Joint Circular No. 06/1998/TTLT/TANDTC-VKSNDTC-BC guiding certain issues regarding the preservation and handling of evidence assets and seized assets during criminal investigations, prosecutions, and trials.

CIRCULAR

JOINT CIRCULAR NO. 06/1998/TTLT/TANDTC-VKSNDTC-BCA-BTC-BTP OF OCTOBER 24, 1998 OF THE SUPREME PEOPLE'S COURT - THE SUPREME PROCURATORATE - THE MINISTRY OF PUBLIC SECURITY - THE MINISTRY OF FINANCE - THE MINISTRY OF JUSTICE GUIDING SOME ISSUES ON THE PRESERVATION AND HANDLING OF EVIDENTIARY PROPERTY AND SEIZED PROPERTY IN THE COURSE OF INVESTIGATION, PROSECUTION, AND TRIAL OF CRIMINAL CASES

In order to ensure the effective implementation of investigation, prosecution, trial, and enforcement of criminal cases, while ensuring the rights and legitimate interests of parties and related persons, ensuring the appropriate and efficient preservation, utilization, and management of evidentiary property and seized property during the course of investigation, prosecution, and trial of criminal cases, minimizing losses and damage to such properties, as well as negative impacts on production and business operations, thereby avoiding waste and damage to state assets, organizations, and individuals;

Pursuant to Articles 56, 57, 58, 120, and 121 of the Criminal Procedure Code, Articles 329 through 362 and Articles 453 through 455 of the Civil Code, and other relevant laws;

Based on the functions and responsibilities of judicial organs, and considering the practical requirements of investigating, prosecuting, and trying criminal cases, the Supreme People's Court, the Supreme Procuratorate, the Ministry of Public Security, and the Ministry of Finance, the Ministry of Justice hereby jointly guide some issues on the preservation and handling of evidentiary property and seized property in the course of investigation, prosecution, and trial of criminal cases as follows:

I. PRESERVATION AND HANDLING OF EVIDENTIARY PROPERTY

During the course of proceedings, investigative agencies, the Procuracy, and the Courts must promptly examine and classify evidentiary property and non-evidentiary property to take appropriate measures for their preservation and handling as follows:

1. For non-evidentiary property, judicial organs shall not seize or temporarily detain it; if it has been seized or temporarily detained, the organ currently handling the case must immediately return such property to its rightful owner or lawful manager. In cases where it is truly necessary to ensure enforcement of fines, confiscation of property, and compensation for damages, the judicial organ with authority may revoke the decision to seize or temporarily detain and issue a decision to seize the property.

2. For evidentiary property, depending on the stage of proceedings, investigative agencies, the Procuracy, and the Courts currently handling the case have the responsibility to examine and classify it to promptly decide on appropriate measures for its preservation and handling according to Article 58 of the Criminal Procedure Code, aiming to ensure the evidentiary value of the evidentiary property regarding the crime and the perpetrator, while minimizing negative impacts on production and business operations, and avoiding unnecessary waste and damage.

3. Evidentiary property (including documents concerning ownership and use rights) must be collected promptly and comprehensively, accurately described in terms of name, brand, serial number, markings, quantity, weight, quality, color, shape, and recorded in the seizure and temporary detention records and included in the case file. If the evidentiary property cannot be included in the case file, photographs should be taken and included in the case file. Detailed records must be kept in accordance with prescribed formats for these properties.

Evidentiary property stored in warehouses must be neatly arranged, with warehouse cards clearly indicating the owner's name, case name, and requiring authorization from an authorized person for any entry or exit.

4. For evidentiary property such as warehouses, factories, hotels, houses, land, as well as other production and business facilities, depending on the stage of proceedings, investigative agencies, the Procuracy, and the Courts currently handling the case (hereinafter referred to as the handling agency) may entrust such property to the owner or lawful manager for continued exploitation and use if they consider that such property has potential profitability; if they lack the conditions for exploitation and use but find a partner to exploit and use it, the handling agency may entrust it to that partner after reaching a written agreement between the owner or lawful manager and the partner accepting exploitation and use; if they cannot find a partner or the owner or lawful manager cannot be identified, the handling agency may entrust such property to an organization or individual capable of exploiting and using it based on a written agreement between the handling agency and the organization or individual accepting exploitation and use. The transfer and acceptance of evidentiary property for exploitation and use shall be carried out as follows:

a) Before transferring evidentiary property to the owner, lawful manager, or organization or individual continuing to exploit and use it (hereinafter referred to as the exploiter), the handling agency must establish an asset valuation committee comprising representatives of the handling agency, the financial department at the same level, and experts if deemed necessary.

