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THE MINISTRY OF
JUSTICE - THE SUPREME PEOPLE’S COURT - THE SUPREME PEOPLE’S PROCURACY – THE
MINISTRY OF FINANCE
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
09/2014/TTLT-BTP-TANDTC-VKSNDTC-BTC
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Hanoi, February
28, 2014
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JOINT CIRCULAR
ON
GUIDELINES FOR PILOT IMPLEMENTATION OF BAILIFF INSTITUTION PRESCRIBED IN
RESOLUTION NO. 36/2012/QH13 DATED NOVEMBER 23, 2012 OF THE NATIONAL ASSEMBLY
Pursuant to Law on enforcement of civil
judgments;
Pursuant to Law on issuance of legislative
documents;
Pursuant to Law on organization of People’s
Court;
Pursuant to Law on organization of the People’s
Procuracy;
Pursuant to Resolution No. 36/2012/QH13 dated
November 23, 2012 of the National Assembly on continuation in pilot
implementation of bailiff institution;
Pursuant to Decree No. 61/2009/NĐ-CP dated July
24, 2009 of the Government on pilot organization and operation of bailiffs in
Hochiminh city;
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Pursuant to Decree No. 60/2003/NĐ-CP dated June
6, 2003 of the Government on guidelines for implementation of the Law on State
budget;
Pursuant to Decree No. 22/2013/NĐ-CP dated March
13, 2013 of the Government defining the functions, tasks, entitlements and
organizational structure of the Ministry of Justice;
Pursuant to the Government's Decree No.
215/2013/NĐ-CP dated December 23, 2013 defining the functions, tasks,
entitlements and organizational structure of the Ministry of Finance;
The Minister of Justice, Chief Justice of the
Supreme People’s Court, the Chief Procurator of the Supreme People’s Procuracy
and the Minister of Finance jointly issue a Joint Circular on guidelines for
pilot implementation of bailiff institution as prescribed in Resolution No.
36/2012/QH13 dated November 23, 2012 of the National Assembly.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular promulgates guidelines for procedures
and expenditures on duties of bailiffs; operation of Offices of bailiffs;
supervision and inspection of operation of bailiffs of central-affiliated
cities and provinces (hereinafter referred to as provinces) where the bailiff
institutions are implemented.
Article 2. Regulated entities
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1. Bailiffs, Offices of bailiffs;
2. People’s Courts, Civil judgment enforcement
agencies where the bailiff institutions are implemented;
3. Agencies, organizations, and individuals related
to implementation of bailiff institution.
Chapter II
DUTIES OF BAILIFFS
Section 1. DOCUMENT DELIVERY
Article 3. Types of documents
delivered by bailiffs
An Office of bailiffs shall conclude an agreement
on document delivery with Superior Courts (excluding Appellate court of the
Supreme People’s Court) and/or Superior Civil judgment enforcement agencies of
the province where the Office of bailiffs locates, including: Notices, summons,
letters of invitation, decisions on opening trial, verdicts, decisions on trial
in case of absence of litigants; decisions on judgment enforcement, notices or
summons of Civil judgment enforcement agencies.
If necessary, the Courts or Civil judgment
enforcement agencies may conclude agreements on delivery of other documents
with the Office of bailiffs.
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An agreement on document delivery between a Court
or a Civil judgment enforcement agency and an Office of bailiffs shall be
concluded as follows:
1. The Court or the Civil judgment enforcement
agency shall conclude an agreement on rules for document transfer with the Office
of bailiffs. According to the agreement, number and types of specific documents
transferred to the Office of bailiffs shall be kept in a delivery record which
is certified by both contracting parties.
If the documents are delivered beyond the province
where the Office of bailiffs locates, the Court or the Civil judgment
enforcement agency may conclude another agreement on specific cases with the
Office of bailiffs.
2. Each Civil judgment enforcement agency may only
conclude agreements with an Office of bailiffs.
According to actual condition of local government,
the Chief judge of People’s Court of each province shall decide that each Court
of the province may conclude with whether one or multiple Office(s) of
bailiffs.
Each Office of bailiffs has right to conclude
agreements on document delivery to multiple Civil judgment enforcement agencies
or Courts in the province where the Office of bailiffs locates.
