Joint Circular No. 12/2001/TTLT-BTP-VKSTC guiding the implementation of certain provisions of laws on civil enforcement proceedings

JOINT CIRCULAR

Guidance on Implementing Certain Provisions of Civil Enforcement Law

law on civil enforcement proceedings

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To implement certain provisions of civil enforcement law and meet the practical requirements of civil enforcement work, the Ministry of Justice and the Supreme People's Procuracy have jointly issued guidance on certain provisions of civil enforcement law as follows:

I. DETERMINING THE "CASE" OF ENFORCEMENT:

1. In order to unify the establishment of case files and statistics on enforcement, each enforcement decision shall be considered as one "case" of enforcement.

For judgments and decisions that have taken legal effect from the court (hereinafter referred to collectively as judgments and decisions), the head of the enforcement agency may issue one or more enforcement decisions, specifically:

a. For judgments and decisions with multiple clauses, including one or more clauses within the scope of proactive enforcement and one or more clauses within the scope of enforcement upon request, the head of the enforcement agency shall issue a single enforcement decision for all clauses within the scope of proactive enforcement, while for the clauses subject to enforcement upon request, depending on the specific circumstances and based on the number of enforcement requests, the head of the enforcement agency may issue one or more enforcement decisions.

b. For judgments and decisions involving multiple parties with joint rights and obligations, the head of the enforcement agency shall issue a single enforcement decision for those parties with joint rights and obligations.

2. The following cases are determined as not having conditions for enforcement:

a. The person subject to enforcement does not have legal assets or income for enforcement.

b. The person subject to enforcement has assets but their value is insignificant for enforcement.

c. The person subject to enforcement only has assets that have been seized and auctioned but not sold, and the person entitled to enforcement does not agree to accept them for enforcement, and the person subject to enforcement has no other valuable assets.

d. The person subject to enforcement has assets but they fall under the category of assets that cannot be seized or have not yet been processed according to the law. In cases where the assets have not yet been processed (such as undivided inheritance, jointly owned assets, assets in dispute over ownership...), the enforcement agency has advised the person entitled to enforcement and interested parties to initiate litigation to request the court to resolve the matter, but the parties have not initiated litigation or there is no court decision regarding the handling of such assets.

e. The person subject to enforcement has the obligation to transfer specific items, but those items have been lost or damaged and both parties cannot agree on a payment method, the enforcement agency has advised the parties to initiate litigation to request the court to resolve the compensation issue, but there is no court decision on this matter.

f. The judgment or decision of the court is unclear, contains errors in figures or mistakes making it unenforceable, the enforcement agency has issued a document requesting the People's Procuracy and the competent court to interpret or file a protest to rectify the deficiencies in the judgment or decision of the court, but there has been no result.

g. The judgment or decision of the court involves the obligation to deliver land, but on the land there are immovable properties built legally before the judgment or decision of the court was made, and the judgment or decision does not address the handling of these immovable properties, preventing the enforcement agency from implementing the delivery of land in accordance with the content of the judgment or decision of the court. In this case, the enforcement agency must issue a document to request the People's Procuracy and the competent court to file a protest to rectify the deficiencies in the judgment or decision of the court.

h. The enforcement of obligations is closely linked to personal status, if due to objective reasons (illness, working abroad for one year or more...) the person subject to enforcement cannot personally fulfill the obligations or the address of the person subject to enforcement cannot be determined.

i. Other cases due to objective reasons that prevent the enforcement agency from enforcing.

To determine that a judgment or decision of the court does not have conditions for enforcement, within two months from the date of issuing the enforcement decision, the enforcement agency must directly verify the enforcement conditions of the person subject to enforcement. The verification must be documented and confirmed by local authorities, agencies, or organizations where the person subject to enforcement resides, works, or has assets.

When determining that a case does not have conditions for enforcement, the enforcement agency shall issue appropriate decisions based on the specific circumstances: suspension, temporary cessation, or returning the enforcement request. In cases of proactive enforcement, the enforcement agency must establish a separate tracking record and conduct at least one verification of the enforcement conditions of the parties every quarter.

II. TIME LIMIT FOR CIVIL ENFORCEMENT:

When applying the provisions on the time limit for civil enforcement, the enforcement agency should pay attention to the following points:

1. The time limit for civil enforcement starts from the date the judgment or decision becomes legally effective. If the judgment or decision includes parts that are appealed or protested, and the court's review of the appeal or protest does not affect the other parts, then the time limit for enforcement of the non-appealed or non-protested parts still starts from the date the judgment or decision becomes legally effective.

