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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
173/2004/ND-CP
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Hanoi,
September 30, 2004
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DECREE
PRESCRIBING THE PROCEDURES FOR, COERCION OF, AND SANCTIONING
OF ADMINISTRATIVE VIOLATIONS IN, THE EXECUTION OF CIVIL JUDGMENTS
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the January 14, 2004 Ordinance on Execution of Civil Judgments;
Pursuant to the July 2, 2002 Ordinance on Handling of Administrative
Violations;
At the proposal of the Justice Minister,
DECREES:
Chapter I
GENERAL PROVISIONS
Article 1.- Scope
of regulation
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Article 2.- Interpretation
of terms
1. "Judgment
creditors" mean individuals or organizations enjoying the rights and
interests stated in the judgments or decisions executed under the Ordinance on
Execution of Civil Judgments.
2. "Judgment debtors"
mean individuals or organizations that must perform the obligations stated in
the judgments or decisions executed under the Ordinance on Execution of Civil
Judgments.
3. "Persons with related
rights and obligations" mean individuals or organizations with the rights
and obligations related to the judgment execution under the Ordinance on Execution
of Civil Judgments.
4. "Representatives"
in the execution of civil judgments mean representatives at law or authorized
representatives, who exercise the rights and perform the obligations of
judgment creditors, judgment debtors or persons with rights and obligations
related to the judgment execution.
5. "Statute of limitations
for requesting judgment execution" means the time limit during which
judgment creditors and judgment debtors are entitled to request
judgment-executing bodies to organize judgment execution; past this time limit,
they shall lose their requesting right, unless otherwise provided for by law.
Article 3.- Transfer
of judgment execution rights and obligations
1. Where judgment creditors or
debtors are organizations which are consolidated, merged, divided, separated,
go bankrupt, or are equitized, the exercise of the right to request judgment
execution or the continued performance of the judgment-executing obligations
shall be effected on the following principle:
a/ For the case of consolidation
or merger, the new organizations shall continue to exercise the right to
request judgment execution or continue to perform the judgment-executing
obligations, unless otherwise provided for by law;
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If the division or separation
decisions do not define the obligations of the new organizations, after such
division or separation, the new organizations shall have to bear joint
responsibility for performing the judgment-executing obligations of the divided
or separated organizations;
c/ For the case of dissolution,
the agencies competent to issue dissolution decisions must inform the
judgment-executing bodies of their decisions before issuing them. The
judgment-executing bodies shall have to coordinate with the agencies competent
to issue dissolution decisions in handling the dissolved organizations' assets
for judgment execution. Where the dissolved organizations' judgment execution
rights or obligations are transferred to other organizations, the latter shall
continue to exercise the right to request judgment execution or continue to
perform the judgment-executing obligations.
Judgment-executing bodies,
judgment creditors, persons with related rights and obligations may request
competent bodies or courts to reconsider dissolution decisions according to law
provisions.
If the dissolved organizations
have no assets left after executing illegal dissolution decisions, the agencies
which have issued such illegal dissolution decisions shall have to perform for
the dissolved organizations the obligation corresponding to such assets;
d/ Where judgment debtors are
organizations which are equitized, before being equitized, they must fulfill
their judgment-executing obligations. If the judgment execution rights and/or
obligations of such organizations are transferred to other organizations, the
latter shall continue to exercise the right to request judgment execution or
continue to perform the judgment-executing obligations;
e/ Where the judgment debtors
are organizations which go bankrupt, the judgment execution rights and
obligations shall comply with the bankruptcy declaration decisions.
2. Where judgment creditors and
debtors are deceased individuals, their judgment execution rights and
obligations shall be transferred to other persons according to law provisions
on inheritance.
If judgment creditors and
debtors are deceased but their judgment execution rights and obligations are
not transferred to other persons, judgment-executing bodies shall issue
judgment execution stoppage decisions according to the provisions of Clause 1,
Clause 2, Article 28 of the Ordinance on Execution of Civil Judgments.
3. In the cases prescribed in
Clause 1 and Clause 2 of this Article, the organizations or individuals that
are transferred the judgment execution rights or obligations may file written
judgment execution requests or must continue to perform the judgment-executing
obligations under the provisions of the Ordinance on Execution of Civil
Judgments and this Decree.
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Regarding other judgment
execution decisions and notices, judgment-executing bodies shall, on a
case-by-case basis, keep unchanged, revoke or issue other appropriate decisions
and/or notices according to law provisions.
Article 4.- Financial
supports for judgment execution
1. The State budget shall
provide supports for judgment debtors that are organizations operating totally with
funds allocated from the State budget only when the judgment execution greatly
affects such organizations in the performance of their assigned tasks, causes
them to stop their operation or dissolve, or affects security, defense or
public order.
2. The central budget shall
provide supports for judgment debtors that are units funded by the central
budget; local budgets shall provide supports for judgment debtors that are
units funded by local budgets.
3. Judgment debtors being
organizations stated in Clause 1 of this Article must take necessary financial
measures to execute judgments according to law provisions. If they are still
unable to execute judgments after having taken necessary financial measures,
such organizations must request in writing their immediate superior managing
agencies to consider financial supports for judgment execution.
The competence to decide on
support levels, procedures for providing financial supports from the State
budget for judgment execution shall comply with the provisions of the State
Budget Law and its guiding documents.
4. Judgment debtors being
organizations that receive financial supports from the State budget for
judgment execution shall have to recover and remit into the State budget money
amounts and property which the damage inflictors must compensate according to
law provisions.
The Finance Ministry shall
assume the prime responsibility for, and coordinate with the Justice Ministry
in, promulgating regulations on financial supports from the State budget for
judgment execution.
Article 5.- Agreement
on judgment execution
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2. Where the cases are executed
by judgment-executing bodies, executors shall make written records clearly
stating the agreement contents. If the involved parties fail to voluntarily
execute the agreement contents, the judgment-executing bodies shall organize
the execution according to the contents of the judgments or decisions.
Where the involved parties reach
an agreement not to request the judgment-executing body to execute part or
whole of a judgment or decision, the judgment-executing body shall make a
written record on the agreed content and issue a decision to stop the judgment
execution with regard to the part not requested for judgment execution
according to the provisions of Clause 3, Article 28 of the Ordinance on
Execution of Civil Judgments. If such agreement is reached after the property
in question is sold or transferred to another person for judgment execution in
strict accordance with law provisions, the consent of the purchaser or transferee
of such asset must be obtained if the judgment is to be enforced under the
provisions of Article 44 and Article 48 of the Ordinance on Execution of Civil
Judgments.
