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MINISTRY OF
FINANCE
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SOCIALIST REPUBLIC
OF VIETNAM
Independence - Freedom - Happiness
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No. 55/2021/TT-BTC
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Hanoi, July 8,
2021
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CIRCULAR
PROVIDING
INSTRUCTIONS ABOUT MANAGEMENT, ALLOCATION, ADVANCE PAYMENT AND REIMBURSEMENT OF
COSTS OR FUNDS FOR ENFORCEMENT OF COURT JUDGEMENTS AGAINST COMMERCIAL ENTITIES
Pursuant to the Law on State Budget dated June
25, 2015;
Pursuant to the Law on Enforcement of Criminal
Judgements dated June 14, 2019;
Pursuant to the Government’s Decree No. 163/2016/ND-CP
dated December 21, 2016, elaborating on implementation of certain articles of
the Law on State Budget;
Pursuant to the Government’s Decree No.
44/2020/ND-CP dated April 8, 2020, regulating law enforcement against
commercial entities;
Pursuant to the Government's Decree No.
87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers and
organizational structure of the Ministry of Finance;
Upon the request of the Director of the
Department of Finance for National Defence, Security and Special Affairs,
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Article 1. Scope
This Circular provides
instructions about management, allocation, advance payment and reimbursement of
costs or funds for enforcement of judgements against commercial entities (hereinafter
referred to as enforcement) under the provisions of Article 44 in the
Government's Decree No. 44/2020/ND-CP dated April 8, 2020, regulating law
enforcement against commercial entities (hereinafter referred to as Decree No.
44/2020/ND-CP).
Article 2.
Subjects of application
1. Enforcement decision makers.
2. Authorities supervising
enforcement decision makers (hereinafter referred to as decision-making
authorities), authorities enforcing enforcement decisions.
3. Commercial entities that fail
to comply with or unduly comply with the Court’s judgement or decision already
having legal effect to the extent of being subject to law enforcement measures
(hereinafter referred to as entities subject to enforcement).
4. Financial institutions and
State Treasuries at all levels.
5. State regulatory authorities
supervising commercial entities and other entities and persons related to
enforcement.
Article 3.
Principles of management of enforcement costs
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2. Commercial entities subject to
enforcement shall pay all enforcement costs to enforcement decision-making
entities in accordance with this Circular.
Article 4.
Details of enforcement costs
1. Enforcement costs shall be
identified in accordance with Article 43 in the Decree No. 44/2020/ND-CP.
2. Enforcement costs, including:
a) Costs identified under clause 1
of this Article shall be treated based on contracts, contract termination
records, minutes on handover of distrained property (in case of the authorized
custody of distrained property), invoices and evidence of actual, legitimate
and valid expenditures in accordance with current regulations and must be subject
to approval granted by enforcement decision makers.
b) In particular, benefits paid to
persons mobilized to directly participate in and guard enforcement activities
as follows:
Amount paid to a person leading
the implementation of a law enforcement decision who works for an authority
implementing a law enforcement decision is VND 150,000 per day on duty; Amount
paid to a person mobilized to participate in execution of a law enforcement
decision is VND 100,000 per day on duty.
Article 5.
Allocation of enforcement funds
Allocation of funds for
enforcement of court judgements against commercial entities shall be subject to
laws on state budget and the Government’s Decree No. 11/2020/ND-CP dated
January 20, 2020, prescribing state treasury administrative procedures.
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1. Before commencement of the
enforcement process, enforcement decision-making authorities shall approve the
estimate of costs of enforcement. The estimate of enforcement costs should
consider enforcement measures to be applied, time and location of enforcement,
enforcement plans and forces (e.g. personnel size and participants).
After being approved, a copy of
the cost estimate must be sent to the entity subject to enforcement, enclosing
the enforcement decision, the decision on deduction of money from the account
of the commercial entity subject to judicial measures (in case of enforcement
measures existing in the form of account blockade) in order for that entity to
pay enforcement costs (it must clarify the date (day, month and year) of the
sanction, the amount to be paid, the address for payment in cash, or the
account number in case of payment by transfer and other necessary information).
Meanwhile, the enforcement decision-making authority must send the credit
institution, the State Treasury, the securities company that is managing the
account of the commercial entity subject to judicial measures and the authority
having competence in enforcement at the same level (in case of application of
Article 42 of Decree No. 44/2020/ND-CP).
