Joint Circular No. 06/1998/TTLT-TANDTC-VKSNDTC-BCA-BTC-BTP guiding certain issues regarding the preservation and handling of property as evidence and seized property during the investigation, prosecution, and trial of criminal cases.

JOINT CIRCULAR

Guidelines on the preservation and handling of property as evidence and seized property during the investigation, prosecution, trial of criminal cases

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To ensure the effective implementation of investigative, prosecutorial, trial, and enforcement activities, while safeguarding the rights and legitimate interests of parties and related persons, ensuring appropriate and efficient preservation, utilization, and management of property as evidence and seized property during the investigation, prosecution, and trial of criminal cases, minimizing losses and damage to such property, as well as negative impacts on production and business operations, 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 to 362 and Articles 453 to 455 of the Civil Code, and other relevant legal provisions;

Based on the functions and responsibilities of judicial organs, and in response to practical requirements for the investigation, prosecution, and trial of criminal cases, the Supreme People's Court, Public Prosecution Supervisory Body, Safety Apparatus, Finance Ministry, and Judicial Ministry hereby jointly issue guidelines on the preservation and handling of property as evidence and seized property during the investigation, prosecution, and trial of criminal cases as follows:

I. PRESERVATION AND HANDLING OF PROPERTY AS EVIDENCE

During the course of proceedings, investigative agencies, public prosecutors, and courts must promptly examine and classify property as evidence and non-evidence property to take appropriate measures for their preservation and handling as follows:

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

2. For property as evidence, depending on the stage of proceedings, the investigative agency, public prosecutor, and court currently handling the case shall be responsible for examining and classifying it to promptly decide on appropriate preservation and handling measures for each type of evidence in accordance with Article 58 of the Criminal Procedure Code, thereby ensuring the evidentiary value of the evidence regarding the crime and the perpetrator, while minimizing negative impacts on production and business operations, and avoiding unnecessary waste and damage.

Evidence that is 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 detention documents and included in the case file. If the evidence cannot be included in the case file, photographs must be taken and included in the file. Detailed records must be kept according to prescribed formats.

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

For evidence that is warehouses, factories, hotels, houses, land, as well as other production and business facilities, depending on the stage of proceedings, the investigative agency, public prosecutor, and court 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 determine that these properties have profit-making potential; if they lack the conditions to exploit and use them but find a partner to do so, the handling agency may entrust the property to the partner for exploitation and use after reaching a written agreement between the owner or lawful manager and the partner accepting the exploitation and use of the property; if they cannot find a partner or the owner and lawful manager cannot be identified, the handling agency may entrust the 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 the exploitation and use of the property. The transfer and acceptance of property as evidence for exploitation and use shall be carried out as follows:

a) Prior to transferring property as evidence to the owner, lawful manager, or organization/individual for continued exploitation and use (hereinafter referred to as the exploiter/user), the handling agency must establish an asset valuation committee comprising representatives of the judicial organ currently handling the case, the financial department at the same level, and experts, if deemed necessary.

The transfer and acceptance of property as evidence to the exploiter/user 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 applicable) 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 exploiter/user of property as evidence must apply all necessary measures to preserve and exploit the property effectively, strictly comply with the decisions of the judicial organ with authority regarding the handling of the property, and bear legal responsibility if the property is lost or damaged due to their fault. The exploitation and use of the property must be separately accounted for and recorded in separate accounting books. When requested by the handling agency, the exploiter/user of the property must report to the agency on the condition of the property as evidence, as well as the profits and income derived from the exploitation and use of the property.

b) The person exploiting and using the property as evidence must apply all necessary measures to preserve and exploit the assigned property effectively, strictly comply with the decisions of the competent investigative authority regarding the handling of the property, and shall be liable under the law if the property is lost or damaged due to their fault. The exploitation and use of the property must be accounted for separately and have separate accounting records. When requested by the agency currently handling and resolving the case, the person exploiting and using the property shall be responsible for reporting to that agency 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 aforementioned property evidence shall be resolved according to the decision of the agency handling and resolving the case, after deducting actual reasonable expenses for the preservation, exploitation, and use of the property as agreed upon and committed between the party transferring and the party receiving the property, and fulfilling obligations towards the State.

5. For property evidence that are warehouses, factories, hotels, houses, land, as well as other production and business means that were previously pledged or mortgaged by the suspect or defendant to secure payment obligations, the agency handling and resolving the case shall handle them as follows:

a) If the property evidence is legally pledged or mortgaged to one or more parties and the pledge or mortgage contract is still valid, then depending on specific circumstances, the agency handling and resolving the case may hand over the property to one or more parties holding the pledged or mortgaged property (the pledgor or mortgagor, the pledgee or mortgagee, or a third party holding the pledged or mortgaged property) to continue exploiting and using it. In cases where the party holding the pledged or mortgaged property is the pledgor or mortgagor or the pledgee or mortgagee and they do not have conditions to exploit and use the property, they may find a partner to exploit and use it. The agency handling and resolving the case may hand over the property to this partner for exploitation and use after a written agreement is reached between the pledgor or mortgagor or the pledgee or mortgagee and the partner receiving the right to exploit and use the property. If the party holding the pledged or mortgaged property is a third party as stipulated in Articles 336, 337, 355, and 356 of the Civil Code and they do not have conditions to exploit and use the property, then depending on specific circumstances as agreed upon in the pledge or mortgage contract, they must return the property 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 agency handling and resolving the case may hand over the property to an organization or individual with conditions to exploit and use it based on a written agreement between the agency handling and resolving the case and the organization or individual receiving the right to exploit and use the property.