Article 6.- Written
judgment execution requests
1. Requests for judgment
execution and proposition for voluntary judgment execution (called collectively
judgment execution request) must be expressed in writing; if such written
requests are made in languages other than Vietnamese, there must be Vietnamese
translations notarized by competent authorities.
2. A written judgment execution
request shall contain the following principal contents:
a/ The full names and addresses
of the judgment creditor(s), judgment debtor(s) and person(s) with related
rights and interests; date of making of the written judgment execution request;
b/ Contents requested for
judgment execution; contents not requested for judgment execution. The
requested contents must be compatible with the judgment or decision to be
executed;
c/ The serial number of the
judgment or decision; date of its issuance; the judgment- or decision-issuing
court; the decision-issuing arbitration body; the property and income situation
and residential place of the judgment debtor(s) and other necessary information
(if any).
3. If the judgment creditors or
judgment debtors personally express their judgment execution requests at the
judgment-executing bodies, the judgment-executing bodies must make records
clearly stating the above-said contents, which are signed or fingerprinted by
the requesters and signed by the record-making officials. Such records shall
substitute the written judgment execution requests.
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Article 7.- Statute
of limitations for requesting judgment execution
1. The statute of limitations
for requesting judgment execution prescribed in Clause 1, Article 25 of the
Ordinance on Execution of Civil Judgments shall start from the date the
judgments or decisions take legal effect. Where a decision or judgment has not
yet taken legal effect but is promptly executed, the statute of limitations
shall still start from the date the decision or judgment takes legal effect.
The statute of limitations for
requesting judgment execution shall apply only to the cases where judgment
execution is enforced at written requests.
The date of sending of written
judgment execution requests by the involved parties shall be the date of the
postmark (if requests are sent by post), the date the involved parties submit
their requests at the judgment-executing bodies (if the involved parties
personally submit their requests at the judgment-executing bodies) or the date
the involved parties personally orally express their judgment execution requests
at the judgment-executing bodies.
2. The following cases shall be
considered force majeure events or objective obstacles which make it impossible
to file judgment execution requests in due course:
a/ Judgment creditors, judgment
debtors receive no judgments or decisions and this is not due to their fault;
b/ Judgment creditors, judgment
debtors cannot request judgment execution in due course because of work
requirements, medical treatment, natural calamities, fires or other objective
obstacles;
c/ Judgment creditors, judgment
debtors are deceased but their heirs have not been identified yet;
organizations are consolidated, merged, divided, separated, dissolved or
equitized but new organizations or individuals entitled to request judgment
execution have not been identified yet;
d/ It is due to the fault of the
adjudicating bodies, judgment-executing bodies or other bodies that the
judgment creditors cannot file their requests in due course.
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Judgment debtors shall have the
right to prove that the statute of limitations for judgment execution request
has expired.
Article 8.- Verification
of judgment execution conditions
1. Judgment-executing bodies
shall be responsible for verifying the execution conditions of judgment
debtors. Local administrations, ownership and use right registration agencies,
security transaction registration agencies and concerned organizations and
individuals must create conditions and supply necessary information according
to law provisions for judgment-executing bodies to verify the involved parties'
judgment execution conditions.
If judgment debtors have no
property for execution, they must make written reports thereon, with
certification by the commune-level People's Committees of the places where they
reside or by the organizations where they work or their incomes are managed
that they have no property for judgment execution. Judgment creditors shall
have the right to prove that judgment debtors have property for judgment
execution.
2. Judgment debtors shall be
considered having no conditions yet for performing their property obligations
in the following cases:
a/ They have no incomes or low
incomes which only meet their and their families' minimum subsistence; have no property
at the time of verification or have property of nominal value, which is
insufficient or only sufficient for covering judgment execution expenses, have
property which, as prescribed by law, must not be handled for judgment
execution or unsalable property, common property which is not yet divided, or,
for other objective reasons, cannot be handled for judgment execution;
b/ They meet with prolonged
special economic difficulties caused by natural calamities, fires, accidents or
ailments.
3. Judgment debtors shall be
considered having no conditions yet for performing the obligations which, under
judgments or decisions, they have to perform on their own if they are being
seriously ill or if they cannot perform such obligations for other objective
reasons.
Chapter II
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Article 9.- Receipt
of judgments, decisions; receipt of written judgment execution requests
1. Judgment-executing bodies
must make entries in the judgment and decision receipt books immediately after
receiving court judgments or decisions. Judgment and decision receipt books
must be clearly recorded with the contents of judgments or decisions; contents
of the property distraint or custody records and exhibit seizure records (if
any). When transferring their judgments or decisions to judgment-executing
bodies, courts shall also have to hand over exhibits and property kept in
custody (if any) to judgment-executing bodies.
2. Judgment-executing bodies
must make entries in judgment execution request receipt books and issue to the
requesters request-receipt cards immediately after receiving the involved
parties' judgment execution requests. Judgment execution request receipt books
must be clearly recorded with the contents of judgment execution requests.
3. Where judgment execution
requests are not properly made as prescribed in Article 6 of this Decree,
judgment-executing bodies shall guide judgment execution requesters to make
written requests as prescribed.
Where the cases do not fall
under their judgment execution decision-issuing jurisdiction,
judgment-executing bodies shall guide the requesters to come to competent
judgment-executing bodies according to the provisions of Article 21 of the
Ordinance on Execution of Civil Judgments.
Where there are grounds for
determining that written judgment execution requests are made after the expiry
of the statute of limitations, the heads of judgment-executing bodies shall
issue decisions to reject such requests.
Article
10.- Issuance of judgment execution decisions
1. The heads of
judgment-executing bodies shall issue a common judgment execution decision for
all provisions subject to active execution in a judgment or decision. For
provisions on return of property or refund of legal fee advances, the heads of
judgment-executing bodies shall issue a judgment execution decision for each
involved party.
The heads of judgment-executing
bodies shall issue a judgment execution decision for each written judgment
execution request. For complicated cases where there is one judgment debtor but
there are many judgment creditors, the heads of judgment-executing bodies may
issue a common judgment execution decision for many written judgment execution
requests.
