Circular No. 01/2017/TT-BTP on the management of evidence storage, temporarily detained assets in civil enforcement proceedings

CIRCULAR

Management of Evidence Warehouses and Property Held Pending Execution of Civil Judgments

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Pursuant to the Law on Legislative Regulatory Documents 2015;

Pursuant to the Civil Enforcement Law No. 26/2008/QH12 dated November 14, 2008; the Law Amending and Supplementing Certain Provisions of the Civil Enforcement Law No. 64/2014/QH13 dated November 25, 2014;

On the basis of Decree No. 18/2002/NĐ-CP dated February 18, 2002 of the Government promulgating the Regulation on Management of Evidence Warehouses; Decree 70/2013/NĐ-CP dated July 2, 2013 of the Government amending and supplementing certain provisions of the Regulation on Management of Evidence Warehouses issued together with Decree No. 18/2002/NĐ-CP dated February 18, 2002 of the Government;

Pursuant to Decree No. 62/2015/NĐ-CP dated July 18, 2015 of the Government detailing and guiding the implementation of certain articles of the Civil Enforcement Law;

Pursuant to Decree No. 22/2013/NĐ-CP dated March 13, 2013, of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

At the proposal of the Director of the Civil Enforcement General Department;

The Minister of Justice issues this Circular on the management and handling of evidence warehouses and property held pending execution of civil judgments as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates principles for managing and handling evidence and property held pending execution of civil judgments; evidence warehouses, internal regulations of evidence warehouses and property held pending execution; responsibilities of Heads of civil enforcement agencies, Enforcement Officers, Accountants, Custodians of evidence warehouses, Security Guards of evidence warehouses, and other related individuals in managing and handling evidence and property held pending execution of civil judgments; receiving and handling evidence and property held pending execution in certain special cases.

Article 2. Applicability

This Circular applies to civil enforcement management agencies, civil enforcement agencies, persons engaged in civil enforcement work, and organizations and individuals related to the preservation and handling of evidence and property held pending execution of civil judgments.

Article 3. Principles for Managing and Handling Evidence and Property Held Pending Execution

1. Evidence and property held pending execution of civil judgments transferred by competent authorities according to the law or seized and temporarily held by civil enforcement agencies pursuant to Point c Clause 1 Article 58, Article 68 and Clause 1 Article 115 of the Civil Enforcement Law must be stored in the evidence warehouse of the civil enforcement agency (hereinafter referred to as the evidence warehouse).

For evidence and property held pending execution that cannot be transported or moved to be stored in the evidence warehouse of the civil enforcement agency, the Head of the civil enforcement agency shall enter into a contract for custody and storage in accordance with the law.

2. Evidence and property held pending execution of civil judgments must be safely preserved and handled promptly in accordance with the law. Any acts of infringement, destruction, tampering with seals, illegal use, transfer, addition, subtraction, substitution, concealment, destruction, and other acts causing damage or alteration of the condition of evidence and property held pending execution of civil judgments will be dealt with according to the law.

3. The evidence warehouse of the civil enforcement agency shall not be used for other purposes.

4. Only persons authorized by law may enter and exit the evidence warehouse.

Chapter II

MANAGEMENT AND HANDLING OF EVIDENCE AND PROPERTY HELD PENDING EXECUTION IN

CIVIL ENFORCEMENT

Article 4. Evidence Warehouse

1. The evidence warehouse must meet requirements regarding scale and standards as prescribed by the Minister of Justice; it must have all necessary equipment to preserve evidence and property; it must ensure security, safety, environmental hygiene, and other requirements for preserving evidence and property.

2. In cases where there is no evidence warehouse or the quantity of evidence and property held pending execution is too large for the warehouse to accommodate, the civil enforcement agency may rent a warehouse for storage.

The rented warehouse must meet the equipment, security, and safety requirements set out in Clause 1 of this Article; the preservation and handling of evidence and property held pending execution in the rented warehouse shall be carried out similarly to those in the evidence warehouse of the civil enforcement agency.

