Decree No. 115/2017/ND-CP details the procedures, formalities, and amount of money that commercial entities must pay to ensure enforcement; the temporary retention, refund, and submission to the state budget of the amount paid.

DECREE

DETAILING THE PROCEDURES AND REQUIREMENTS FOR COMMERCIAL LEGAL ENTITIES TO PAY MONEY AS SECURITY FOR ENFORCEMENT OF JUDGMENTS; TEMPORARY WITHHOLDING, REFUND, AND DEPOSIT INTO THE STATE BUDGET OF FUNDS ALREADY PAID

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Criminal Procedure Code No. 101/2015/QH13 dated November 27, 2015;

Pursuant to the Criminal Code No. 100/2015/QH13 amended and supplemented by Law No. 12/2017/QH14;

Pursuant to Resolution No. 41/2017/QH14 of the National Assembly on the implementation of the Criminal Code No. 100/2015/QH13 amended and supplemented by Law No. 12/2017/QH14 and the effectiveness of the Criminal Procedure Code No. 101/2015/QH13, the Law on Organizational Structure of Criminal Investigation Agencies No. 99/2015/QH13, and the Law on Temporary Detention and Pretrial Detention No. 94/2015/QH13;

At the proposal of the Minister of Justice;

The Government promulgates this Decree detailing the procedures and requirements for commercial legal entities to pay money as security for enforcement of judgments; temporary withholding, refund, and deposit into the State budget of funds already paid as security for enforcement of judgments.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Decree stipulates the procedures and requirements for commercial legal entities subject to criminal investigation, prosecution, and trial to pay money as security for enforcement of judgments (including enforcement of fines and enforcement of compensation obligations); temporary withholding, refund, and deposit into the State budget of funds already paid as security for enforcement of judgments.

Article 2. Applicability

This Decree applies to commercial legal entities subject to coercive measures requiring payment of a sum of money as security for enforcement of judgments, judicial organs, prosecutors, civil enforcement agencies, and other relevant organizations and individuals.

Article 3. Principles for Implementing Payment of Money as Security for Enforcement of Judgments, Refund, and Deposit into the State Budget of Funds Already Paid

1. Payment of money as security for enforcement of judgments, refund, and deposit into the State budget of funds already paid shall only be carried out based on decisions made by investigative agencies, public prosecutors, courts, and civil enforcement agencies with jurisdiction.

2. Payment of money, temporary withholding, refund, and deposit into the State budget of funds already paid by commercial legal entities as security for enforcement of judgments must be implemented strictly in accordance with the procedures and requirements set forth in this Decree and other relevant laws.

Chapter II

AMOUNTS TO BE PAID, PROCEDURES AND REQUIREMENTS FOR PAYMENT OF MONEY AS SECURITY FOR ENFORCEMENT OF JUDGMENTS

Article 4. Amounts to be Paid as Security for Enforcement of Judgments

1. Money to be paid as security for enforcement of judgments may be Vietnamese dong or foreign currency legally owned by commercial legal entities subject to criminal investigation, prosecution, and trial.

Money to be paid as security for enforcement of judgments includes money to be paid as security for enforcement of fines and money to be paid as security for enforcement of compensation obligations.

2. The amount of money to be paid as security for enforcement of fines shall be determined by judicial organs with jurisdiction in each specific case but not less than 50% and not more than the maximum fine prescribed in the applicable provision used to initiate criminal proceedings, investigate, prosecute, and try the commercial legal entity.

3. The amount of money to be paid as security for enforcement of compensation obligations shall be determined as follows:

a) If the applicable provision used to initiate criminal proceedings, investigate, prosecute, and try the commercial legal entity specifies the level of property damage, the amount of money to be paid as security for enforcement of compensation obligations shall be determined by judicial organs with jurisdiction in each specific case but not less than 50% and not more than the maximum level of property damage specified in that provision;

b) If the applicable provision used to initiate criminal proceedings, investigate, prosecute, and try the commercial legal entity does not specify the level of property damage, depending on the specific circumstances, the judicial organ handling the case may apply measures provided for by law to determine the level of damage as the basis for deciding the specific amount of money that the commercial legal entity must pay as security for enforcement of compensation obligations. The amount of money to be paid shall be determined in each specific case but not more than the actual level of damage already determined.

Article 5. Procedures and formalities for depositing money to ensure enforcement of judgments

1. Within seven days from the date of receipt of the decision of the competent investigative agency regarding the application of the measure to compel payment of a sum of money to ensure enforcement of judgment, the commercial entity subject to this measure must complete the payment.

In cases where it is impossible to fulfill the obligation to pay the amount of money to ensure enforcement of judgment within the prescribed time due to force majeure or other objective obstacles, the deadline will be recalculated from the moment such force majeure or other objective obstacle ceases to exist.

2. The payment to ensure enforcement of judgment may be made through bank transfer or cash deposit into the temporary holding account opened by the investigating agency or civil enforcement agency at the State Treasury or financial agency in the military.

