Joint Circular No. 06-89/TTLN guiding the implementation of certain provisions of the Civil Enforcement Ordinance

JOINT CIRCULAR

Guidelines for Implementing Certain Provisions of

The Civil Enforcement Decree

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In order to enforce the Civil Enforcement Decree, the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice guide the people's courts and people's procuracies at all levels to uniformly apply the following provisions:

I. JURISDICTION TO ISSUE ENFORCEMENT DECISIONS (Article 4 of the Decree)

1. According to Article 4 of the Decree, the person entitled to enforcement may submit a petition to the President of the court that rendered the judgment in the first instance or concurrently in the final instance requesting enforcement. According to Article 4 of the Decree, the President of the court that rendered the first-instance judgment or the President of the court entrusted with enforcement issues the enforcement decision. The President of the provincial-level court may also issue the enforcement decision when authorized by the President of the Supreme People's Court to enforce the judgment or decision rendered in the first instance and concurrently in the final instance. Therefore, when implementing Article 4 of the Decree, the following points should be noted:

a. The President of the court that rendered the first-instance judgment issues the enforcement decision when this court directly enforces the judgment. If the court that rendered the first-instance judgment does not have the conditions to directly enforce the judgment, then the President of this court entrusts the enforcement to the President of the court where the person obligated to perform resides, works, or has assets related to enforcement so that the President of the court receiving the entrustment issues the enforcement decision and assigns it to the enforcement officer of their own court to enforce.

b. When entrusted by the President of the Supreme People's Court to enforce the judgment or decision rendered in the first instance and concurrently in the final instance, if the provincial-level court directly enforces the judgment, then the President of the provincial-level court issues the enforcement decision and assigns it to the enforcement officer of their own court to enforce. If the provincial-level court does not have the conditions to directly enforce the judgment, then the President of the provincial-level court entrusts the enforcement to the President of the court where the person obligated to perform resides, works, or has assets related to enforcement so that the President of the court receiving the entrustment issues the enforcement decision and assigns it to the enforcement officer of their own court to enforce.

c. After issuing the enforcement decision, if there are no conditions for enforcement, the President of the court that issued the enforcement decision withdraws the decision and entrusts the enforcement to the President of the court that has the conditions for enforcement so that the President of the court receiving the entrustment issues the enforcement decision for the enforcement officer of their own court to enforce.

d. If during the enforcement process, the person obligated to perform moves to reside, work in the jurisdiction of another court, or the property available for deduction in the place of enforcement is no longer present, then the enforcement officer requests the President of the court to issue a decision entrusting the enforcement to the President of the court in the new place of enforcement so that the President of the court receiving the entrustment issues the enforcement decision for the remaining part of the judgment or decision.

2. Provincial-level courts may entrust enforcement directly to district-level courts in other provinces. District-level courts in these provinces may entrust enforcement to provincial-level courts or district-level courts in other provinces. Upon receiving the entrustment, if the enforcement falls within the jurisdiction of another court, the court receiving the entrustment must transfer it to the court with jurisdiction and inform the court that made the entrustment. If they do not know which court has jurisdiction, they return it to the court that made the entrustment.

The enforcement officer must notify the procuratorate at the same level and the person entitled to enforcement about the entrustment of enforcement to the new place of enforcement.

3. If there is a dispute over jurisdiction for enforcement, the President of the provincial-level court resolves disputes between courts in the same province; the Presidents of provincial-level courts or the President of the military region court coordinate to resolve disputes between two courts in different provinces or between civilian courts and military courts.

II. TIME LIMIT FOR ENFORCEMENT (Article 16 of the Decree)

1. The Decree stipulates that the time limit for enforcement is the period during which the judgment or decision of the court is effective for enforcement. After this period, if there are no grounds provided for in the Decree, the judgment or decision ceases to be effective for enforcement. This means:

a. For cases where the person entitled to enforcement is a citizen: if within three years from the date the judgment or decision becomes legally binding, they do not request the court to enforce it, then afterwards, they have no right to request the court and the person obligated to perform to enforce it.

b. For cases where the person entitled to enforcement is an agency or organization: if within one year from the date the judgment or decision becomes legally binding, they do not request the court to enforce it, then afterwards, they also have no right to request the court and the person obligated to perform to enforce it. According to Clause 2, Article 15 of the Decree, the President of the court must proactively issue an enforcement decision for judgments or decisions of the court regarding the return of property or compensation for damage to socialist property, fines, confiscation of property, and court fees. Therefore, if the agency or organization entitled to the return of property or compensation for damage does not request the court to enforce it within the aforementioned period, but the court has proactively enforced it, the court will deposit the enforced property into the state budget. However, if due to some reason (forgetfulness, loss, or intentional failure to bring the judgment or decision to enforcement...), the agency or organization entitled to enforcement does not request enforcement and the court also does not proactively bring the judgment or decision to enforcement, then after one year, the court cannot bring the judgment or decision to enforcement anymore. As for those who negligently fail to bring the judgment or decision of the court to enforcement within the aforementioned period causing damage to socialist property, they will be disciplined according to the degree of violation, ordered to compensate for damages under the material responsibility system, civil liability, or criminally pursued according to the law.