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2. After issuing judgment
execution decisions, the judgment-executing bodies must make entries in the
judgment execution enforcement books.
Judgment execution shall start
from the date of issuance of judgment execution decisions.
3. Judgment and decision receipt
books, judgment execution request receipt books, judgment execution enforcement
books and other books related to judgment execution shall be made according to forms
set by the Justice Ministry.
Article
11.- Judgment execution entrustment principles
1. Judgment execution shall only
be entrusted to judgment-executing bodies of the localities where judgment
debtors reside, work, have property or head offices.
2. Where there are many judgment
debtors who reside in different localities or their properties are located and
incomes are generated in different localities, different judgment execution
components shall be entrusted to judgment-executing bodies in such localities,
except for the performance of joint obligations.
3. The judgment execution
entrustment is effected among judgment-executing bodies, regardless of their
operation localities and of whether they are civil or military
judgment-executing bodies.
4. District-level
judgment-executing bodies must not entrust judgment execution to
provincial-level judgment-executing bodies in the same localities.
Article
12.- Competence to issue judgment execution entrustment decisions
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a/ To entrust provincial-level
judgment-executing bodies of other localities to execute the following cases:
- To execute judgments or
decisions regarding the reinstatement of laborers or the payment of damages by
judgment debtors that are State agencies of provincial or higher level;
- To execute judgments or
decisions involving foreign elements or related to intellectual property
rights;
- To execute judgments or
decisions on bankruptcy declaration; decisions of Vietnam Trade Arbitration;
- To execute judgments or
decisions under which many judgment debtors with joint responsibilities live in
different urban districts, rural districts, towns and/or provincial cities in
the provinces where judgment execution is entrusted to.
b/ To entrust military
zone-level judgment-executing bodies to execute cases prescribed at Point a,
Clause 1 of this Article but falling under the executing jurisdiction of
military zone-level judgment-executing bodies;
c/ To entrust district-level
judgment-executing bodies to execute other cases, except for the cases
prescribed at Points a and b, Clause 1 of this Article.
2. The heads of district-level
judgment-executing bodies may entrust the execution of cases falling under
their executing jurisdiction to provincial-level judgment-executing bodies,
military zone-level judgment-executing bodies or district-level
judgment-executing bodies of other localities.
3. The heads of military
zone-level judgment-executing bodies may entrust the execution of cases falling
under the executing jurisdiction to other military zone-level
judgment-executing bodies, provincial-level judgment-executing bodies or
district-level judgment-executing bodies.
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1. Before entrustment,
judgment-executing bodies must complete the handling of properties kept in
custody, exhibits transferred from courts, distrained properties directly
related to the entrusted work for judgment execution. Where the handling of
these properties may be difficult, prolonged or they deem that the property
value is insufficient for judgment execution, they may entrust
judgment-executing bodies of the places where there are sufficient conditions
for execution before the handling of such properties completes.
Where judgment-executing bodies
have issued judgment execution decisions but later deem that entrustment is
necessary, they must issue decisions to revoke part or whole of judgment
execution decisions and entrust the execution to the places where conditions
for execution are available.
2. Entrustment decisions must
clearly state the entrusted work, provisions which have been completely
executed, provisions which need to be further executed and information
necessary for the performance of the entrustment.
Entrustment decisions must be
enclosed with judgments, decisions, copies of property distraint or custody
records. Where they must entrust execution to many places, judgment-executing
bodies may make duplicates of judgments or decisions, affix their stamps
thereon and send them to the entrusted judgment-executing bodies.
Within three working days as
from the date of receiving the entrustment, the entrusted judgment-executing
bodies must notify in writing the entrusting judgment-executing bodies thereof.
3. When deeming that judgment
debtors have no property, residence or do not work or have no head-offices in
their localities, the entrusted judgment-executing bodies shall handle such
cases as follows:
a/ If the entrusting
judgment-executing bodies issue execution decisions on their own initiatives,
the entrusted bodies must further entrust the execution to judgment-executing
bodies of the places where conditions for execution are available;
b/ If judgment-executing bodies
issue judgment execution decisions at the written requests of judgment
creditors, the entrusted judgment-executing bodies shall issue decisions to
return the written requests to the involved parties and guide them to send
their written requests (together with the written request return decisions and
relevant documents) to the judgment-executing bodies of the places where
conditions for execution are available. The judgment-executing bodies of the
places where conditions for execution are available must issue judgment
execution decisions according to the involved parties' written requests.
4. Entrustment decisions must be
sent to the courts which have transferred judgments or decisions and the
people's procuracies of the same level, the people's procuracies of the places
where entrustment is accepted, judgment creditors, judgment debtors and persons
with related rights and obligations.
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1. In case of active judgment
execution, the time limit for judgment execution postponement prescribed at
Point c, Clause 1, Article 26 of the Ordinance on Execution of Civil Judgments
shall be no more than ninety days, counting from the date of issuance of
judgment execution postponement decisions; where judgment debtors are serving
imprisonment sentences or their whereabouts are not identified yet, the
postponement time limit may exceed ninety days. Judgment-executing bodies must
issue decisions to continue judgment execution if they detect that judgment
debtors have conditions for judgment execution during the judgment execution
postponement period or at the expiry of the judgment execution postponement
period.
2. Where distrained properties
involve disputes which are being settled by courts, the judgment execution
postponement time limit shall start from the date the courts receive the cases
to the time the court judgments or decisions on the settlement of such disputes
take effect.
3. In case of judgment execution
at judgment debtors' written requests, judgment-executing bodies shall accept
the judgment execution postponement proposals of judgment creditors only when
they obtain the judgment debtors' consent.
The involved parties' requests
for, or consent on, judgment execution postponement must be expressed in writing,
clearly indicating the requested contents and judgment execution postponement
periods and containing the involved parties' signatures.
When the judgment execution
postponement conditions no longer exist, the heads of judgment-executing bodies
shall issue decisions to proceed with judgment execution.
4. In case of judgment execution
postponement prescribed in Clause 2, Article 26 of the Ordinance on Execution
of Civil Judgments, the judgment execution postponement request must be
notified in writing to judgment-executing bodies, clearly stating the judgment
execution postponement time limits. Written judgment execution postponement
requests must be signed by persons competent to lodge protests. Where written
requests are available but they must be promptly notified by telephone or
telegraph, the serial numbers and dates of the written requests, their contents
and signees must be notified to the judgment-executing bodies that execute such
cases.
