Joint Circular No. 04/2009/TTLT-BTP-BTC guides ensuring financial guarantees from the state budget for enforcement proceedings.

JOINT CIRCULAR

Guidelines for ensuring financial support from the state budget to enforce judgments

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Pursuant to the Civil Enforcement Law 2008;

Pursuant to Decree No. 58/2009/NĐ-CP dated July 13, 2009 of the Government detailing and guiding the implementation of certain provisions of the Civil Enforcement Law on enforcement procedures;

Pursuant to Decree No. 93/2008/NĐ-CP dated August 22, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to the Decree No. 118/2008/NĐ-CP dated November 27, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

The Ministry of Justice and the Ministry of Finance jointly issue guidelines for ensuring financial support from the state budget to enforce judgments as follows:

Article 1. Subjects eligible for financial security for enforcement

1. The subjects eligible for financial support from the state budget to enforce judgments are stipulated in Article 27 of Decree No. 58/2009/NĐ-CP dated July 13, 2009 of the Government detailing and guiding the implementation of certain provisions of the Civil Enforcement Law on enforcement procedures.

2. In cases where the subjects eligible for financial support from the state budget to enforce judgments as stipulated in Clause 1 of this Article undergo merger, consolidation, division, separation, dissolution, or conversion, the following shall be implemented:

a) In cases of merger or consolidation, the new organization shall continue to fulfill the enforcement obligations. If the new organization falls within the scope defined in Clause 1 of this Article, the state budget shall ensure financial support to fulfill the enforcement obligations.

b) In cases of division or separation, the authority issuing the decision on division or separation must clearly identify the organization that will continue to fulfill the enforcement obligations according to the division or separation decision. If the division or separation decision does not specify the obligations of the new organizations, after the division or separation, the new organizations shall jointly bear the responsibility for fulfilling the enforcement obligations of the organization being divided or separated. If the new organizations fall within the scope defined in Clause 1 of this Article, the state budget shall ensure financial support to fulfill the enforcement obligations.

c) In cases of dissolution or conversion, the competent authority issuing the dissolution or conversion decision shall be responsible for clearly identifying the organization that will assume the enforcement obligations. If the dissolution or conversion decision does not clearly identify the organization that will assume the enforcement obligations, the authority issuing the dissolution or conversion decision shall have the obligation to ensure financial support for enforcing the judgment.

Article 2. Conditions for securing financial resources for enforcement

Organizations required to enforce judgments that are eligible for financial security from the state budget for enforcement shall be secured financial resources from the state budget for enforcement after:

1. Having requested the person at fault to fulfill their obligation but that person lacks the ability to fulfill the obligation or has only partially fulfilled it with the amount paid.

2. Organizations that have utilized the savings from the assigned funds as specified in Decree No. 130/2005/NĐ-CP dated October 17, 2005 of the Government on the self-management and self-responsibility system for personnel establishment and administrative management costs for state agencies, or those that have been granted financial autonomy as specified in Decree No. 43/2006/NĐ-CP dated April 25, 2006 of the Government on the rights of self-management and self-responsibility for performing tasks, organizational structure, personnel establishment, and finance for public service units, or those that have utilized savings from annual operating funds as specified in Decree No. 68/2006/NĐ-CP dated July 18, 2006 of the Government detailing and guiding the implementation of certain provisions of the Law on Thrift and Anti-Waste but still lack the ability to enforce judgments.

The aforementioned savings shall be determined at the time of establishing the financial guarantee file for enforcement and can only be used to ensure financial support for the enforcement obligations that must be fulfilled.

Article 3. Scope of Financial Support for Enforcement

The state budget shall provide financial support for enforcement in the following cases:

1. For monetary obligations determined in the judgment or decision, including cash payments and monetary obligations derived from assets if the judgment or decision has converted the asset value into money.

2. For obligations determined in the judgment or decision as the delivery of assets, but the assets to be delivered have decreased in value or no longer exist after the judgment or decision becomes legally effective.

Article 4. Determination of Execution Obligations

The obligation for enforcement serves as the basis for calculating the level of financial guarantee for enforcement and is determined as follows:

1. The amount of money determined in the judgment or decision for the obligation to pay money to the person entitled to execution, including monetary obligations and obligations fulfilled through property if the judgment or decision has converted such obligations into monetary terms.

2. In cases where the obligation in the judgment or decision is an obligation to deliver property but the property to be delivered has decreased in value or the property to be delivered no longer exists after the judgment or decision becomes legally effective, the execution obligation shall be the reduced value of the property in case of depreciation or the value of the property in case it no longer exists. The reduced value or the value of the property to be delivered shall be determined as follows:

a) The value stated in the appraisal document issued by the organization with appraisal functions when the parties cannot agree on payment in cash for similar assets or agree to pay more than the value stated in the appraisal document.

b) The agreed value between the parties if the agreed value is lower than the value determined in the appraisal document issued by the organization with appraisal functions contracted by the civil enforcement agency.