3. Based on the actual conditions of each unit, the Head of the civil enforcement agency shall arrange rooms or areas for the Custodian of the evidence warehouse and the Security Guard of the evidence warehouse. If the evidence warehouse is located within the premises of the civil enforcement agency, the Security Guard of the agency shall be responsible for protecting the evidence warehouse.

Article 5. Rules for Evidence Storage Warehouses

1. Evidence storage warehouses of civil enforcement agencies (including leased warehouses) must have rules.

2. The head of the civil enforcement agency shall issue and organize the implementation of the rules for the evidence storage warehouse of their agency.

3. The rules for evidence storage warehouses must include the following contents:

a) Provisions on the time and subjects entering and exiting the evidence storage warehouse;

b) Provisions on ensuring security and safety of evidence and temporarily detained assets;

c) Provisions on fire prevention, explosion prevention, and environmental protection;

d) Provisions on the responsibilities of related organizations and individuals;

đ) Other contents as prescribed by law.

Article 6. Responsibilities of the Head of Civil Enforcement Agency in Handing Over, Storing, and Disposing of Evidence and Temporarily Detained Assets

1. Propose the construction, renovation, and repair of evidence storage warehouses; implement the leasing of evidence storage warehouses to ensure scale and area as prescribed; set standards and usage quotas for the Warehouse Manager and Security Guard of the evidence storage warehouse.

2. Direct and organize the handing over, storing, and disposal of evidence and temporarily detained assets in accordance with the prescribed legal procedures.

3. Direct and organize inspections, inventory checks, and reports on the storage of evidence and temporarily detained assets as stipulated in Article 12 of Circular No. 01/2016/TT-BTP dated February 1, 2016 of the Ministry of Justice guiding the implementation of certain administrative management procedures and business forms in civil enforcement (hereinafter referred to as Circular No. 01/2016/TT-BTP).

4. Reward or propose rewards to competent authorities for organizations and individuals with outstanding achievements; examine and handle according to authority violations in the handing over, storing, and disposal of evidence and temporarily detained assets as prescribed by law.

5. Direct and coordinate with relevant agencies in disposing of surplus evidence and temporarily detained assets.

6. The head of the civil enforcement agency where the cluster of evidence storage warehouses is constructed shall be responsible for ensuring security, safety, and environmental hygiene around the cluster area; issue regulations on cooperation in protecting the cluster of evidence storage warehouses (if deemed necessary).

Article 7. Responsibilities of Enforcement Officers

1. Propose and issue orders for warehousing to the head of the civil enforcement agency or persons authorized by the head of the civil enforcement agency to warehouse evidence and temporarily detained assets from seized property to be preserved in accordance with the provisions of point c, Clause 1, Article 58 and Clause 1, Article 115 of the Civil Enforcement Law.

2. Issue requests and orders for unloading evidence and temporarily detained assets to the head of the civil enforcement agency or persons authorized by the head of the civil enforcement agency to dispose of evidence and temporarily detained assets as prescribed.

3. Coordinate with Business Accountants, Warehouse Managers, and Security Guards in the handing over, storing, inspecting, inventory checking, and disposal of evidence and temporarily detained assets to ensure security, safety, and environmental hygiene.

Article 8. Responsibilities of Business Accountants in Civil Enforcement in Receiving, Storing, and Disposing of Evidence and Temporarily Detained Assets

1. Collect and process information and data; monitor and supervise the management of evidence and temporarily detained assets in accordance with the guidelines of the Ministry of Finance on business accounting in civil enforcement.

2. Prepare documents regarding the handing over, and disposal of evidence and temporarily detained assets.

3. Regularly monthly, quarterly, and annually coordinate with the Warehouse Manager to conduct reconciliation, inventory checks, and evaluations of the situation and results of storing and disposing of evidence and temporarily detained assets.