Upon receiving judgment
execution postponement requests, within one working day, judgment-executing
bodies must issue judgment execution postponement decisions.
Where they receive judgment
execution postponement requests while the coercive judgment execution is taking
place, if deeming that the stoppage of the coercive judgment execution will
seriously affect the interests of the State, legitimate rights and interests of
the involved parties, the judgment-executing bodies shall continue taking the
coercive judgment execution measures but must immediately notify such to the
judgment execution postponement requesters and their superior
judgment-executing bodies. If the cases have been executed in part or
completely, within three working days as from the date of receiving such
written requests, the heads of the judgment-executing bodies that have
organized the execution must notify in writing the judgment execution
postponement requesters thereof.
Upon receiving competent
persons' documents stating that there are no grounds for consideration of
protests against judgments or decisions according to cassation or reopening
procedures or if past the judgment execution postponement time limit, judgments
or decisions are not protested against or judgment execution is not suspended under
the provisions of Article 27 of the Ordinance on Execution of Civil Judgments,
the heads of judgment-executing bodies shall issue decisions to proceed with
judgment execution and notify in writing the judgment execution postponement
requesters thereof.
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1. In case of judgment execution
suspension prescribed in Clause 1, Article 27 of the Ordinance on Execution of
Civil Judgments, the heads of judgment-executing bodies must issue judgment
execution suspension decisions when receiving the courts' notices on the
opening of procedures for settling bankruptcy declaration claims. The time
limit for judgment execution suspension shall be the time limit for the courts'
settlement of bankruptcy declaration claims.
Judgment-executing bodies shall
not issue judgment execution suspension decisions but continue executing
judgment execution decisions related to the obligation to provide alimonies,
pay salaries, wages, severance allowances, job-loss allowances, social insurance
premiums; pecuniary compensations for life loss or health damage prescribed at
Points a, b and c, Clause 1, Article 51 of the Ordinance on Execution of Civil
Judgments. The money sums collected from judgment execution, after being used
to pay the above-said amounts, shall be further kept by judgment-executing
bodies pending the availability of the courts' settlement results.
2. In case of judgment execution
suspension according to protest decisions issued by competent persons
prescribed in Clause 2, Article 27 of the Ordinance on Execution of Civil
Judgments, judgment-executing bodies shall issue notices on the suspension.
In case of necessity, the
request for judgment execution suspension prescribed in Clause 2, Article 27 of
the Ordinance on Execution of Civil Judgments may be notified by telephone or
telegraph to judgment-executing bodies regarding the serial numbers and dates
of the written protests, their major contents and signees. Judgment-executing
bodies must suspend the judgment execution upon receiving the notices and
within one working day after receiving such notices must issue notices on
judgment execution suspension.
Notices on judgment execution
suspension must be sent to the involved parties, the people's procuracies of
the same level and protestors.
3. The heads of
judgment-executing bodies shall issue decisions to continue judgment execution
in the following cases:
a/ There are competent persons'
decisions to withdraw the protests;
b/ The courts cease the
settlement of bankruptcy claims of enterprises or cooperatives being judgment
debtors;
c/ The courts' cassation or
reopening decisions to uphold the protested judgments or decisions.
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1. Where cassation decisions
amend or cancel the judgments or decisions which are being executed, for
re-trial according to first-instance or appellate procedures, the
judgment-executing bodies shall issue decisions to cease the execution of the
previous judgments or decisions and issue decisions to execute the judgments or
decisions which are currently legally valid.
The Justice Ministry shall
coordinate with the Supreme People's Court and the Supreme People's Procuracy
in guiding the restoration of the rights and obligations of the parties in
cases where cassation decisions amend or cancel the already executed decisions
or judgments.
2. The disclamation of
legitimate rights and interests of judgment creditors in judgments or decisions
must be expressed in writing according to law provisions. Judgment-executing
bodies shall issue decisions to cease judgment execution with regard to amounts
over which judgment creditors disclaim their rights and interests. In this
case, judgment creditors shall afterwards have no right to request the
resumption of judgment execution.
Article
17.- Handling of confiscated properties
1. For confiscated properties
being weapons, explosives, radioactive substances, military technical equipment
and means or objects belonging to historical or cultural relics,
judgment-executing bodies shall take initiative in issuing judgment execution
decisions under the provisions of Article 22 of the Ordinance on Execution of
Civil Judgments. Within 15 days after issuing judgment execution decisions,
judgment-executing bodies must carry out procedures to deliver such properties
to State bodies for management according to law provisions.
2. For confiscated properties
other than those prescribed in Clause 1 of this Article, judgment-executing
bodies shall take initiative in issuing judgment execution decisions under the
provisions of Article 22 of the Ordinance on Execution of Civil Judgments.
Within 15 days after issuing judgment execution decisions, judgment-executing
bodies must carry out procedures to deliver such properties to finance agencies
for management according to law provisions.
3. The delivery and receipt of
properties prescribed in Clause 1 and Clause 2 of this Article must be
reflected in written records, describing in detail the properties and signed by
the deliverers and recipients.
Article
18.- Judgment execution exemption and reduction for legal fees and fines
1. Judgment debtors shall be
considered having no property, income or other conditions for judgment
execution when they meet one of the conditions prescribed at Point a (excluding
the cases where judgment debtors have common properties which have not yet been
divided or properties which cannot be handled for objective reasons for
judgment execution) or Point b, Clause 2, Article 8 of this Decree.
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2. The following cases shall be
considered for judgment execution exemption:
a/ Judgment debtors meet all
conditions prescribed in Clause 1, Article 32 of the Ordinance on Execution of
Civil Judgments and Clause 1 of this Article and have to pay the remaining
judgment execution sum of VND twenty million or less;
b/ For persons sentenced to
pecuniary penalties, who had actively served part of their penalties but then
fell into such prolonged special economic plights caused by natural calamities,
fires, accidents or ailments that they are unable to pay the remaining
pecuniary penalties or recorded great exploits, the judgment execution
exemption shall comply with the provisions of Clause 2, Article 58 of the Penal
Code.