The transfer and acceptance of evidentiary property by the exploiter must be documented in a record detailing the condition of the property. The record must bear the signatures and seals of the transferring party and the signatures and seals (if any) of the receiving party. The record must be made in three copies, each party retaining one copy, and one copy filed in the case file.

b) The person exploiting and using the property as evidence must apply all necessary measures to preserve and exploit such assigned property effectively, strictly comply with the decisions of the competent investigative authority regarding the handling of the property, and bear legal responsibility if such property is lost or damaged due to their fault. The exploitation and use of the property must be recorded separately and have separate accounting books for tracking. When requested by the authority currently handling the case, the person exploiting and using the property has the responsibility to report to that authority on the condition of the property as evidence, as well as on the profits and income derived from the exploitation and use of such property.

c) The profits and income derived from the exploitation and use of the property as evidence mentioned above shall be resolved according to the decision of the authority currently handling the case, after deducting actual reasonable expenses for the preservation, exploitation, and use of the property as agreed and committed between the party transferring and the party receiving the property, and fulfilling obligations towards the State.

5. For evidence in the form of warehouses, factories, hotels, houses, land, as well as other production and business means that were previously mortgaged or pledged by the accused to secure payment obligations, the authority currently handling and resolving the case shall process as follows:

a) If the evidence is a legally pledged or mortgaged asset for one or more parties and the pledge or mortgage contract is still valid, then depending on the specific circumstances, the authority currently handling and resolving the case may assign the asset to one or more parties holding the pledged or mortgaged asset (the pledgor or mortgagor, the pledgee or mortgagee, or a third party holding the pledged or mortgaged asset) to continue exploiting and using the asset. In cases where the party holding the pledged or mortgaged asset is the pledgor or mortgagor or the pledgee or mortgagee and does not have conditions to exploit and use the asset, they may find a partner to exploit and use it. The authority currently handling and resolving the case may assign this partner to exploit and use the asset after reaching a written agreement between the pledgor or mortgagor or the pledgee or mortgagee and the partner receiving the exploitation and use of the asset. If the party holding the pledged or mortgaged asset is a third party as stipulated in Articles 336, 337, 355, and 356 of the Civil Code and does not have conditions to exploit and use the asset, then depending on the specific circumstances as agreed in the pledge or mortgage contract, that party must return the asset to the pledgor or mortgagor or the pledgee or mortgagee so that these parties can find a partner to exploit and use it. If they cannot find a partner, the authority currently handling and resolving the case may assign the asset to an organization or individual capable of exploiting and using it based on a written agreement between the authority and the organization or individual receiving the exploitation and use of the asset.

In cases where a legally valid pledge or mortgage contract has expired and the pledgor or mortgagor fails to fulfill or fulfills incorrectly their obligations, then depending on the specific circumstances, the pledged or mortgaged asset may be assigned to the pledgee or mortgagee to exploit and use it or to dispose of it to recover capital and interest after establishing complete documentation to prove the value of the asset as evidence. The method of disposal is agreed upon by the parties in the pledge or mortgage contract; if no agreement is reached, the pledgee or mortgagee has the right to request the auction of the pledged or mortgaged asset to settle debts according to Articles 452 to 455 of the Civil Code and the Auction Regulations issued together with Decree No. 86/CP dated December 19, 1996 of the Government.

The profits and income derived from the exploitation and use of the pledged or mortgaged asset and the proceeds from the disposal of the pledged or mortgaged asset shall be used to pay off the debt to the pledgee or mortgagee after deducting actual reasonable expenses for the preservation, exploitation, and use of the pledged or mortgaged asset and fulfilling obligations towards the State. The person exploiting and using the asset must establish a separate accounting ledger to serve the execution of court judgments and decisions later. If the court decides that the pledgee or mortgagee is not entitled to such payments, then the profits, income, or proceeds from the disposal of the asset must be returned to the party entitled to receive them, after deducting reasonable expenses for the preservation, exploitation, and use of the asset and the costs of disposing of the asset and fulfilling obligations towards the State.

b) In cases where the pledge or mortgage contract is illegal, during the time before the court declares the contract void, the authority currently handling and resolving the case temporarily assigns the pledged or mortgaged asset to the party holding the pledged asset to continue exploiting and using it. In cases where the party holding the asset is the pledgor or mortgagor or the pledgee or mortgagee and does not have conditions to exploit and use the asset but finds a partner to exploit and use it, the authority currently handling and resolving the case may assign this partner to exploit and use the asset after reaching a written agreement between the pledgor or mortgagor or the pledgee or mortgagee and the partner receiving the exploitation and use of the asset. If the party holding the pledged or mortgaged asset is a third party as stipulated in Articles 336, 337, 355, and 356 of the Civil Code and does not have conditions to exploit and use the asset, then depending on the specific circumstances as agreed in the pledge or mortgage contract, that party must return the asset to the pledgor or mortgagor or the pledgee or mortgagee so that these parties can find a partner to exploit and use it. If they cannot find a partner to exploit and use the asset, the authority currently handling and resolving the case may assign the asset to an organization or individual capable of exploiting and using it based on a written agreement between the authority and the organization or individual receiving the exploitation and use of the asset.