The Chief judge of People’s Court and/or the
Director of Department of civil judgment enforcement of a province shall
cooperate with the Director of Service of Justice in unanimity of
administrative divisions where Offices of bailiffs may conclude agreements with
Courts or Civil judgment enforcement agencies of that province.
3. An agreement on document delivery shall contain:
types of documents delivered; procedures required notifications; term of
agreement; procedures for document delivery; rights and obligations of
contracting parties; expenditures on document delivery.
4. The Court or the Civil judgment enforcement
agency shall transfer all types of documents as agreed and the Office of
bailiffs may not refuse any request for document delivery.
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Article 5. Document delivery
Documents shall be sent and received between the
Court, the Civil judgment enforcement agency and the Office of bailiffs every
working day, unless otherwise agreed, provided that the terms of document
delivery are ensured as prescribed in law on procedures and civil judgment
enforcement and they shall be kept in the delivery record form issued herewith.
Article 6. Procedures for
document delivery
1. Procedures for document delivery on civil
judgment enforcement shall be carried out as prescribed in law on civil
judgment enforcement; procedures for document delivery shall be carried out as
prescribed in law on procedures.
2. The document delivery shall use forms of the
Court or forms issued herewith.
The document delivery is considered as completion
if the bailiff follows all procedures as prescribed, including public posting
if it fails to carry out direct document delivery as prescribed in law on
procedures and civil judgment enforcement.
Section 2. CERTIFICATION OF
DOCUMENTARY EVIDENCE
Article 7. Validity of
certified documentary evidence
Certified documentary evidence offered by a bailiff
shall be an evidence source in order for the Court to consider for a lawsuit
settlement and a basis for legal transactions as prescribed in regulations of
law.
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Article 8. Amendments to
technical defects of certified documentary evidence
1. If there are any technical defects during the
recording, typing or printing process of certified documentary evidence, and
the amendments to the certified documentary evidence do not affect to its
authentication, the bailiff shall take responsibility for the amendments to
that defects. The amendments to technical defects of the certified documentary
evidence must be kept in a record, which is made, signed and borne the stamp of
the Office of bailiffs.
If the certified documentary evidence is sent to
the requester and registered at the Service of Justice, the bailiff shall send
notifications to the requester and Services of Justice of amendments to
technical defects. Service of Justice shall send notification of acceptance or
non-acceptance of amendments to the bailiff and the requester.
2. If the certified documentary evidence has two
pages or more, each page must be numbered and borne the stamp.
Section 3. VERIFICATION OF
JUDGMENT ENFORCEMENT CONDITIONS AND JUDGMENT ENFORCEMENT TERMINATION
Article 9. Verification of
judgment enforcement conditions
1. Judgment creditors, judgment debtors, persons
with relevant interests and duties in enforcement under competence in
enforcement of Civil judgment enforcement agencies of the province where the
Office of bailiffs locates have rights to conclude agreements on verification
of judgment enforcement conditions with Offices of bailiffs.
When concluding an agreement on verification of
judgment enforcement conditions with an Office of bailiffs, the judgment
creditor or the judgment debtors must provide judgments of the Court and
relevant documents (if any); the person with relevant interests and duties in
enforcement must provide documents proving their rights and obligations
directly relating to the enforcement.
2. The agreement on verification of judgment enforcement
conditions between the requester and the Office of bailiffs shall be concluded
under form of service agreement.
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Article 10. Judgment
enforcement termination
1. If a requester requires the Office of bailiffs to
terminate the enforcement or a bailiff is carrying out enforcement but the
judgment enforcement conditions arise beyond the province where the Office of
bailiffs locates, the procedures below shall be followed:
a) Contracting parties shall terminate the
agreement;
b) The Head of the Office of bailiffs shall issue a
decision or request the competent agency to issue a decision on revocation of
decisions, notices or other documents on enforcement which are not implemented;
c) Other issues shall be dealt with as prescribed
in regulations of law on civil judgment enforcement.
2. Regulations in Clause 1 of this Article shall
not apply to the case in which the termination of enforcement requested to the
Office of bailiffs by the requester creates negative effects on lawful rights
and interests of a third person.