Article 9. Custodian of Evidence Storage

1. Based on the staffing assigned, the scale of the storage facility, the situation, and the quantity of evidence and temporarily detained assets that must be kept in the evidence storage, the head of the civil enforcement agency shall arrange for the custodian of evidence storage.

Depending on actual conditions, the head of the civil enforcement agency shall arrange for a dedicated custodian of evidence storage or a part-time custodian of evidence storage. A dedicated custodian of evidence storage, recruited to the appropriate position, shall be trained and further educated in the management, preservation, and handling of evidence and temporarily detained assets. A part-time custodian of evidence storage must be trained and further educated in the management, preservation, and handling of evidence and temporarily detained assets.

2. The custodian of evidence storage shall have the responsibility to:

a) Carry out the entry and exit procedures and the preservation of evidence and temporarily detained assets according to the laws on civil enforcement;

b) Prepare the request for entry into storage, exit from storage; the order for entry into storage, exit from storage; the handover record of evidence and temporarily detained assets when the competent authority transfers them or requires their extraction for procedural activities for the head of the civil enforcement agency or the person authorized by the head of the civil enforcement agency to examine and decide on the entry into storage, exit from storage;

c) Coordinate with the Enforcement Officer and accountant to check other necessary procedures and documents of the person handing over, including information such as the type, quantity, weight, characteristics of the evidence and temporarily detained assets to be entered into storage; the reason and time of entry into storage; name and position of the person handing over; signature of the head and stamp of the agency handling the case; identification documents of the person handing over the evidence and temporarily detained assets;

d) Accept and determine the condition and characteristics of the evidence and temporarily detained assets, the sealing status (if any) upon acceptance and entry into storage according to regulations. The inspection of the current state of the evidence and temporarily detained assets must be compared with the initial seizure record;

e) Exit the storage of evidence and temporarily detained assets for disposal according to the regulations of the law ensuring compliance with the list prepared by the Enforcement Officer and the order for exit from storage issued by the head of the civil enforcement agency or the person authorized by the head of the civil enforcement agency;

f) Implement the labeling of evidence and temporarily detained assets; clearly indicate the name of the case; the agency, unit, individual transferring the evidence and temporarily detained assets; arrange and place in separate storage positions to avoid confusion;

g) Establish a storage card for each piece of evidence and temporarily detained asset; record and update the situation in the storage book tracking evidence and temporarily detained assets;

h) Report promptly to the head of the agency when discovering the loss, damage, shortage, change in the sealing status of the evidence and temporarily detained assets and perform tasks when required by the competent authority;

i) Coordinate with the Enforcement Officer and accountant to conduct inventory checks of evidence and temporarily detained assets; ensure the safety and stability of shelves, racks, equipment used for storing and preserving evidence and temporarily detained assets, preventing breakage, collapse, and loss of safety.

Article 10. Protection of Evidence Storage

1. The protection of evidence storage is a person hired to work at the local civil enforcement agency under a contract system, responsible for protecting, guarding, ensuring security, order, and safety of the evidence storage.

2. The protection of evidence storage shall cooperate with the custodian of evidence storage in conducting inventories and reporting to the head of the civil enforcement agency about the loss or damage of evidence; bear legal responsibility and responsibility before the head of the unit regarding the security and safety of the evidence storage area.

3. Specific duties and powers of the protection of evidence storage shall be stipulated by the head of the civil enforcement agency where the protection of evidence storage works.

Article 11. Acceptance of evidence items and temporarily detained assets in certain special cases

1. For evidence items and temporarily detained assets that cannot be moved to the evidence storage warehouse as specified in point a, Clause 1, Article 8 of the Regulation on Management of Evidence Storage Warehouses issued together with Decree No. 18/2002/NĐ-CP and Decree No. 70/2013/NĐ-CP, the civil enforcement agency shall accept the transfer from the investigation agency at the location where the evidence items and temporarily detained assets are being kept, and request the investigation agency to transfer all related documents concerning the custody of the evidence items and temporarily detained assets.