3. In cases where the agency or organization responsible for execution must fulfill execution obligations towards multiple persons entitled to execution in one judgment or decision, or must fulfill multiple execution obligations in different judgments or decisions, the execution obligation is the total of all execution obligations that the agency or organization responsible for execution must fulfill.

Article 5. Financial Guarantee Level for Execution

The level of financial guarantee for enforcement, decided by the authorized person, is determined as follows:

a) The financial guarantee level for execution is the remaining part of the execution obligation after the agency or organization responsible for execution has applied the financial measures provided for in Article 2 of this Circular to settle the execution obligation.

b) In cases where the agency or organization responsible for execution is unable to apply the financial measures provided for in Article 2 of this Circular to fulfill the execution obligation, the financial guarantee level for execution is the entire execution obligation.

Article 6. Sources of Budget Funds for Financial Guarantees for Execution

Agencies and organizations responsible for execution under central management are guaranteed financial resources for execution from the central budget; agencies and organizations responsible for execution under local management are guaranteed financial resources for execution from the local budget according to the current state budget decentralization.

Article 7. Procedures for Implementing Financial Guarantees for Execution

1. Within thirty days from the date of receipt of the execution decision, the agency or organization responsible for execution shall have the responsibility to apply the financial measures provided for in Article 2 of this Circular to settle the execution obligation.

After applying the financial measures provided for in Article 2 of this Circular but being unable to implement them or only able to partially fulfill the execution obligation, the agency or organization responsible for execution shall have the responsibility to prepare a file requesting financial guarantees for execution.

a) For agencies and organizations responsible for execution that are first-level budget units (of various levels of budget), the request for financial guarantee must be sent to the Ministry of Finance (if it is a unit of the central budget) for review and allocation of funds for execution guarantees; or sent to the same-level finance authority (if it is a unit of the local budget) for review and submission to the same-level People's Committee for consideration and decision on allocation of funds for execution guarantees.

b) For agencies and organizations responsible for execution that are not first-level budget units, the request for financial guarantee must be submitted to the immediate superior authority for review and consolidation, then forwarded to the competent authority for review and allocation of funds for execution guarantees.

Within seven working days from the date of receiving complete files as prescribed, the superior authority shall have the responsibility to review and forward the request for financial guarantee to the first-level budget unit for review and consolidation, then submit to the Ministry of Finance for review and allocation of funds for execution guarantees (if it is a unit of the central budget) or to the same-level finance authority for review and submission to the same-level People's Committee for consideration and decision on allocation of funds for execution guarantees (if it is a unit of the local budget).

c) For agencies and organizations responsible for execution that are People's Committees at various levels, the same-level finance authority shall cooperate with relevant specialized authorities under the same-level People's Committee to prepare the financial guarantee file for submission to the same-level People's Committee for consideration and decision on allocation of funds for execution guarantees.

2. The examination and allocation of funds to ensure enforcement shall be carried out as follows:

a) In cases where the agency or organization responsible for execution is a unit of the central budget, within fifteen days from the date of receipt of the request for financial guarantee from the agency or organization responsible for execution, ministries, ministerial-level agencies, and central agencies of political organizations and political-social organizations shall have the responsibility to send the request for financial guarantee to the Ministry of Finance for review and allocation of funds for execution guarantees.

b) In cases where the agency or organization responsible for execution is a unit of the local budget, within fifteen days from the date of receipt of the request for financial guarantee from the agency or organization responsible for execution, the same-level finance authority shall have the responsibility to review and submit to the same-level People's Committee for consideration and decision on allocation of funds for execution guarantees.

c) Within fifteen days from the date of receipt of the request for financial guarantee for execution, the Ministry of Finance or People's Committees at various levels shall have the responsibility to consider and decide on allocation of funds for execution guarantees.

3. The application file for financial guarantee to enforce the judgment includes:

a) A request for financial guarantee to enforce the judgment from the agency or organization responsible for enforcing the judgment, sent to the competent state authority;

b) The effective judgment or decision of the competent state authority;

c) The enforcement decision;

d) Report on the fulfillment of execution obligations by the person at fault who caused damage and by the agency or organization responsible for execution using the savings fund as stipulated in Article 2 of this Circular;

đ) Agreement record for payment in cash for the obligation to deliver property between the parties. The record must be in writing, signed, and stamped (if applicable) by the parties and confirmed by the Enforcement Officer in charge of execution.

The civil enforcement agency shall be responsible for signing an appraisal contract with an organization having the function of appraising values no later than five working days from the date when the parties involved cannot agree on payment in cash or from the date when the parties agree to pay in cash the obligation to deliver property according to the judgment or decision. The enforcement agency shall be responsible for sending the appraisal document to the financial authority for financial guarantee verification.

4. The decision on financial guarantee for enforcement shall be sent to the agencies and organizations required to enforce the judgment and the enforcement agency.