3. Judgment execution reduction
shall be considered when judgment debtors meet all conditions prescribed in
Clause 1, Article 32 of the Ordinance on Execution of Civil Judgments and
Clause 1 of this Article in the following cases:
a/ If the remaining judgment
execution sum is between over VND twenty million and VND five hundred million,
judgment execution reduction shall be considered but each reduction shall not
exceed half of the remaining judgment execution sum;
b/ If the remaining judgment
execution sum is between over VND five hundred million and VND one billion,
judgment execution reduction shall be considered but each reduction shall not
exceed one third of the remaining judgment execution sum;
c/ If the remaining judgment execution
sum is over VND one billion, judgment execution reduction shall be considered
but each reduction shall not exceed one fifth of the remaining judgment
execution sum.
4. Judgment execution exemption
and reduction shall be considered once every quarter in a year but each
judgment debtor shall be considered for exemption or reduction only once a
year.
5. Judgment-executing bodies
that are processing the cases shall compile dossiers for consideration of
judgment execution exemption or reduction, including also the cases already
transferred to commune-level People's Committees for execution supervision.
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The Justice Ministry shall
coordinate with the Supreme People's Court, the Supreme People's Procuracy, the
Public Security Ministry and the Finance Ministry in guiding judgment execution
exemption and reduction procedures.
Chapter III
COERCIVE MEASURES
Article
19.- Principles for application of coercive judgment execution measures
1. Executors may only apply
coercive measures prescribed in Article 37 of the Ordinance on Execution of
Civil Judgments.
2. Coercive judgment execution
measures shall be applied only after the expiry of the time limit for voluntary
judgment execution, except for the cases where coercive measures need to be
immediately applied as prescribed in Clause 2, Article 7 of the Ordinance on
Execution of Civil Judgments.
Coercive execution shall not be
allowed during the time prescribed in Clause 3, Article 7 of the Ordinance on
Execution of Civil Judgments; fifteen days before and after the Lunar New Year
Day; and traditional days for policy beneficiaries who are judgment debtors,
and other cases prescribed by the Justice Minister.
3. The applied coercive measures
must correspond to the obligations of judgment debtors.
4. Executors shall base
themselves on the contents of judgments or decisions; nature and extent of
judgment execution obligations; conditions of judgment debtors; the involved
parties' proposals as well as the practical situation of localities to apply
appropriate coercive judgment execution measures.
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1. Judgment debtors' other
lawful incomes other than salaries, retirement allowances or working
capacity-loss allowances prescribed in Clause 1, Article 40 of the Ordinance on
Execution of Civil Judgments, are incomes of employees or workers in economic
organizations; incomes of cooperative members; bonuses and other lawful incomes
which they receive from organizations or individuals that are managing such
incomes.
The minimum subsistence levels
for judgment debtors and persons whom judgment debtors are obliged to provide
alimonies for or to nurture shall be determined on the basis of the practical
conditions of each locality where they live.
2. The coercive measure to
subtract incomes prescribed in Article 40 of the Ordinance on Execution of
Civil Judgments shall be also applied to the case where judgment debtors have
no other property for judgment execution.
Article
21.- Distraint, hand-over of properties
1. Before issuing property
distraint decisions, executors shall request the property ownership and use
right registration agencies to supply information on the judgment debtors'
property ownership and use rights; request the security transaction
registration agencies to supply information on whether or not the to
be-distrained properties are being used as security for the performance of the
judgment debtors' obligations or whether or not the properties the judgment
debtors are managing or using are financial hire-purchase properties. Within
five working days, the above-said agencies must reply in writing to executors
regarding these requests.
2. When distraining properties,
executors must provisionally calculate the values of to be-distrained properties
for distraint corresponding to judgment execution obligations and pay judgment
execution expenses. For the provisional calculation of the values of distrained
properties, executors shall base themselves on market prices and may, at the
same time, consult functional agencies and the involved parties.
3. In case of distraining locked
dwelling houses or packed things, executors shall request judgment debtors or
persons who are using or managing such properties to unlock or unpack them; if
judgment debtors or persons who are using or managing the properties refuse to
abide by or are deliberately absent, executors shall make records (with at
least two witnesses and with the participation of representatives of
commune-level People's Committees and people's procuracies of the same level)
on unlocking or unpacking such properties for examination, specifically
enumerating all properties, then distrain them according to law provisions.
Where judgment debtors, judgment
creditors or persons with related rights and obligations are serving
imprisonment sentences, executors shall notify them of judgment execution
decisions and notices through prison superintendents. The imprisoned persons
may authorize other persons to exercise their rights or perform their obligations
related to judgment execution according to law provisions.
4. When detecting that third
persons are keeping judgment debtors' properties, executors shall request such
persons to hand such properties to judgment-executing bodies for judgment
execution. If third persons fail to voluntarily abide by judgment-executing
bodies' requests, executors shall issue decisions to coercively distrain such
properties for judgment execution.
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When distraining properties over
which there are disputes which have not yet been brought by the involved
parties to court for settlement, executors shall guide the involved parties to
initiate lawsuits to protect their interests. Past ninety days, counting from
the date they are guided, if the involved parties fail to initiate lawsuits,
executors shall continue handling such properties for judgment execution
(except for the cases the involved parties cannot initiate lawsuits within the
prescribed time limit due to objective obstacles prescribed in Article 2,
Article 7 of this Decree).
5. Where distrained properties
are subject to ownership or use right registration or security transaction
registration, when issuing decisions to distrain such properties, executors
must immediately notify the property distraint to the following agencies:
a/ Land use right registration
offices, agencies with competence to register assets attached to land, for the
case of distraint of land use right, assets attached to land;
b/ Vietnam Aviation
Administration, for the case of distraint of aircraft;
c/ Regional sea-going ship and
crew registration agencies, for the case of distraint of sea-going ships;
d/ The Road Traffic Police
Department; Road Traffic Police Sections, for the case of distraint of road
motorized traffic means;
e/ Registration agencies under
the National Security Transaction Department of the Justice Ministry, for the
case of distraint of properties other than those prescribed at Points a, b and
c of this Clause, except for distrained properties which are of small value or
have been assigned to individuals or organizations that have conditions for
preservation or are preserved in judgment-executing bodies' storehouses.
f/ Other agencies with
competence to register ownership and use rights according to law provisions.
6. As from the time of receiving
notices on distraint of properties, property ownership and use right
registration agencies shall not register the transfer of such properties,
unless otherwise prescribed by law.