In cases where the commercial entity makes the payment in foreign currency, when making the payment, it must base on the inter-bank exchange rate between Vietnamese dong and that foreign currency at the time of payment to deposit an equivalent amount of foreign currency corresponding to the amount of money required to be paid to ensure enforcement of judgment according to the decision of the competent investigative agency.

3. The procedures for depositing money to ensure enforcement of judgment at the bank are stipulated as follows:

a) Immediately upon receipt of the decision of the competent investigative agency regarding the application of the measure to compel payment of a sum of money to ensure enforcement of judgment, the commercial entity shall carry out the payment by bank transfer or cash deposit through the bank's transaction channels to ensure enforcement of judgment.

The bank where the commercial entity makes the payment to ensure enforcement of judgment issues a payment receipt or transfer receipt at the request of the commercial entity for submission to the investigative agency that issued the decision to apply the measure to compel payment of a sum of money to ensure enforcement of judgment;

b) Immediately upon receipt of the payment to ensure enforcement of judgment, the State Treasury must send a notification of receipt to the agency that is the holder of the temporary holding account.

4. The procedures for depositing money to ensure enforcement of judgment at the State Treasury are stipulated as follows:

a) The legal representative or authorized representative of the commercial entity prepares four copies of the cash deposit slip in case of cash deposit or four copies of the payment authorization form in case of account deduction at the State Treasury, as prescribed, to be submitted to the State Treasury as the basis for accounting entry into the temporary holding account of the Investigating Agency or Civil Enforcement Agency;

b) After completing the payment procedure, the State Treasury retains one copy of the cash deposit slip or payment authorization form, hands over two copies to the payer, and sends one copy to the agency that is the holder of the temporary holding account. The legal representative or authorized representative of the commercial entity is responsible for submitting one copy to the agency that issued the decision to apply the measure to compel payment of a sum of money to ensure enforcement of judgment.

5. For cash deposits made at financial agencies in the Military, the receiving agency is responsible for preparing a receipt for the cash deposit, with signatures confirming the payment by the payer, the receiver, and the representative of the agency that issued the decision to apply the measure to compel payment of a sum of money to ensure enforcement of judgment.

The receipt is prepared in three copies, one copy given to the representative of the agency issuing the Decision to apply the measure to compel payment to ensure enforcement of judgment, one copy given to the payer, and one copy retained by the financial agency that prepared the receipt.

Financial agencies in the Military are responsible for depositing the amount of money paid by the commercial entity to ensure enforcement of judgment into the temporary holding account at the State Treasury.

Chapter III

TEMPORARY HOLDING, REFUND, PAYMENT TO THE STATE BUDGET OF THE AMOUNT DEPOSITED TO ENSURE ENFORCEMENT OF JUDGMENTS

Article 6. Temporary Detention of Amounts Paid to Ensure Enforcement of Judgments

1. The temporary detention of amounts paid to ensure enforcement of judgments shall be carried out as follows:

a) Amounts paid to ensure enforcement of judgments during the investigation and prosecution stages shall be temporarily detained in a temporary account opened at the State Treasury of the investigative agency conducting the proceedings for the case;

b) Amounts paid to ensure enforcement of judgments during the trial stage shall be temporarily detained in a temporary account opened at the State Treasury of the civil enforcement agency at the same level where the court conducting the first-instance trial has its headquarters;

c) Amounts paid to ensure enforcement of judgments according to the decision of the investigative agency in the military, Military Procuracy, and Military Court shall be temporarily detained in the corresponding financial agency's temporary account within the Military opened at the State Treasury.

2. After the court issues a decision to bring the case to trial, the amounts paid to ensure enforcement of judgments that are temporarily detained in the temporary account of the investigative agency must be transferred into the temporary account of the civil enforcement agency at the same level as the court conducting the first-instance trial according to the provisions of the law. This transfer must be notified to the court conducting the first-instance trial.

Article 7. Refund of Amounts Paid to Ensure Enforcement of Judgments

1. The State Treasury and the financial agencies in the military shall implement the refund of part or all of the amounts paid by commercial entities to ensure enforcement of judgments according to the decision of the competent investigative agency.

The refund of foreign currency paid by commercial entities to ensure enforcement of judgments shall be carried out according to the principle of returning the exact type and amount of foreign currency paid; in cases of partial refund, after deducting state budget revenue according to the law, the remaining foreign currency must be returned to the commercial entity.