2. For cases where the judgment or decision of the court specifies periodic enforcement, and the person obligated to perform has performed part of it but then stops performing, the citizen entitled to enforcement has the right to request the court to enforce it within three years; for agencies or organizations, the time limit is one year from the date the person obligated to perform stops performing.

III. SUSPENSION OF JUDGMENT EXECUTION, TEMPORARY HALT OF JUDGMENT EXECUTION (Articles 18 and 19 of the Ordinance)

1. According to Clause 2 of Article 18 of the Ordinance, when necessary, the President of the Court or the Prosecutor General of the higher-level Prosecution Office has the right to request the Court where the judgment execution takes place to suspend the execution of the judgment to examine the protest according to the cassation or revision procedure. When implementing this provision, it should be noted that only in cases where through the report of the President of the Court, the Prosecutor General of the lower-level Prosecution Office or other sources of information, the President of the Court, the Prosecutor General of the higher-level Prosecution Office find that the judgment or decision of the Court violates or may violate the law, thus requiring immediate suspension of execution to avoid irreparable or difficult-to-rectify consequences such as forced demolition of houses, return of houses..., can the suspension of judgment execution be requested. The document requesting the suspension of judgment execution shall be signed by the President of the Court or the Prosecutor General, or alternatively by the Vice-President of the Court or the Deputy Prosecutor General. The person authorized to request the suspension of judgment execution shall not delegate this authority to another person.

The request for suspension of judgment execution can be notified directly or in writing, but if notified directly via telephone, telegram, etc., then a written document must also be sent to the Court where the judgment execution takes place afterwards. Before receiving the written document, if immediate notification is required, it must be done directly by the President, Vice-President of the Court, Prosecutor General, or Deputy Prosecutor General. If a written document already exists and immediate notification is required via telephone or telegram, the person tasked with notifying must clearly state their name, position, the number of the document, the date of issuance, the main content of the document, and the person who signed the document. The recipient of the notification must also inform the notifier of their name and position to determine responsibility if necessary.

The person requesting the suspension of judgment execution must specify the duration of the suspension of judgment execution. Whether requesting a single suspension or multiple suspensions, the total duration of the suspension of judgment execution shall not exceed three months.

Upon receiving direct notification or a written request for suspension of judgment execution, the President of the Court where the judgment execution takes place must immediately issue a decision to suspend judgment execution within the time limit set by the authorized person requesting the suspension of judgment execution and the total duration of the suspension of judgment execution in this case shall not exceed three months. After the expiration of this period, if there are no grounds to suspend judgment execution, temporarily halt judgment execution, or terminate judgment execution according to the provisions of the Ordinance, the President of the Court where the judgment execution takes place must immediately enforce the judgment.

2. According to Clause 1 of Article 19 of the Ordinance, the person who has protested against the judgment or decision of the Court has the right to temporarily halt the execution of the judgment or decision. Therefore, the decision to temporarily halt judgment execution can only be made in the protest or after protesting, and cannot be decided before protesting.

IV. RETURNING THE APPLICATION FOR JUDGMENT ENFORCEMENT AND DEDUCTING FROM THE INCOME OF THE PERSON SUBJECT TO JUDGMENT ENFORCEMENT (Articles 21 and 32 of the Ordinance)

1. In accordance with the spirit of Article 21 of the Ordinance, when there is evidence to determine that the person subject to judgment enforcement does not have assets available for enforcement, the President of the Court where the judgment enforcement takes place decides to return the application for judgment enforcement to the person entitled to judgment enforcement. When applying this provision, it should be noted that the President of the Court where the judgment enforcement takes place will only issue a decision to return the application for judgment enforcement when there is evidence to determine that the person subject to judgment enforcement truly does not have assets that can be seized or income that can be deducted for judgment enforcement.

2. According to Clause 2 of Article 32 of the Ordinance, "deduction from income" is applied when enforcing judgments on maintenance payments or when other assets of the person subject to judgment enforcement have been seized, but these assets are insufficient for enforcement. However, it should be noted that if the person subject to judgment enforcement does not have assets to seize, but has income, the Court can also deduct from their income for judgment enforcement.