The civil enforcement agency shall continue to hand over the evidence items and temporarily detained assets to the owner, lawful manager of the evidence items and temporarily detained assets, their relatives, or local authorities, agencies, organizations where the evidence items and temporarily detained assets are located for safekeeping and preservation. If the individuals or organizations mentioned above do not continue to accept the safekeeping and preservation of the evidence items and temporarily detained assets, the head of the civil enforcement agency shall hire other organizations or individuals to undertake such tasks.

2. For evidence items that must be preserved at specialized agencies as specified in point d, Clause 1, Article 8 of the Regulation on Management of Evidence Storage Warehouses issued together with Decree No. 18/2002/NĐ-CP and Decree No. 70/2013/NĐ-CP, the civil enforcement agency shall request the investigation agency to transfer the handover record of the evidence items from the investigation agency to the specialized agency and related documents so that the civil enforcement agency can monitor and issue decisions to handle the evidence items according to court judgments and decisions.

3. For evidence items and temporarily detained assets as specified in point b and point c, Clause 1, Article 8 of the Regulation on Management of Evidence Storage Warehouses issued together with Decree No. 18/2002/NĐ-CP and Decree No. 70/2013/NĐ-CP, when the court transfers judgments and decisions, the civil enforcement agency shall require the agency currently keeping the evidence items and temporarily detained assets to transfer them to the civil enforcement agency (including related documents concerning the evidence items and temporarily detained assets).

Article 12. Preservation, inventory of evidence items and temporarily detained assets; extraction of evidence items

1. The preservation, inventory of evidence items and temporarily detained assets; extraction of evidence items shall be carried out in accordance with Article 12 of Circular No. 01/2016/TT-BTP. Evidence items and temporarily detained assets that are prone to deterioration or may be extracted, or belong to cases with court judgments and decisions, must be stored and arranged in convenient locations for easy handling.

2. For evidence items and temporarily detained assets handed over to the owner, lawful manager, or their relatives, or local authorities, organizations, or other individuals for safekeeping according to regulations, the civil enforcement agency shall be responsible for inspecting the safekeeping of evidence items and temporarily detained assets monthly. The inspection of evidence items and temporarily detained assets must be recorded in a protocol specifying the time, date, month, and year of the inspection; the name, quantity, and condition of each type of evidence item and temporarily detained asset, with signatures of the accountant, warehouse custodian, and head of the civil enforcement agency, and the person entrusted with safekeeping.

In cases where it is found that the safekeeping of evidence items and temporarily detained assets does not ensure safety, measures must be taken to require the organization or individual entrusted (or hired) with safekeeping to rectify the situation and ensure safety, or consider entrusting (or hiring) another organization or individual to undertake safekeeping.

Article 13. Handling of Evidence Items and Temporarily Held Assets in Certain Special Cases

1. For evidence items that are toxic substances, dangerous chemicals, large quantities of narcotics, or other special types of evidence items that must be destroyed, if it is determined that destruction may lead to safety risks and environmental impacts, the civil enforcement agency must develop a plan (including disposal costs) and coordinate with relevant specialized agencies to hire organizations or businesses providing services for destruction in accordance with regulations.

In cases where multiple organizations or businesses provide such services, a bidding process can be organized to select the appropriate service provider.

2. For evidence items and temporarily held assets that have been stored for one year or more without being processed (excluding cases where evidence items and temporarily held assets are required to be preserved according to the decision of the competent investigative authority), the civil enforcement agency shall coordinate with the police, court, prosecution office, and other relevant agencies to determine the status, compile a list of unprocessed evidence items and temporarily held assets, and proceed with their handling as follows:

a) For evidence items and temporarily held assets in cases where the investigation has been suspended, the civil enforcement agency shall request the authority that issued the suspension decision to issue a decision on the handling of the evidence items and temporarily held assets for processing in accordance with regulations.

b) For evidence items and temporarily held assets where the court has not transferred the judgment or decision; the prosecution office and investigative agency have not transferred related materials concerning the evidence items and temporarily held assets, the civil enforcement agency shall request the relevant authorities to transfer these materials for processing in accordance with regulations.

c) In cases where there is no decision from the competent authority regarding the handling of evidence items and temporarily held assets or no related materials, a joint meeting with local relevant agencies (police, prosecution, court, finance) should be organized to unify the handling approach and measures.

