the direction of
having the right to "cancel part or all of the legally effective Court's judgments
or decisions for re-trial according to first-instance and appellate procedure,
Cassation
- For the reopening trial panel, it is necessary to amend this provision in
the civil prosecution code in the direction that the reopening trial panel has the
power to cancel part of the legally effective judgment or decision for resolution.
Resolve this part.
Eleven, it is necessary to stipulate the number of times postponement of
the execution of judgments with legal effect:

It is necessary to specify the direction that the Court's legally effective
judgments or decisions can be postponed from execution only once by one of
the persons who are competent to protest according to cassation review.
4.3. Proposes for the higher effectiveness of dispute settlement of
guarantee contract for assuring debt in Credit Institution in accordance
with procedure of cassation, reopening at Supreme People’s committee.
Firstly, strengthen the capacity in fostering and training staff in charge of
cassation and reopening procedures.
Secondly, prepare clear and stable documents on the process of accepting
and settling complaints according to cassation and reopening procedures.
Regarding the assignment of examiners to study and settle applications:
It is necessary to reduce the reporting process for the resolution of cases
according to cassation and reopening procedures.
Thirdly, improve facilities and working conditions for the team of
inspectors who study case files.
CONCLUSION CHAPTER 4
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