For judgments and decisions that can be enforced immediately even though they have not yet become legally effective, the enforcement agency has the right to issue an enforcement decision, and the person entitled to enforcement has the right to submit a request during the period when the judgment or decision has not yet become legally effective, but the time limit for enforcement still starts from the date the judgment or decision becomes legally effective.

2. If the judgment or decision specifies a specific deadline for the person subject to enforcement to fulfill the obligation, the time limit for enforcement starts from the date the obligation is due. For judgments and decisions that are enforced periodically, the time limit for enforcement applies to each period.

3. The time limit for enforcing judgments and decisions that became legally effective before January 1, 1990 (the date the Civil Enforcement Law of 1989 took effect) shall be implemented as follows:

- If they have not been enforced, the time limit for enforcement starts from January 1, 1990.

- If before January 1, 1990, the judgment or decision had been issued for execution but had not yet been executed or had only been partially executed, the enforcement agency must continue to organize its execution;

- If after January 1, 1990, the request for enforcement was returned due to the person subject to enforcement not having the conditions to enforce the judgment or decision, the statute of limitations for enforcement shall be calculated from the date when the person subject to enforcement has the conditions to enforce.

III. AGREEMENT AND VOLUNTARY ENFORCEMENT:

1. During the enforcement process, only individuals or private economic organizations have the right to agree with each other on the content of the enforcement, but such agreements must not contravene the law and social morals. In cases where the parties agree to not request the enforcement agency to enforce part or all of the judgment or decision of the Court, the enforcement agency shall record the content of the agreement in a protocol and issue a decision to suspend enforcement regarding that part.

2. During the enforcement process, the parties may agree with each other on the time, place, and method of enforcement. The enforcement agency must record the content of the agreement in a protocol and allow the parties to voluntarily enforce the agreement. If the parties do not voluntarily enforce according to the agreed content, the enforcement agency shall enforce according to the content of the judgment or decision of the Court.

IV. INVENTORYING, HANDING OVER FOR SAFEKEEPING, AND DISPOSAL OF ASSETS FOR ENFORCEMENT:

1. Inventorying assets:

a. For assets that require registration of ownership or use rights, if there is evidence to determine that the person subject to enforcement has legally purchased or received as a gift (with a legal purchase contract, confirmation from the owner...) but has not completed the registration procedures, the Enforcement Officer still has the right to inventory these assets to ensure enforcement.

After the judgment or decision of the Court, if the person subject to enforcement transfers assets under their ownership, the Enforcement Officer has the right to inventory these assets and issue a document requesting the competent authority to cancel the transaction. The person entitled to enforcement, those with related rights and obligations, have the right to request the competent authority or initiate a lawsuit to request the Court to cancel the transaction.

b. The inventorying of housing shall only be carried out when other assets are insufficient for enforcement and the amount to be enforced is relatively large, requiring the inventorying of housing, except in cases where the person subject to enforcement requests the inventorying of housing to ensure enforcement. Determining whether the amount to be enforced is relatively large should be based on the living standards of each locality, the relationship between the amount to be enforced and the value of the house at the time of inventorying.

In certain special cases, even though the person subject to enforcement does not have a certificate of ownership or land use rights, if there is evidence indicating that the house was built and used stably by the person subject to enforcement without disputes, not within a planned area for relocation, and eligible for land use rights and house ownership, the enforcement agency can inventory the asset to ensure enforcement.

c. Determining common tools and daily-use items that cannot be inventoried should be based on the minimum labor conditions for each profession or the minimum daily living conditions in the locality where the person subject to enforcement resides, and these items have low value.

Common necessary labor tools are minimal production tools with low value such as: plows, harrows, shovels, spades, cargo bicycles, pedicabs... Tools with higher value such as motorcycles, cars, boats, tractors, rice mills... will still be inventoried and sold to ensure enforcement, and a portion of the proceeds will be retained to enable the person subject to enforcement to replace them with another tool.

Common necessary daily-use items are items serving the minimum daily living conditions of the person subject to enforcement and their family such as: pots, dishes, beds, cabinets, tables, chairs, and other common items.

Items for daily use or personal belongings with high value such as televisions, refrigerators, air conditioners, washing machines, computers, gold rings... will still be inventoried to ensure enforcement.

d. Inventorying assets that have been mortgaged or pledged:

For assets of the person subject to enforcement that have been legally mortgaged or pledged in civil transactions, if there are no other assets and the value of the asset is greater than the total obligation guaranteed by the mortgage or pledge contract, including related costs for the mortgaged or pledged asset plus costs for inventorying and auctioning the asset, the Enforcement Officer may inventory the asset to ensure enforcement even if the mortgage or pledge contract has not yet matured, but before inventorying the asset, the Enforcement Officer must notify the mortgagee or pledgee.