In cases where a legal pledge or mortgage contract has expired but the pledgor or mortgagor does not fulfill or fulfills incorrectly their obligations, then depending on specific circumstances, the pledged or mortgaged property will be handed over to the pledgee or mortgagee to exploit and use it or to process it to recover capital and interest after completing all necessary documentation to prove the value of the property as evidence. The method of processing is agreed upon by the parties in the pledge or mortgage contract; if there is no agreement, the pledgee or mortgagee has the right to request the auction of the pledged or mortgaged property 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 property and the proceeds from the processing of the pledged or mortgaged property 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 property and fulfilling obligations towards the State. The person exploiting and using the property must maintain separate accounting records to serve the execution of court judgments later. If the court decides that the pledgee or mortgagee is not entitled to such payments, then the profits, income, or proceeds from the processing of the property must be returned to the person entitled to receive the profits, income, or proceeds, after deducting reasonable expenses for the preservation, exploitation, and use of the property, expenses for processing the property, 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 agency handling and resolving the case temporarily hands over the pledged or mortgaged property to the party holding the pledged property to continue exploiting and using it. If the party holding the property is the pledgor or mortgagor or the pledgee or mortgagee and they do not have conditions to exploit and use the property but find a partner to exploit and use it, the agency handling and resolving the case may hand over the property to this partner for exploitation and use after a written agreement is reached between the pledgor or mortgagor or the pledgee or mortgagee and the partner receiving the right to exploit and use the property. If the party holding the pledged or mortgaged property is a third party as stipulated in Articles 336, 337, 355, and 356 of the Civil Code and they do not have conditions to exploit and use the property, then depending on specific circumstances as agreed upon in the pledge or mortgage contract, they must return the property 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 property, the agency handling and resolving the case may hand over the property to an organization or individual with conditions to exploit and use it based on a written agreement between the agency handling and resolving the case and the organization or individual receiving the right to exploit and use the property.

The person exploiting and using the property is responsible for preserving, exploiting, and using it, and shall not cause loss, damage, sale, or transfer of ownership until a court judgment becomes legally effective.

The profits and income derived temporarily shall be managed by the party holding the property or the person exploiting and using it until a court judgment becomes legally effective, after deducting actual reasonable expenses for the preservation, exploitation, and use of the pledged or mortgaged property and fulfilling obligations towards the State.

c) In the case where the property is evidence used as collateral for multiple parties, including both lawful and unlawful parties, then depending on each specific situation, the agency handling and resolving the case shall only allow the party with the collateralized property, the lawful recipient of the collateral, or the third party currently holding the property to exploit and use it according to point 5 (a) of this Circular. In this case, the property handed over for preservation, use, and exploitation shall not be processed for recovery of capital before the conclusion of the case.

The profits and income obtained shall temporarily be used to settle debts for the lawful recipient of the mortgage or pledge until there is a final judgment or decision of the Court, 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 in accordance with points 4(a) and 4(b) of this Circular.

6. For evidence that is property belonging to the type that deteriorates quickly (such as vegetables, fruits, fresh food, chemicals...), the agency seizing it shall record the condition of such evidence in a written statement, organize a public auction in accordance with the law, deposit the proceeds into a temporary account at the State Treasury, and simultaneously notify the People's Procuracy, 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 each specific situation and based on the current state of the evidence, after reaching a consensus with the Court, People's Procuracy, financial authority at the same level, and the agency preserving the property, a Council shall organize a public auction of such evidence and deposit the proceeds into a temporary account at the State 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..., the investigative agency must transfer them to the competent authority 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 regarding crimes stipulated by the Criminal Code that may result in confiscation of assets or fines, as well as persons liable for compensation under the law.

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

Assets not subject to seizure as prescribed by law shall not be seized; if assets not subject to seizure have been seized or if it is determined that the seizure is contrary to the law or is no longer necessary, the authorized person 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 asset to the owner or their relatives, or hand it over to an organization or individual capable of preserving, exploiting, and using it to avoid unnecessary economic waste. If the seized asset is handed over to the relatives of the owner or an organization or individual capable of preserving, exploiting, and using it, the profits and income derived from the exploitation and use of the asset shall be returned to the owner after deducting reasonable actual expenses for preservation, exploitation, and use and fulfilling obligations to the State.

The person managing, exploiting, and using the seized asset shall not sell, exchange, pledge, mortgage, or engage in other acts of disposition against the asset received.

3. Based on the decision or judgment of the Court that has taken legal effect, the enforcement agency shall dispose of the seized asset as follows:

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

The proceeds from the public auction of the asset shall be paid towards fines and compensation after deducting reasonable actual expenses for preservation, exploitation, and use and the costs of organizing the public auction; the remainder shall be returned to the owner of the asset.

The proceeds from the public auction of pledged or mortgaged assets shall be prioritized to pay the lawful recipient of the pledge or mortgage after deducting the costs of preservation, exploitation, and use and the costs of organizing the public auction; the remainder shall be used for enforcement.

b) Surrender part or all of the asset to the State treasury to enforce the decision to confiscate part or all of the asset.

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.