3. When terminating the agreement and dealing with
issues, if there is any dispute, contracting parties shall request the Court
for settlement as prescribed.
Section 4. FORMS OF OFFICES OF
BAILIFFS
Article 11. Forms of Offices
of bailiffs
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a) Logbooks
b) Forms of agreements;
c) Forms of decisions on civil judgment
enforcement;
d) Forms of notices, summons, reports, and
application in civil judgment enforcement.
2. The Court or the Civil judgment enforcement
agency shall make a record of management of their operation related to
bailiffs. The preparation and use of the record shall be allocated from
operation funding of the Court or Civil judgment enforcement agency as
prescribed.
Chapter III
EXPENDITURES ON DUTIES
OF BAILIFFS
Article 12. Entities subject
to expenditures on document delivery
Government budget shall pay expenditures on
delivery of documents of the Courts or Civil judgment enforcement agencies,
unless the law on procedures and law on civil judgment enforcement promulgate
that litigants are subject to expenditures on document delivery.
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People’s Courts, Departments of civil judgment
enforcement, Service of Justice and Service of Finance of the province where
the Office of bailiffs locates shall conclude agreements on expenditures on
document delivery applying to each district of the province with Offices of bailiffs
according to its local government; concurrently, they shall send State
Treasuries where units subject to expenditures on document delivery open their
accounts as the basis for determination of expenditures on document delivery as
follows:
1. Within the scope of the district where the
Office of bailiffs locates: not exceeding VND 65,000 per duty (including VAT).
2. Beyond the scope of the district where the
Office of bailiffs locates and within the province: not exceeding VND 130,000
per duty (including VAT).
3. If the documents are delivered beyond of the
province where the Office of bailiffs locates, the Court or the Civil judgment
enforcement agency may conclude an agreement on expenditures on document
delivery with the Office of bailiffs, including:
a) Actual expenditures provided that they do not
exceed duty expenses applying to governmental agencies and public service
providers as prescribed;
b) Actual daily wage of a person in charge of
document delivery, provide that it does not exceed duty expenses applying to
governmental agencies and public service providers as prescribed;
4. Expenditures on document delivery prescribed in
this Article include public posting in case of failure of direct document
delivery as prescribed in law on procedures and civil judgment enforcement.
5. Expenditures on document delivery prescribed in
this Article shall only apply to agreements performed from the effective date
of this Joint Circular.
Article 14. Payment of
expenditures on document delivery
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The Office of bailiffs must prepare and send
invoices to the Court or the Civil judgment enforcement agency. Within 5
working days, from the date on which the invoice is received, above authorities
must complete procedures and payment documents, and then transfer money
deposited in the State Treasuries where their accounts are opened to make
payment of expenditures on document delivery to the Office of bailiffs.
2. If it fails to collect money from litigants on
schedule as prescribed in Clause 1 of this Article, the Civil judgment
enforcement agency shall pay an advance to the Office of bailiffs from budget
estimates allocated by the competent agency as prescribed in law on government
budget. The Civil judgment enforcement agency must expedite recovery of
expenditures on document delivery paid by the litigants to repay to government
budget.
3. With regard to delivery of documents of the
Civil judgment enforcement agency, if the judgment is enforced under an
entrustment, the Civil judgment enforcement agency which transferred documents
to the bailiff shall be subject to payment of the expenditures on document
delivery. If it fails to collect money from the litigants subject to
expenditures on document delivery, the Civil judgment enforcement agency as a
trustor must request the Civil judgment enforcement agency as a trustee in
writing to recover the expenditures on document delivery from the litigants.
4. State Treasuries shall control the payment of
expenditures on document delivery as prescribed in Circular No. 161/2012/TT-BTC
dated October 2, 2012 of the Ministry of Finance on control and payment of
government budget expenditures through State Treasuries.
Article 15. Preparation of
budget estimates for document delivery
Every year, according to the workload of the
previous year and expenditures prescribed in Article 13 of this Circular and
estimated workload in the planed year, the Court and Civil judgment enforcement
agency where the pilot bailiff institution is carried out shall prepare budget
estimates for document delivery to include in the general budget estimates, and
then send them to superior authority as prescribed in law on government budget,
including:
1. Budget for document delivery paid by government
budget.