The enforcement guarantee funds shall be directly allocated to the agencies and organizations required to enforce the judgment according to the current financial management system.

Article 8. Payment for Enforcement

Within five working days from the date of receiving the enforcement guarantee funds, the agencies and organizations required to enforce the judgment must proceed with the procedures to pay the enforcement money to the person entitled to enforcement through the enforcement agency or transfer the financial guarantee amount into the enforcement agency's deposit account for payment to the person entitled to enforcement.

Within thirty days from the date of receiving the enforcement financial guarantee funds, the agencies and organizations required to enforce the judgment shall be responsible for preparing a written report on the situation of paying the enforcement money to the person entitled to enforcement, to be submitted to the immediate superior administrative body and simultaneously to the financial authority that provided the enforcement guarantee funds.

Article 9. Appraisal Costs

In cases where the subject of enforcement is property, the enforcement agency shall be responsible for signing a contract with an organization having the function of appraising values to appraise the enforcement property. Appraisal costs are a special business expense item of the civil enforcement agency and are included in the annual budget estimate of the civil enforcement agency.

Article 10. Procedures for Returning Financial Guarantees for Enforcement to the State Budget

1. The agencies and organizations required to enforce the judgment shall be responsible for recovering the repayment amount from the person causing damage to submit to the state budget.

The amount recovered from the person causing damage must be deposited into the central government budget for agencies and organizations required to enforce the judgment which are units managed by the central government and financially guaranteed by the central budget, or deposited into the local government budget for agencies and organizations required to enforce the judgment which are units managed by local governments and financially guaranteed by local budgets.

The settlement, collection, and deposit of the recovered amount into the budget shall be carried out according to the current financial management system.

2. The level of repayment to the state budget must be decided by the Repayment Review Board based on the degree of fault, the amount of money under the responsibility to enforce the judgment, family circumstances, personal background, and economic conditions of the person causing damage.

3. The head of the agencies and organizations required to enforce the judgment shall be responsible for issuing a decision to establish the Repayment Review Board, no later than fifteen days from the date the competent authority issues the decision on financial guarantee for enforcement.

4. Members of the Repayment Review Board include: the Chairman of the Repayment Review Board being the head or deputy head of the agency or organization required to enforce the judgment, representatives of the grassroots trade union organization, the person directly responsible for the person causing damage, the chief accountant, and other relevant persons. Additional experts from related fields may be invited if necessary. The board will dissolve itself upon completion of its tasks.

5. The head of the agencies and organizations required to enforce the judgment shall issue a decision on the level of repayment and the repayment deadline based on the recommendation of the Repayment Review Board. The repayment decision must be sent to the person causing damage and other relevant parties for implementation. In cases where there is a request for exemption or reduction of the repayment level, the head of the organization required to enforce the judgment shall be responsible for reviewing and deciding according to their authority. The decision on exemption or reduction of the repayment level must specify the legal basis and reasons for resolution.

6. In cases where the person causing damage is also the head of the agency or organization required to enforce the judgment, the head of the immediate superior administrative body of the agency or organization required to enforce the judgment shall issue a decision on the level of repayment to the state budget.

7. In cases where the person required to repay does not agree with the repayment level or refuses to repay, the agency or organization required to enforce the judgment shall prepare a dossier requesting the court to resolve the matter.

Article 11. Establishing the budget estimate and finalizing the financial guarantee funds for enforcement

1. Annually, based on the actual financial guarantee for enforcement in the previous year, central ministries and sectors; local specialized agencies shall cooperate with the same-level financial agencies to establish the budget estimate for the enforcement guarantee expenses to be consolidated into their own level budget and the state budget, and submit it to the competent authority for decision in accordance with the laws on the state budget.

2. The state budget for financial guarantee for enforcement can only be used when there is a need to allocate funds for enforcement payment, and shall not be allocated to agencies and organizations responsible for enforcement.

3. At the end of the fiscal year, agencies and organizations responsible for enforcement must finalize the enforcement guarantee expenses funded by the state budget according to the laws on the state budget.

Article 12. Implementation Provisions

1. This Circular takes effect 45 days from the date of issuance, replacing Circular No. 86/2005/TT-BTC dated October 3, 2005, issued by the Ministry of Finance guiding the implementation of certain provisions of Decision No. 136/2005/QĐ-TTg dated June 9, 2005, of the Prime Minister on financial support from the state budget for civil enforcement.

2. Cases eligible for financial support under Decision No. 136/2005/QĐ-TTg dated June 9, 2005, of the Prime Minister on financial support from the state budget for civil enforcement that have not yet submitted applications or have submitted applications but have not yet received financial support for enforcement, if they fall within the categories specified in Article 1 of this Circular, shall be guaranteed financial support from the state budget for enforcement.

3. In the course of implementation, if any difficulties arise, units are requested to report to the Ministry of Justice and the Ministry of Finance for timely resolution and handling./.