In case of enforcement by freezing
the account, the head of the criminal judgment execution authority shall issue
a decision to deduct money from the commercial entity's account on condition
that amount does not exceed the amount required to discharge obligations to
execute judicial measures and the costs needed for enforcement. Immediately
after receiving the decision on deduction of money from the account of the
commercial entity subject to judicial measures, the credit institution, the
State Treasury that is managing the account of the commercial entity, and/or
the securities company where the commercial entity opens their trading account,
shall have to deduct the money from the account and transfer it to the
competent criminal judgment enforcement authority for the purposes of
commencement of enforcement of judicial measures.
2. In case enforcement costs have
not yet been collected from the entity subject to enforcement because that
entity does not voluntarily pay or due to other objective causes, based on the
approved enforcement cost estimate, the authority carrying out the enforcement
decision (or the authority having enforcement jurisdiction at the same level as
prescribed in Article 42 of Decree No. 44/2020/ND-CP) can request the
enforcement decision-making authority to advance on enforcement costs from
their enforcement budget. The maximum advance amount is equal to the estimated
allocation received by the enforcement decision-making authority.
3. The advance payment dossier
includes the annual estimate assigned by the competent authority, the written
approval of the cost estimate for enforcement approved by the competent
authority and the order of withdrawal of the budget (advance) as legally
prescribed.
Article 7.
Settlement and reimbursement of enforcement costs
1. Upon the completed execution of
the enforcement decision, the enforcement decision-executing authority (or the
competent enforcement authority at the same level as prescribed in Article 42
of Decree No. 44/2020/ND-CP) shall seek the enforcement decision maker’s
approval of the settlement of enforcement costs. The enforcement
decision-making authority shall be responsible for sending the approved
statement on settlement of enforcement costs to the entity subject to
enforcement (in case that entity has already paid enforcement costs).
If the approved settlement amount
is lower than the amount already paid by the entity subject to enforcement, the
authority issuing the enforcement decision shall refund the difference to the
entity subject to enforcement. If the approved settlement amount is greater
than the amount already paid by the entity subject to enforcement, the entity
subject to enforcement authority shall pay the deficit.
2. In case where the advance on
enforcement costs has been made as prescribed in Clause 2, Article 6 of this
Circular, based on the approved statement on settlement of enforcement costs,
the enforcement decision-making authority shall issue a written notice of the
approved statement on settlement of enforcement costs to the entity subject to
enforcement to ask them to pay enforcement costs (the written notice must
clearly state the date (day, month and year) of the sanction, the amount to be
paid, the address for payment in cash or the account number in case of payment
by bank transfer and other necessary information).
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3. In case the enforcement costs
are collected from the proceeds from the property auction (as prescribed in
Articles 32 and 33 of Decree No. 44/2020/ND-CP), after deducting the property
auction costs under the provisions of the law on property auction, the
enforcement decision-executing authority (or the competent enforcement
authority at the same level as prescribed in Article 42 of Decree No.
44/2020/ND-CP) shall reimburse enforcement costs. In case where the entity
subject to enforcement has paid enforcement costs, the enforcement
decision-executing authority (or the competent enforcement authority at the
same level as prescribed in Article 42 of Decree No. 44/2020/ND-CP) shall
reimburse the enforcement proceeds from the property auction to the entity
subject to enforcement.
4. In case where it is impossible
to recover the enforcement costs because the entity subject to enforcement is
bankrupt or dissolved to the extent of being out of money or property to pay
the enforcement costs, the enforcement decision-executing authority shall
report to the enforcement decision maker on this situation under the provisions
of Clause 5 of this Article.
5. Annually, at the time of making
the state budget estimate, the enforcement decision maker shall report on the
use of the advance funding for enforcement, including: the amount of money that
has been paid in advance, the amount of costs recovered; the amount of costs
that have not been recovered yet; the amount of costs that cannot be recovered
(if any); reasons for non-recovery and recommendations submitted to superior
authorities and financial institutions at the same level.
The dossier for refund of costs of
enforcement of administrative penalties paid in advance shall conform to the
provisions of Clause 3, Article 6 of this Circular and current regulations on
refund of the advanced budget.
Article 8.
Budgeting, compliance and finalization
1. Budgeting, compliance and
finalization of annual regular expenditures by the enforcement decision-making
authority shall be subject to Law on State Budget and other instructional
documents. Enforcement funds shall be included in the annual budget prepared by
the enforcement decision-making authority.
2. By the end of the year and upon
expiry of the duration for review of the cost finalization statement in
accordance with the Law on State Budget and other instructional documents, the
unused budget balance will be canceled according to regulations while the
advance balance of the remaining enforcement costs will be recovered by
transferring it to the next year's advance within the annual budget of the
enforcement decision-making authority.
Article 9.
Entry into force
1. This Circular shall enter into force
as of August 25, 2021.
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PP. MINISTER
DEPUTY MINISTER
Do Hoang Anh Tuan