2. Advance budget paid by litigants.
Article 16. Expenditures on
certified documentary evidence and verification of judgment enforcement
conditions
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According to the posted fee bracket, the requester
and the Office of bailiffs shall enter into an agreement on fees paid according
to duties or working hours and actual expenditures, including: traveling
expenses; service fees for agencies providing information; expenditures on
witnesses, participants or other expenditures on, if any.
2. When the Office of bailiffs is carrying out
judgment enforcement, if the verification is required, the expenditures on
verification shall be agreed by the bailiff and the requester as prescribed in
Clause 1 of this Article or included in the expenditures on civil judgment
enforcement as prescribed in Article 17 of this Circular.
Article 17. Expenditures on
civil judgment enforcement
1. With regard to direct civil judgment
enforcement, the Office of bailiffs may collect fees according to fees for civil
judgment enforcement as prescribed in law on fees for civil judgment
enforcement.
With regard to complicated cases, the Office of
bailiffs may agree with the litigant about fees for duty performance.
2. If the expenditures on coercive enforcement are
exempt or deducted as prescribed in law on civil judgment enforcement, the
judgment debtor shall send an application for exemption or deduction to the
Office of bailiffs enclosed with documentary evidence. Within 10 days, from the
date on which documentary evidence and application are received, the Head of
the Office of bailiffs shall send the application to the Director of Department
of civil judgment enforcement where the Office of bailiffs locates for
consideration and decision. The Director of Department of civil judgment
enforcement shall consider the exemption or deduction and pay the amount of
exemption or deduction to the Office of bailiffs within 10 days, from the date
on which the application is received, then summarize the total amount and
request the Ministry of Justice for additional allocation.
If the application is rejected, the Head of the
Office of bailiffs must provide explanation in writing to the litigants.
Chapter IV
OPERATION OF OFFICES OF
BAILIFFS
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1. Office of bailiffs is a practice organization of
bailiffs which is operated under a type of business entity and provides public
services for nonprofit purpose.
2. Any Office of bailiffs which is established by a
bailiff shall be operated as a private enterprise.
Any Office of bailiffs which is established by two
bailiffs or more shall be operated as a partnership.
3. Financial regime of each Office of bailiffs
shall comply with financial regime of types of business entity as prescribed in
law on enterprises.
Article 19. Cards and uniforms
of bailiffs
1. Samples of cards and uniforms of bailiffs shall
comply with regulations of the Minister of Justice.
2. Funding for cards of bailiffs shall be allocated
by government budget from the annual funding of the Ministry of Justice.
The Office of bailiffs shall ensure the uniforms
for those bailiffs working at the Office from the its funding.
Article 20. Dissolution and
shutdown of Offices of bailiffs
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1. With regard to dissolution, the Office of
bailiffs must send a plan for dissolution to Service of Justice where the
Office of bailiffs locates. If Services of Justice agrees with the dissolution,
then the Office of bailiffs shall:
a) Complete registration of certified documentary
evidence;
b) Terminate agreements as prescribed;
c) Deal with judgment enforcement as prescribed.
2. If the President of People’s Committee of
province decides suspension of operation of the Office of bailiffs, within 30
days, from the date on which the decision is received, the Office of bailiffs
shall comply with Clause of this Article.
3. Director of Services of Justice must help
People’s Committees of province to observe and expedite the tasks when the
Office of bailiffs is dissolved or shut down.
Chapter V
SUPERVISION OR
INSPECTION OF OPERATION OF OFFICES OF BAILIFFS
Article 21. Scope and
competence in supervision of operation of bailiffs
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1. Supervising the adherence to law of the bailiffs
in the document delivery as prescribed in Law on organization of the People’s
Procuracy, law on civil judgment enforcement and law on procedures.
2. Supervising the adherence to law of the bailiffs
in judgment enforcement as prescribed in Law on organization of the People’s
Procuracy, law on civil judgment enforcement.