2. The refund of amounts paid by legal persons to ensure enforcement of judgments managed by the State Treasury shall be implemented as follows:

a) After receiving the decision of the competent investigative agency regarding the refund of part or all of the amounts paid to ensure enforcement of judgments, the commercial entity sends a request for refund to the holder of the temporary account where the amounts paid to ensure enforcement of judgments are being temporarily detained. Attached to the request is the decision of the competent investigative agency regarding the refund of money. In the request, it must clearly specify whether the refund will be made by bank transfer or in cash. If the refund is by bank transfer, the name of the account to which the funds will be transferred must be specified; if the refund is in cash, the full name, ID number of the person receiving the money must be specified;

b) Within three days from the date of receipt of the request for refund from the commercial entity, the agency holding the temporary account is responsible for preparing the refund document to send to the State Treasury to refund the commercial entity the amount according to the decision of the competent investigative agency regarding the refund of money, including three copies of the Cash Withdrawal Form (for cash refunds) or three copies of the Payment Order (for bank transfers to the commercial entity's account at a bank); in cases of bank transfers to the commercial entity's account at the State Treasury, four copies of the Payment Order must be prepared;

c) Within three days from the date of receipt of the refund document for amounts paid to ensure enforcement of judgments, the State Treasury shall carry out the refund according to the refund document of the holder of the temporary account to the commercial entity's account or pay in cash according to current laws.

After the refund, the State Treasury shall hand over one copy of the refund document to the commercial entity receiving the refund (in cases where the commercial entity has an account at the State Treasury); two copies of the refund document to the holder of the temporary account. The holder of the temporary account is responsible for sending one copy of the refund document to the agency that decided on the refund of the amounts paid to ensure enforcement of judgments, and one copy of the refund document is retained at the State Treasury.

3. The refund of amounts paid by legal persons to ensure enforcement of judgments managed by the competent financial agency in the Military shall be implemented as follows:

a) After receiving the decision of the competent investigative agency regarding the refund of part or all of the amounts paid to ensure enforcement of judgments, the commercial entity sends a request for refund to the investigative agency handling the case or the civil enforcement agency. Attached to the request is the decision of the competent investigative agency regarding the refund of money. In the request, it must clearly specify whether the refund will be made by bank transfer or in cash. If the refund is by bank transfer, the name of the account to which the funds will be transferred must be specified; if the refund is in cash, the full name, ID number of the person receiving the money must be specified;

b) Within three days from the date of receipt of the request for refund from the commercial entity, the agency receiving the request must prepare a refund application according to the decision of the competent investigative agency regarding the refund of money and send it to the financial agency in the Military.

The application includes: A request for the financial agency in the Military to refund the amounts paid to ensure enforcement of judgments, specifying whether the refund will be made by bank transfer or in cash; the decision of the competent investigative agency regarding the refund of part or all of the amounts paid to ensure enforcement of judgments and the Record of Handover of Amounts Paid to Ensure Enforcement of Judgments;

c) Based on the application, the financial agency in the Military shall process the refund to the commercial entity's account or pay in cash according to current laws.

In cases where the refund is made in cash, a record must be established with signatures of both the refunding party (representative of the financial agency in the Military) and the recipient (legal representative or authorized representative of the commercial entity). The record is made in three copies, one copy retained by the refunding party, one copy by the recipient, and one copy sent to the agency that decided on the refund of the amounts paid to ensure enforcement of judgments to be kept in the case file.

Article 8. Deposit into the State Budget the amount deposited to ensure enforcement of judgments

1. The amount deposited to ensure enforcement of judgments shall be deposited into the State Budget in cases where the decision on enforcement of judgments issued by the competent civil enforcement agency clearly states that this amount shall be deposited into the State Budget to enforce monetary penalties or to fulfill the obligation to compensate for damages to the State according to court judgments and decisions that have taken legal effect.

2. Within three days from the date the enforcement judgment decision takes effect, the agency which is the temporary account holder responsible for temporarily holding the amount deposited to ensure enforcement of judgments shall send three copies of the payment authorization form to withdraw from the temporary account to deposit into the State Budget, along with this enforcement judgment decision, to the National Treasury.

3. Upon receipt of the payment authorization form accompanied by the enforcement judgment decision stipulated in Clause 2 of this Article, the National Treasury shall record the deposit into the State Budget in accordance with the provisions of the law.

After recording the deposit into the State Budget, the National Treasury retains one copy of the voucher and hands over two copies of the voucher to the temporary account holder. The temporary account holder retains one copy of the voucher and sends one copy of the voucher to the agency that issued the decision regarding the refund of the amount deposited to ensure enforcement of judgments.

Article 9. Responsibilities of the National Treasury and financial agencies within the Military in temporarily holding, refunding, and depositing into the State Budget the amount deposited to ensure enforcement of judgments

1. Accept and temporarily hold the amount deposited to ensure enforcement of judgments in accordance with this Decree and other relevant laws.

2. Deposit into the State Budget or refund the amount that commercial entities have deposited to ensure enforcement of judgments in accordance with this Decree.

3. Closely cooperate with competent investigative agencies and the agency which is the temporary account holder in implementing measures to compel the payment of an amount to ensure enforcement of judgments; facilitate the refund of the amount deposited to ensure enforcement of judgments.

Chapter IV

IMPLEMENTING PROVISIONS

Article 10. Effective Date

This Decree takes effect from January 1, 2018.

Article 11. Responsibility for Implementation

Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of provincial and centrally governed city People's Committees, and entities subject to this Decree are responsible for its implementation./.

PRIME MINISTER

PRIME MINISTER

(signed)

Nguyen Xuan Phuc