In cases of inventorying assets, if disputes arise related to the inventoried asset, the enforcement agency must explain to the parties with rights and interests related to the asset about their right to initiate a lawsuit within the prescribed period. If the case is accepted by the Court, the disposal of the inventoried asset can only be carried out after the Court's decision becomes legally effective.

2. Handing over inventoried assets for safekeeping.

a. After inventorying the asset, the Enforcement Officer hands it over to the person subject to enforcement, their relatives, or the person currently managing or using the asset for safekeeping. If the person subject to enforcement, their relatives, or the person currently managing or using the asset refuse to keep the asset or if it is suspected that the party may dispose of or destroy the asset, the Enforcement Officer may hand it over to a competent authority or hire someone to keep it.

In cases of handing over or hiring for safekeeping as mentioned above, a protocol must be established to clearly define the condition of the asset.

b. For types of assets that must be managed and kept by other competent authorities, such as gold, silver, precious metals, gems, cultural works, artworks..., after inventorying, the enforcement agency hands over these types of assets to the competent authorities for management and keeping in accordance with the law.

3. Disposal of inventoried assets:

a. After the seizure and valuation, if the person subject to enforcement and the person entitled to enforcement agree with each other on accepting the seized property to satisfy the enforcement obligation, then the enforcement agency shall transfer the seized property to the person entitled to enforcement to offset against the enforcement obligation.

b. For perishable assets such as fresh vegetables, fresh food..., after the seizure, the enforcement agency shall organize an immediate sale with the participation of representatives from the same-level People's Procuracy, the People's Committee of the commune where the asset is sold, and must prepare a record of the sale.

c. In cases of returning a house, transferring a house to the buyer through auction procedures, or the person entitled to enforcement accepting the house for enforcement, the enforcement agency shall require the person subject to enforcement and their family to move out the property themselves. If the person subject to enforcement and their family do not voluntarily comply, then the enforcement agency shall prepare a detailed list of the types of property, remove the property from the house, and request the person subject to enforcement and their family to reclaim the property. If the person subject to enforcement and their family refuse to reclaim the property, the enforcement agency shall hire storage services, notify and set a suitable period (at least three months) for the person subject to enforcement and their family to reclaim the property. After the set period, if the person subject to enforcement and their family do not reclaim the property, the enforcement agency shall handle these properties as follows:

- For valuable assets, the enforcement agency shall organize a public auction and deposit the proceeds from the sale into a bank while notifying the person subject to enforcement to claim the sale proceeds. After one year from the date of notification, if the person subject to enforcement does not come to claim the sale proceeds, the enforcement agency shall remit the amount to the State Treasury for public revenue.

- For damaged assets, the enforcement agency shall proceed to destroy them according to the provisions of the law. As for documents, certificates, diplomas, or items of spiritual value, the enforcement agency shall continue to hire storage services.

The costs of selling and storing assets in the above cases shall be borne by the person subject to enforcement.

d. Before auctioning jointly-owned assets of the person subject to enforcement with others, co-owners have the right to purchase the asset preferentially within three months for immovable property and one month for movable property at the price determined by the Asset Valuation Board. Upon expiration of the preferential period, if the co-owners do not purchase the asset, it shall be auctioned according to the general procedure.

đ. In cases where the asset has been put up for auction at least twice but has not been sold, the enforcement agency shall require the person entitled to enforcement to accept the asset for enforcement. The acceptance of the asset must ensure the principle that the person accepting the asset can only enjoy the corresponding value of the asset based on the priority order and the ratio of payment for enforcement as stipulated in the Civil Enforcement Ordinance and Point g, Section 3, Part IV of this Circular, provided that the asset is sold.

e. In cases where the enforcement agency entrusts the sale of assets through public auction to the Auction Center, the enforcement agency shall be responsible for informing the parties and monitoring the implementation of the contract by the Auction Center.

g. Payment of proceeds from the sale of assets:

- At the time of payment of the enforcement obligation, the proceeds from the sale of the assets of the person subject to enforcement shall be paid to all persons entitled to enforcement who have submitted requests for enforcement in accordance with the order and ratio prescribed in the Civil Enforcement Ordinance, regardless of the different times when the requests were made.