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Within three working days as
from the date of release of distrained properties or completion of the sale or
hand-over of distrained properties for judgment execution, judgment-executing
bodies must notify such to the property ownership and use right registration
agencies or security transaction registration agencies prescribed in Clause 5
of this Article.
7. The coercive hand-over of
houses or transfer of land use rights prescribed in Article 54 of the Ordinance
on Execution of Civil Judgments shall also apply to the case of division of
common properties.
Article
22.- Properties not to be distrained
1. Where judgment debtors are
individuals, judgment-executing bodies shall not distrain the following
properties for judgment execution:
a/ Food quantities for essential
needs of judgment debtors and their families during the time they have no
incomes or new harvested products; medicine quantities for disease prevention
and treatment needs of judgment debtors and their families;
b/ Necessary ordinary labor
tools used as main or sole living means of judgment debtors and their families,
such as plows, rakes, hoes, shovels, pack-bicycles, cyclos, and tools of small
value;
Valuable labor tools like motorcycles,
automobiles, vessels, plowing machines, grinding machines and other valuable
tools shall be still distrained by executors for sale for judgment execution
and part of the proceeds therefrom shall be left for judgment debtors to buy
substitute labor tools of lower value;
c/ Necessary clothes and
ordinary personal belongings of judgment debtors and their families according
to the minimum standards of each locality, such as cooking pots, bowls and
plates, furniture, and other ordinary articles of small value. Such daily-life
items or personal belongings as television sets, refrigerators,
air-conditioners, washing machines, computers, gold rings, beds, wardrobes and
valuable articles shall still be distrained by judgment-executing bodies for
ensuring judgment execution;
d/ Ordinary worshiping objects
according to local practices.
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a/ Medicines, means, tools and
assets of health, medical examination and treatment establish-ments, except for
those which are circulated for business purposes; food, foodstuffs, tools and
properties in service of mid-shift meals of laborers;
b/ Nurseries, school buildings,
equipment, means and articles belonging to these establishments, if they are
not circulated by enterprises for business purposes;
c/ Equipment, means and tools to
ensure labor safety, fire prevention and fighting, environmental pollution
prevention and control;
d/ Important infrastructure in
service of public interests, security and defense;
e/ Materials and raw materials,
finished and semi-finished products being hazardous and dangerous chemicals or
properties banned from circulation;
f/ Volumes of materials, raw
materials and semi-finished products currently lying in closed production
chains;
g/ Other special cases
prescribed by the Justice Minister after consulting the Finance Minister.
3. For State agencies, political
organizations, socio-political organizations, socio-professional organizations
(called collectively agencies, organizations) operating with State budget
capital, judgment-executing bodies shall not distrain properties directly
allocated from the State budget but request such agencies, organizations to
propose in writing competent agencies to provide financial supports for
judgment execution according to the provisions of Article 33 of the Ordinance
on Execution of Civil Judgments and Article 4 of this Decree.
Where agencies, organizations
have revenues from other lawful activities, judgment-executing bodies shall
distrain properties originated from such revenues for judgment execution,
excluding the following properties:
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b/ Nurseries, school buildings,
equipment, means and articles belonging to these establishments, if they are
not circulated by agencies or organizations for business purposes;
c/ Equipment, means and tools to
ensure labor safety, fire prevention and fighting, environmental pollution
prevention and control;
d/ Office buildings.
Article
23.- Valuation of properties
1. After the distraint, if the
involved parties can reach agreement on the value of distrained properties, executors
shall make written records clearly stating such agreement and containing the
signatures of the involved parties.
The time limit for the involved
parties to reach agreement on the value of properties is five days as from the
date such properties are distrained. For fresh and raw, perishable properties,
when distraining them, the involved parties must immediately reach agreement on
their value.
2. Executors shall set up
valuation councils with the composition prescribed in Clause 2, Article 43 of
the Ordinance on Execution of Civil Judgments and the executors as their heads
in order to value the distrained properties when the involved parties fail to
reach agreement on their value or when the participation of experts is required
for the property valuation. In case of necessity, executors may hire or solicit
expertise of the properties' values. When requested by executors, professional
agencies must appoint their professional staff to take part in the valuation.
Professional agencies'
representatives in the valuation councils are persons who have professional or
technical qualifications relevant to the to be-valued properties and are
professionally managed by competent agencies. If the to be-valued properties
are dwelling houses, the valuation councils must have members who are
representatives of house and land management agencies and construction
management agencies.
The property valuation councils
shall base themselves on the market prices at the time of valuation and the
professional opinions of property-expertising agencies or organizations to
value properties. They shall decide on the value of properties by majority;
where divergent opinions on the value of properties are equal in numbers, the
side sharing the opinion of the council's head shall be the basis for
determining the reserve prices for selling the properties. Members of the
valuation councils may reserve their opinions and propose the heads of
judgment-executing bodies to re-consider the valuation.
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3. The settlement of complaints
about property valuation shall comply with the provisions of the Ordinance on
Execution of Civil Judgments regarding the settlement of complaints about
judgment execution.
Article
24.- Re-valuation of properties
The re-valuation of properties
prescribed at Point a and Point b, Clause 5, Article 43 of the Ordinance on
Execution of Civil Judgments shall be conducted as follows:
1. The property valuation shall
be considered having breached procedures in one of the following cases:
a/ The valuation council is not
properly composed according to regulations;
b/ The involved parties are not
properly notified to take part in the property valuation;
c/ Regulations on property
prices are wrongly applied to properties having their prices uniformly managed
by the State;
d/ Serious errors are committed
in the classification or determination of the value percentages of properties;
e/ Other cases prescribed by
law.
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a/ The property prices see
fluctuations of 20% or more, for properties valued at under VND 100 million;
b/ The property prices see
fluctuations of 10% or more, for properties valued at between VND 100 million
and under VND one billion;
c/ The property prices see
fluctuations of 5% or more, for properties valued at VND one billion or more.
3. The involved parties may
propose judgment-executing bodies to re-consider the prices when there are
price fluctuations before the notices on property auctions are made public.
Judgment-executing bodies shall base themselves on the market prices and prices
supplied by price management agencies to determine whether or not there are
price fluctuations and decide on the re-valuation.