If consensus cannot be reached on the handling approach and measures, a report should be submitted to the higher-level civil enforcement agency or the civil enforcement management agency for guidance and instructions on resolution.

Article 14. Handling of Situations Where Evidence Items and Temporarily Held Assets Are Lost or Damaged

When evidence items and temporarily held assets being stored and preserved in the evidence warehouse are found to be lost, damaged, valueless, hazardous, or potentially causing safety risks, they shall be handled as follows:

1. For lost evidence items and temporarily held assets, responsibility must be clarified, and coordination with relevant agencies for investigation and verification must be conducted, and disciplinary action or criminal liability may be pursued against the individual responsible depending on the nature and severity of the violation.

2. For damaged evidence items and temporarily held assets that are no longer usable, they shall be destroyed in accordance with Clause 3, Article 126 of the Civil Enforcement Law and Point b, Clause 2, Clause 3, Article 13 of Circular 01/2016/TT-BTP.

3. For hazardous evidence items and temporarily held assets that could cause safety risks, coordination with specialized agencies shall be conducted to exchange and unify handling approaches and ensure safe disposal, protecting human health and the environment.

Chapter III

IMPLEMENTATION

Article 15. Responsibility for Implementation

1. For the Director General of the Civil Enforcement General Department

a) Advise and propose the Minister of Justice to promulgate professional standards for the Head of the Evidence Warehouse and the Evidence Warehouse Security Officer;

b) Organize training and professional development for the Head of the Evidence Warehouse, the Evidence Warehouse Security Officer, and related individuals on the preservation and handling of evidence items and temporarily held assets, and the management of the evidence warehouse;

c) Direct and guide local civil enforcement agencies in the handover, preservation, and handling of evidence items and temporarily held assets in civil enforcement; coordinate with relevant agencies to direct and guide the resolution of difficulties and challenges in handling special evidence items;

d) Organize inspections, compile reports on the management and handling of evidence items and temporarily held assets in civil enforcement nationwide;

đ) Develop a national plan for the construction of evidence warehouses.

2. For the Director of the Provincial/Central City Civil Enforcement Department

a) Advise and propose the competent authority to organize the construction and repair of evidence warehouses in accordance with this Circular; direct and organize the entry into storage, exit from storage, retention, preservation, and handling of evidence items and temporarily held assets in accordance with regulations;

b) Inspect and unify measures to resolve situations where evidence items being stored and preserved in the evidence warehouse are lost, damaged, hazardous, devalued, or no longer useful for proof purposes, or where safety incidents occur, in accordance with the law;

c) Prepare a budget for managing, repairing, expanding, upgrading the evidence warehouse, purchasing equipment and facilities, and costs for preserving evidence items and temporarily held assets in accordance with the law;

d) Conduct self-inspections and organize inspections of the rental of evidence warehouses; the handover, preservation, and handling of evidence items and temporarily held assets by subordinate civil enforcement agencies;

đ) Organize inspections and report on the situation and results of the handover, preservation, and handling of evidence items and temporarily held assets in civil enforcement at the local level.

3. For the Director of the District/City Civil Enforcement Office

a) Implement the provisions set out in point a, b, c of Clause 2 of this Article;

b) Conduct self-inspections and report on the situation and results of the handover, preservation, and handling of evidence items and temporarily held assets in civil enforcement at their own unit.

Article 16. Effective Date

1. This Circular takes effect from March 15, 2017.

2. The heads of civil enforcement agencies, enforcement officers, civil servants, workers engaged in civil enforcement, and related organizations and individuals are responsible for implementing this Circular./.