- In cases where there are multiple persons entitled to enforcement, but only some have submitted requests for enforcement, while the person subject to enforcement has only one valuable asset (house, land...), the proceeds from the sale of the asset shall be temporarily deposited into a bank account corresponding to the ratio of the other persons entitled to enforcement who have not yet submitted requests, and simultaneously notify and set a period not exceeding three months for the other persons entitled to enforcement regarding their right to submit requests for enforcement. Upon expiration of the notification period, if the enforcement agency does not receive requests for enforcement from the other persons, the remaining amount shall be paid to those who previously submitted requests for enforcement.

- The proceeds from the sale of mortgaged, pledged assets legally or assets that have been declared seized by the Court to secure a specific obligation shall be prioritized to settle that obligation.

- If the person subject to enforcement has no other valuable assets except a house, which is the sole place of residence for the person subject to enforcement and their family, then upon seizure and auction, depending on the specific conditions of the parties, after reaching an agreement with the same-level People's Procuracy, the enforcement agency may retain a portion of the proceeds to provide living accommodation for the person subject to enforcement and their family.

- In cases where only the wife or husband is the person subject to enforcement, if the wife or husband does not initiate a lawsuit requesting the Court to divide the joint property, then upon selling the asset, the enforcement agency shall return the proceeds from the sale of the asset to the wife or husband according to the provisions of the Marriage and Family Law (excluding costs related to seizure and auction).

V. ENFORCEMENT OF JOINT OBLIGATIONS AND THE OBLIGATIONS OF THE DECEASED PERSON SUBJECT TO ENFORCEMENT:

1. In cases where the judgment or decision of the Court does not clearly specify the individual obligations of each person in a joint liability, the enforcement agency shall require one or more persons capable of fulfilling the enforcement obligation to fulfill the entire joint obligation.

2. In cases where the judgment or decision of the Court clearly specifies the individual obligations of each person in a joint liability and they all have the ability to fulfill the enforcement obligation, the enforcement agency shall require each person to fulfill their respective obligations. If one of the persons with joint liability does not have the ability to fulfill the enforcement obligation, the enforcement agency shall require the persons capable of fulfilling the enforcement obligation to fulfill the obligation on behalf of that person.

3. A person who has performed part of the enforcement obligation on behalf of another person has the right to request other jointly liable persons to repay the portion of the obligation that they have performed on their behalf, in accordance with Article 304 of the Civil Code.

4. The execution of property obligations of a judgment debtor who has died shall be carried out in accordance with the provisions of Article 640 of the Civil Code.

VI. SUPERVISION OF COMPLIANCE WITH LAWS AND COOPERATION IN ENFORCEMENT WORK:

1. The Public Prosecutor's Office shall supervise compliance with laws in the auction sale of assets for enforcement in accordance with Articles 19, 20, and 21 of the Law on Organization of the People's Public Prosecutor's Office and the Ordinance on Civil Enforcement.

Within seven days from signing a contract with the Center for Auction Sale of Assets for Enforcement, the enforcement agency must notify the same-level Public Prosecutor's Office to carry out supervision according to its functions.

2. Cooperation in enforcement work:

a. Annually, the leadership of the Supreme People's Public Prosecutor's Office and the Ministry of Justice shall organize at least one meeting at the end of September or beginning of October to review experiences, discuss measures to address shortcomings, unify guidance and implementation methods for enforcement work.

b. Assign the Department of Supervision of Enforcement and the Civil Enforcement Management Department to cooperate in supervising and inspecting civil enforcement work in localities at least once a year.

c. Assign the Department of Supervision of Enforcement and the Civil Enforcement Management Department to unify statistical models and data for reporting on enforcement outcomes in March and October each year for both sectors to report to the National Assembly.

d. Leaders of the People's Public Prosecutor's Office and heads of enforcement agencies in localities must regularly coordinate to effectively perform enforcement work and supervision of enforcement.

e. In cases where the People's Public Prosecutor's Office withdraws enforcement files to perform supervisory functions, it must be done in writing. Within thirty days from receiving the file, the People's Public Prosecutor's Office must notify the supervisory results of the case and return the file to the enforcement agency for continued enforcement proceedings. If the case is complex and requires consensus among relevant sectors, the aforementioned period shall not exceed sixty days.

VII. IMPLEMENTATION:

This Circular takes effect 15 days from the date of signature.

2. During the implementation process, if there are difficulties, they must be promptly reported to the Ministry of Justice and the Supreme People's Public Prosecutor's Office for resolution measures./.