Article
25.- Preservation of properties for judgment execution
1. Judgment-executing bodies
shall preserve properties for judgment execution according to judgments or
decisions. Where judgments or decisions do not identify persons responsible for
preserving the properties, the property preservation shall be as follows:
a/ Distrained properties shall
be assigned to judgment debtors, owners or their relatives for preservation;
b/ If distrained properties are
not being preserved by judgment debtors or owners, they shall be assigned to
persons who are using or managing them for preservation;
c/ If judgment debtors, persons
who are using or managing properties, or judgment debtors' relatives refuse to
preserve the distrained properties or they allegedly show signs of dispersing
or destroying such properties or obstructing the judgment execution, the
distrained properties shall, on a case-by-case basis, be assigned to
individuals or organizations with preservation conditions or be preserved at
the judgment-executing bodies' storehouses.
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a/ Where they are subject to
confiscation into public funds but not handled yet, executors shall deposit
them in State treasuries of the same level according to general regulations;
b/ Where they are distrained to
secure the performance of financial obligations, executors must complete
procedures to deposit these properties at banks.
Article
26.- Sale of distrained properties
1. For types of distrained
properties prescribed in Clause 1, Article 47 of the Ordinance on Execution of Civil
Judgments, within ten working days as from the date of valuation,
judgment-executing bodies must carry out procedures to sign contracts with
auction organizations to authorize them to sell such properties.
For localities where auction
organizations have not yet been established or for difficult-to-access, distant
places, the heads of judgment-executing bodies shall consider and decide that
their judgment execution bodies shall auction properties for judgment execution
and take responsibility for such decisions.
The procedures for auction of
distrained properties shall comply with the Government's regulations on
property auction.
2. For properties valued at VND
five hundred thousand or less or perishable properties prescribed in Clause 2,
Article 47 of the Ordinance on Execution of Civil Judgments, executors shall
organize the sale thereof in the presence of witnesses without having to go
through auction procedures.
For fresh and raw, perishable
properties, if nobody offer higher prices, executors shall sell them at the
pre-determined prices or prices agreed upon by the involved parties. If such
properties are unsalable, to prevent them from perishing, executors may sell
them at prices lower than the prices already agreed upon by the involved
parties or the pre-determined prices. If such properties cannot be sold though,
executors shall return them to judgment debtors. If judgment debtors refuse to
receive while such properties go bad and become valueless, executors shall
organize the destruction thereof as prescribed in Article 36 of the Ordinance
on Execution of Civil Judgments.
3. The following persons must
not participate in buying properties on sale for judgment execution:
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b/ Other cases prescribed by
law.
4. The settlement of complaints
about, and denunciations against, the auction of properties by auction
organizations shall comply with the Government's regulations on property
auction.
The settlement of complaints
about, and denunciations against, the auction of properties by
judgment-executing bodies shall comply with the provisions of the Ordinance on
Execution of Civil Judgments regarding the settlement of complaints about, and
denunciations against, judgment execution.
Article
27.- Order of payment of judgment execution money
1. The payment of judgment
execution money prescribed in Article 51 of the Ordinance on Execution of Civil
Judgments shall be made on the following principles:
a/ Judgment execution money
collected under coercive judgment execution decisions shall be paid to judgment
creditors that have filed written requests by the time such coercive judgment
execution decisions are issued. If there are many judgment creditors, the
priority order of payment to them shall follow the payment order prescribed in
Article 51 of the Ordinance on Execution of Civil Judgments. If there are many
judgment creditors in the same priority order, the collected judgment execution
money shall be paid to these creditors in proportion to the money sums they are
entitled to from judgment execution;
b/ The remaining sum (if any)
shall be paid to judgment creditors under other judgment execution decisions
issued by the time of payment in the priority order prescribed in Article 51 of
the Ordinance on Execution of Civil Judgments.
2. Where a judgment involves
many judgment creditors but only some of them file written judgment execution
requests and the judgment debtors' properties are insufficient for performing
their property obligations under such judgment, when handling the proceeds from
the property sale, the judgment-executing body shall temporarily deduct and
deposit at a bank part of such proceeds which is in proportion to the amount
which judgment creditors who have not made written judgment execution requests
shall receive. The judgment-executing body shall issue a notice fixing a time
limit of no more than one month for such judgment creditors to exercise their
right to file their written judgment execution requests. Past this notified
time limit, if the judgment-executing body does not receive any new written
judgment execution requests, the remaining money, which is temporarily
deposited in a bank, shall be further paid to those who have filed written
judgment execution requests according to the provisions of Point a, Clause 1 of
this Article.
3. The proceeds from the sale of
properties which have been declared by courts to be distrained for securing the
performance of a given obligation shall be prioritized to be paid for such
obligation.
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1. Judgment debtors must bear
coercive judgment execution expenses, including:
a/ Property distraint expenses:
remunerations for coercion council members; expenses for coercion protection;
expenses for fire and explosion prevention (if any); expenses for partition
construction, except for cases where judgments or decisions clearly state that
judgment creditors must bear part or whole of partition construction expenses;
b/ Expenses for property
valuation and re-valuation, except for the cases prescribed at Point a of
Clause 2 and Clause 3 of this Article; expenses for property auction;
remunerations for valuation council members, expenses for property re-valuation
(if judgment debtors request re-valuation); rents of venues and means for
holding auctions (if any); auction charges as prescribed (for cases where
executors authorize auction organizations to sell properties);
c/ Expenses for hiring of
property look-out and preservation; expenses for property loading, unloading
and transport;
d/ Expenses for coercion
notification;
Remuneration levels for persons
personally involved in coercion shall comply with the Prime Minister's
regulations. Other expenses shall be actual, reasonable expenses approved by
the heads of judgment-executing bodies at the proposals of executors. Coercion
expenses must be notified to the involved parties.
Coercive judgment execution
expenses shall be paid by judgment debtors or deducted from the proceeds from
the auction of distrained properties or from judgment debtors' properties which
are being kept, leased, borrowed or repaired by other persons.
2. Judgment creditors must bear
coercive judgment execution expenses, including:
a/ Property re-valuation
expenses (if judgment creditors request property re-valuation, except for cases
of re-valuation prescribed at Point a, Point c, Clause 5, Article 43 of the
Ordinance on Execution of Civil Judgments);
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3. The State budget shall cover
coercive judgment execution expenses in the case of property re-valuation
prescribed at Point a, Clause 5, Article 43 of the Ordinance on Execution of
Civil Judgments; where the involved parties are entitled to exemption from, or
reduction of, coercive judgment execution expenses prescribed in Clause 5 of
this Article and other necessary expenses (if any).