The person exploiting and using the property shall be responsible for preserving, exploiting, and using it without causing loss, damage, or selling, transferring ownership rights until a court judgment or decision becomes legally effective.

The profits and income temporarily shall be handed over to the person currently holding the property or the person exploiting and using it for management until a court judgment or decision becomes legally effective, after deducting reasonable actual expenses for the preservation, exploitation, and use of the mortgaged or pledged property and fulfilling obligations to the State.

c) In cases where the property is evidence used as collateral for multiple parties, including both lawful and unlawful parties, depending on specific circumstances, the agency handling the case shall only allow the lawful pledgor, mortgagee, or third party holding the property to exploit and use it according to point 5(a) of this Circular. In such cases, the property shall not be processed for capital recovery before the conclusion of the case.

The profits and income temporarily shall be used to settle debts for the lawful mortgagee or pledgee until a court decision becomes legally effective, after deducting reasonable actual expenses for the preservation, exploitation, and use of the mortgaged or pledged property and fulfilling obligations to the State.

d) The transfer of property as evidence to organizations or individuals for preservation, exploitation, and use shall be carried out according to points 4(a) and 4(b) of this Circular.

6. For evidence that is perishable property (such as vegetables, fruits, fresh food, chemicals, etc.), the seizing agency shall record the condition of the evidence in a protocol, organize a public auction in accordance with the law, deposit the proceeds into a temporary account at the National Treasury, and simultaneously notify the Prosecutor's Office, Court, financial authority at the same level, and the owner of the property (if known).

7. For evidence that is property with a short usage period, nearing the end of its usage period, or difficult to preserve, depending on specific circumstances and based on the current state of the evidence, after reaching a consensus with the Court, Prosecutor's Office, financial authority, and the agency preserving the property, a committee shall organize a public auction of the evidence and deposit the proceeds into a temporary account at the National Treasury, while simultaneously notifying the owner of the property (if known).

8. For evidence that is money, gold, silver, precious metals, gems, antiques, weapons, explosives, flammable materials, toxic substances, radioactive materials, cultural products, etc., the investigative agency must transfer them to competent authorities for preservation. The handover and preservation of gold, silver, precious metals, gems, and other valuable assets within the Treasury system shall be carried out in accordance with Circular No. 63/TCKBNN dated November 9, 1991, issued by the Ministry of Finance.

II. PRESERVATION AND DISPOSITION OF SEIZED ASSETS

1. Seizure of assets may only be applied to suspects or defendants for crimes stipulated by the Criminal Code that may result in asset confiscation or fines, as well as those who must bear compensation liability under the law.

Only the portion of assets corresponding to the amount that could be confiscated, fined, or compensated should be seized. Assets that are pledged or mortgaged may be seized if the person subject to enforcement has no other assets and the value of these assets exceeds the loan amount.

Assets not subject to seizure under the law shall not be seized; if assets not subject to seizure have been seized or if it is found that the seizure is illegal or no longer necessary, the authorized body specified in Clause 1 of Article 121 of the Criminal Procedure Code must promptly issue a decision to revoke the seizure order.

The procedure for seizure must comply with the provisions of Article 121 of the Criminal Procedure Code.

2. After completing the seizure, the agency conducting the seizure shall return the seized assets to the owner or their relatives, or hand them over to organizations or individuals capable of preserving, exploiting, and using them to avoid unnecessary economic waste. If the seized assets are handed over to the relatives of the owner or organizations or individuals capable of preserving, exploiting, and using them, the profits and income from the exploitation and use of these assets shall be returned to the owner after deducting reasonable actual expenses for preservation, exploitation, use, and fulfillment of obligations to the State.

The person entrusted with managing, exploiting, and using the seized assets shall not sell, exchange, pledge, mortgage, or engage in other acts of disposition regarding the assets entrusted to them.

3. Based on the decisions and judgments of the court that have become legally effective, the enforcement agency shall dispose of the seized assets as follows:

a) Organize a public auction in accordance with Articles 34 and 36 of the Enforcement of Civil Judgments Law and the Auction Regulations issued together with Decree No. 86/CP dated December 19, 1996, to enforce fines and compensation.

The proceeds from the public auction of the assets shall be used to pay fines and compensation after deducting reasonable actual expenses for preservation, exploitation, use, and auction organization costs; the remainder shall be returned to the owner of the assets.

The proceeds from the public auction of pledged or mortgaged assets shall be prioritized to settle debts for lawful pledgees or mortgagees after deducting reasonable expenses for preservation, exploitation, use, and auction organization; the remainder shall be used for enforcement.

b) Surrender part or all of the assets to the State treasury to enforce decisions to confiscate part or all of the assets.

III. EFFECTIVE DATE OF IMPLEMENTATION

1. This Circular takes effect from November 10, 1998.

2. During the implementation of this Circular, if there are difficulties or obstacles, the investigation, prosecution, trial, and enforcement agencies need to report to the central leadership of their respective sectors for additional guidance.