V. VALUATION OF SEIZED ASSETS (Article 25 of the Ordinance)

According to Clause 2 of Article 25 of the Ordinance, when seizing assets, if the parties cannot agree on the price or valuation is difficult, the Enforcement Officer invites the Valuation Board to conduct a preliminary valuation of the seized assets. This provision aims to help the Enforcement Officer estimate the amount of assets needed to be seized corresponding to the amount sufficient for judgment enforcement and to cover enforcement costs; at the same time, to determine the responsibility of the person entrusted with the custody of the seized assets. Therefore, when seizing assets, if the parties cannot agree on the price, the Enforcement Officer needs to rely on the opinions of local government representatives, witnesses, and the parties to preliminarily value the seized assets. The Enforcement Officer only invites the Valuation Board in cases where the person entitled to judgment enforcement agrees to accept the seized assets for enforcement at the price determined by the Valuation Board or due to the special nature of the assets, the Enforcement Officer cannot estimate the price. For these cases, the Valuation Board must formally value all the seized assets of the person subject to judgment enforcement so that they do not need to be revalued during auction, except in cases of significant price fluctuations.

VI. AUCTION OF SEIZED ASSETS (Articles 28 and 30 of the Ordinance)

1. Within thirty days from the date the Valuation Board determines the price, the Enforcement Officer must organize the auction. The auction of real estate is conducted at the location of the property. For other assets, the Enforcement Officer may conduct the auction at the location of the asset or at a convenient location. If the auction is held at the Court's premises, it shall not affect the operation of the agency.

At least seven days before the auction date, the Enforcement Officer must publicly post at the Court's premises, the People's Committee where the asset is located, and widely announce the list of assets, the determined price, the time, and the location of the auction. At the same time, they must notify the parties involved. The announcement may include specific requirements for bidders.

3. Prior to the auction, the person subject to judgment enforcement may pay the judgment enforcement money to reclaim the seized asset, and the person entitled to judgment enforcement may accept the seized asset for enforcement at the determined price.

4. When conducting a public auction, the enforcement officer shall coordinate with local authorities and the people's police force to protect assets and maintain order. Auctioned assets shall be displayed publicly, clearly marked with their serial number and set price. The enforcement officer shall open the auction; introduce representatives from invited authorities and organizations, representatives from the People's Procuracy (if any), and announce the auction procedures.

The enforcement officer shall sequentially auction off the assets of each person subject to enforcement and announce the set price for each asset for the buyer to bid on. The asset shall be sold to the highest bidder. If there is no higher bid than the set price, it shall be sold to the buyer at the set price. When the proceeds from selling the assets are sufficient to enforce the judgment and cover enforcement costs, the enforcement officer shall stop the auction and return the remaining assets to the person subject to enforcement.

For assets that are not real estate, the buyer shall pay the full amount immediately at the auction site; however, if the asset is valued at one million dong or more, the buyer must pay at least 10% of the asset's value and within three days from the date of the auction, they must pay the remaining balance at the court. The buyer shall receive the asset immediately upon full payment. If the buyer fails to make full payment within this period, the previously paid amount shall not be refunded but shall be deposited into the state budget, except in cases of justifiable reasons accepted by the enforcement officer. The auction of real estate shall be carried out according to the provisions of Article 30 of the Ordinance and the procedures for organizing the auction stipulated in this Circular.

For assets requiring ownership transfer procedures, the enforcement officer shall hand over necessary documents to the buyer for such procedures no later than three days after the buyer has made full payment. The enforcement officer shall record the auction of each person's assets in a minutes document, which shall include a detailed list of assets, prices paid, buyer's name and address, etc. The minutes shall bear the signatures of the enforcement officer, witnesses, and parties present at the auction (if any). In cases where there is no buyer, the buyer offers a lower price than the set price, or fails to make full payment within the prescribed period, the enforcement officer shall record the unsuccessful auction and notify the parties concerned.

VII. ENFORCEMENT COSTS

According to Clause 2 of Article 17 of the Ordinance, the person subject to enforcement shall bear the costs of compulsory enforcement. These costs include transportation fees, asset preservation fees, appraisal fees for seized assets for storage and valuation, rental fees for venues and equipment for organizing auctions, etc., based on actual and reasonable expenses determined by the enforcement officer.

Costs for organizing meetings with relevant agencies and organizations to support the court in compulsory enforcement, operational costs of the Enforcement Council, and allowances for those participating in compulsory enforcement shall be covered by the budget under general regulations, so the enforcement officer shall not include these in the costs to be borne by the person subject to enforcement.

The enforcement officer shall not request or suggest that the person subject to execution bear the costs of compulsory enforcement instead of the person subject to enforcement. However, if the person subject to enforcement genuinely faces difficulties and the person subject to execution voluntarily provides conditions to facilitate the enforcement process (such as providing manpower, transportation means, etc.), the enforcement officer may accept this, but shall not accept allowances for those participating in compulsory enforcement.

VIII. EFFECTIVENESS OF THE ORDINANCE

According to Article 42, the Ordinance shall take effect from January 1, 1990. Therefore, from January 1, 1990 onwards, the enforcement procedures for judgments or decisions effective from January 1, 1990 onwards, as well as judgments or decisions effective before January 1, 1990, shall all be conducted in accordance with the provisions of this Ordinance.