Persons at fault in the
violations of property valuation procedures, the illegal decisions on the exemption
from, or reduction of, coercive judgment execution expenses, resulting in the
State budget's incurrence of coercion expenses shall have to indemnify such
expenses to the State budget.
4. Before organizing the
coercive judgment execution, executors must make and submit to the heads of
judgment-executing bodies for approval coercion plans with the following
contents: coercion time, forces and plans; estimated coercion expenses. On the
basis of the approved coercion plans, executors shall carry out procedures to
advance funds for coercive activities. When handling properties or collecting
money from judgment debtors, executors must carry out procedures to immediately
refund advanced amounts.
Coercion expense estimates shall
be notified to the involved parties before the coercion takes place.
5. Where the involved parties
fall into the subjects prescribed at Point a, Clause 1, Article 30 of this
Decree, the may make petitions (certified by the commune-level People's
Committees of the places where they reside) to the heads of judgment-executing
bodies for consideration of exemption from, or reduction of, coercive judgment
execution expenses.
Chapter IV
JUDGMENT EXECUTION FEES
Article
29.- Fee payers; judgment execution fee-collecting agencies; fee rates;
collection, remittance, management and use of judgment execution fees
1. Judgment creditors prescribed
in Article 20 of the Ordinance on Execution of Civil Judgments must pay
judgment execution fees for judgment execution amounts, which are calculated
according to the value of properties or money sums they actually receive,
except for the execution of the following amounts:
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b/ Compensations for life loss,
health deterioration, honor and dignity damage;
c/ Salaries, wages;
d/ Job-loss allowances,
severance allowances; social insurance premiums; compensations for damage
caused by dismissal or labor contract termination;
e/ Other cases prescribed by
law.
2. Judgment-executing bodies
that organize the execution of cases shall collect judgment execution fees.
3. Fee rates, fee collection,
remittance, management and use, exemption and reduction shall be specifically
guided by the Finance Ministry and the Justice Ministry.
Article
30.- Judgment execution fee exemption and reduction
1. In the following cases,
judgment creditors may be considered for judgment execution fee exemption or
reduction:
a/ Meeting with economic
difficulties;
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c/ Belonging to families short
of manpower, suffering from disabilities or prolonged ailments.
2. To be considered for judgment
execution fee exemption or reduction, the involved parties must make written
requests, certified by the commune-level People's Committees of the places
where they reside or live or by the heads of the agencies or organizations
where they are working.
Written requests for judgment
execution fee exemption or reduction shall be submitted to the
judgment-executing bodies that collect judgment execution fees. The heads of
the judgment-executing bodies that receive written requests shall consider and
decide on the judgment execution fee exemption or reduction.
Article
31.- Complaints about judgment execution fees
All complaints about the
collection of judgment execution fees shall be settled according to the
provisions of the Ordinance on Execution of Civil Judgments regarding the
settlement of complaints about judgment execution.
Chapter V
HANDLING OF
ADMINISTRATIVE VIOLATIONS
Article
32.- Acts of administrative violation and sanctioning levels
1. Caution or a fine of between
VND 50,000 and 100,000 for one of the following acts committed by judgment
debtors:
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b/ Having received the second
notices or summonses but still failing to come to the places indicated in such
notices or summonses to execute the judgments without plausible reasons.
2. A fine of between VND 100,000
and 200,000 for one of the following acts committed by judgment debtors:
a/ Deliberately refuse to
execute temporary urgent decisions issued by courts or judgments or decisions
which must be promptly executed;
b/ Failing to perform the work
which must be performed or failing to stop performing the work which must not
be performed under court judgments or decisions;
c/ Having conditions for
judgment execution but delaying the performance of judgment-executing
obligations;
d/ Dispersing or damaging
properties in order not to perform judgment- executing obligations or shirking
the distraint of properties for judgment execution;
e/ Failing to comply with the
executors' requests to hand over papers related to properties handled for
judgment execution without plausible reasons.
3. A fine of between VND 200,000
and 500,000 for one of the acts of illegally using, transferring, swapping,
hiding or changing the conditions of, distrained properties, which are not
serious enough to be examined for penal liability.
4. A fine of between VND 500,000
and 1,000,000 for one of the following acts:
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b/ Breaking seals or sabotaging
distrained properties, which are not serious enough to be examined for penal
liability;
c/ Failing to comply with the
executors' decisions to deduct account deposits, subtract incomes or withdraw
valuable papers of judgment debtors.
Article
33.- Competence to sanction violations
1. Executors on duty shall have
the right to serve cautions and impose fines of up to VND 200,000 for
administrative violation acts prescribed in Article 32 of this Decree.
2. The heads of district-level
judgment-executing bodies shall have the right to serve cautions and impose
fines of up to VND 500,000 for administrative violation acts prescribed in
Article 32 of this Decree.
3. The heads of provincial-level
judgment-executing bodies, the heads of military zone-level judgment-executing
bodies shall have the right to serve cautions and impose fines of up to VND
1,000,000 for administrative violation acts prescribed in Article 32 of this
Decree.
4. The presidents of
commune-level People's Committees shall have the right to serve cautions and
impose fines of up to VND 100,000 for administrative violation acts prescribed
in Clause 1, Article 32 of this Decree.
Article
34.- Procedures for sanctioning violations and settlement of complaints
about, and denunciations against, the sanctioning of administrative violations
1. The sanctioning principles,
statute of limitations for sanctioning, aggravating and extenuating
circumstances, sanctioning order and procedures shall comply with the
provisions of the 2002 Ordinance on Handling of Administrative Violations and
relevant legal documents.
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Chapter VI
IMPLEMENTATION PROVISIONS
Article
35.- Implementation effect
This Decree takes effect 15 days
after its publication in the Official Gazette and replaces the Government's
Decree No. 69/CP of October 18, 1993 prescribing civil judgment execution
procedures.
Article
36.- Implementation responsibility
The ministers, the heads of the
ministerial-level agencies, the heads of the Government-attached agencies, and
the presidents of the provincial/municipal People's Committees shall have to
implement this Decree.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Phan Van Khai