Article 22. Rights to appeal
and requests of the People’s Procuracy
1. The People’s Procuracy of district where the
Office of bailiffs locates has right to file an appeal against a decision or
legal acts of the Head of Office of bailiffs or bailiffs within 15 days, from
the date on which the decision is received or violations are detected. The Head
of the Office of bailiffs must provide a response to the appeal within 20 days,
from the date on which the appeal is received.
In case the appeal is rejected, the Head of the
Office of bailiffs has right to request the Director of Department of civil
judgment enforcement of the province where the Office of bailiffs locates for
re-consideration within 5 working days, from the date on which the appeal is
received. The request shall be both sent to the People’s Procuracy appealed and
the superior People’s Procuracy of the People’s Procuracy appealed. The
Director of Department of civil judgment enforcement must provide response
within 30 days, from the date on which the request is received; the response of
the Director shall take effect when it is issued. The response shall be both
sent to the People’s Procuracy * and the People’s Procuracy appealed.
If the response to appeal is unfounded, the Chief
Procurator of the Supreme People’s Procuracy shall request the Minister of Justice
to consider the response to appeal of the Director of Department of civil
judgment enforcement.
2. Rights to appeal and request of the People’s
Procuracy in the supervision of operation of bailiffs shall comply with Law on
organization of the People’s Procuracy, law on civil judgment enforcement and
law on procedures.
Article 23. Inspection of
operation of bailiffs
1. Service of Justice shall take charge and
cooperate with relevant Services, agencies and organization in assistance given
to the People’s Committee of the province where the pilot bailiff institution
is carried out to inspect the organization and operation of Offices of bailiffs
in the administrative divisions.
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2. Inspection of organization and operation of
Offices of bailiffs shall comply with regulations on inspection.
Chapter VI
IMPLEMENTATION
Article 24. Implementation
1. Every six month or irregularly, General Department
of civil judgment enforcement affiliated to the Ministry of Justice, affiliated
units of the People’s Supreme Court, the Supreme People’s Procuracy and the
Ministry of Finance shall assess the implementation of this Circular, take
measures or request Leaders of inter-department or Central steering committee
in charge of pilot institution of bailiffs for consideration.
2. Every three month or irregularly, Service of
Justice, People’s Court of province, Department of civil judgment enforcement,
the People’s Procuracy of province and Service of Finance of province where the
pilot bailiff institution is carried out shall exchange and assess the
implementation of this Circular, take measures and request Leaders of
inter-department and Local steering committee in charge of pilot institution of
bailiffs for consideration.
3. Difficulties that arise during the
implementation of this Circular should be reported to the competent agencies
for consideration
Article 25. Effect
1. This Joint Circular takes effect from April 20,
2014.
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a) Joint Circular No. 12/2010/TTLT-BTP-BTC-TANDTC
dated June 24, 2010 of the Ministry of Justice, the People’s Supreme Court, the
Ministry of Finance on guidelines for Decree No. 61/2009/NĐ-CP dated July 24,
2009 of the Government on organization and operation of bailiffs in pilot
implementation in Hochiminh city;
b) Joint Circular No.
13/2010/TTLT-BTP-TANDTC-VKSNDTC dated July 7, 2010 of the Ministry of Justice,
the People’s Supreme Court, the Supreme People’s Procuracy on procedures for
operation of bailiffs in pilot implementation in Hochiminh city;
c) Circular No. 03/2009/TT-BTC dated September 30,
2009 of the Ministry of Justice on guidelines for Decree No. 61/2009/NĐ-CP
dated July 24, 2009 of the Government on organization and operation of bailiffs
in pilot implementation in Hochiminh city;
3. This Circular shall apply to duties which the
Office of bailiffs has been handled but they have not finished until the
effective date of this Circular./.
PP. EXECUTIVE
JUDGE
THE PEOPLE’S SUPREME COURT
DEPUTY EXECUTIVE JUDGE
Nguyen Son
PP. CHIEF
PROCURATOR
THE PEOPLE’S SUPREME PROCURACY
DEPUTY CHIEF PROCURATOR
Nguyen Hai Phong
PP. THE
MINISTER OF FINANCE
DEPUTY MINISTER
Truong Chi Trung
PP. THE
MINISTER OF FINANCE
DEPUTY MINISTER
Dinh Trung Tung
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