Joint Circular No. 184/2011/TTLT-BTC-BTP guiding the financial management mechanism for enforcement costs of civil execution

JOINT CIRCULAR

Guidelines on the financial management mechanism for enforcement costs

organizing compulsory execution of civil judgments

________________

Pursuant to the State Budget Law dated December 16, 2002;

Pursuant to the Civil Enforcement Law dated November 14, 2008;

Pursuant to Decree No. 60/2003/NĐ-CP dated June 6, 2003 of the Government detailing and guiding the implementation of the State Budget Law;

Pursuant to the Decree No. 118/2008/NĐ-CP dated November 27, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

Pursuant to Decree No. 93/2008/NĐ-CP dated August 22, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to Decree No. 58/2009/NĐ-CP dated July 13, 2009 of the Government detailing and guiding the implementation of certain provisions of the Civil Execution Law regarding civil execution procedures;

Pursuant to Decree No. 17/2010/NĐ-CP dated March 4, 2010 of the Government on auctioning assets;

Jointly issued by the Ministry of Finance and the Ministry of Justice, guidelines on the financial management mechanism for enforcement costs are as follows:

Article 1. General Provisions

1. Object and scope of application: These joint circulars guide the content of expenditures, expenditure levels, sources of funds for compulsory execution, advance payment procedures, refund of advance payments for enforcement costs, budget preparation, compliance with and settlement of enforcement cost funds carried out by civil enforcement agencies.

2. Civil enforcement agencies must be responsible for managing, using, and settling enforcement cost funds for organizing compulsory execution in accordance with current regulations and the provisions of these joint circulars.

Article 2. Content of enforcement costs

1. The person subject to enforcement shall bear the following enforcement costs:

a) Costs for notification of enforcement:

- Costs for notification through mass media (television, radio, press).

- Allowances for those directly implementing enforcement notifications (enforcement officers, local government representatives, social organization representatives, and other relevant parties).

b) Costs for purchasing raw materials, fuel, renting equipment, security, medical, fire prevention, explosion prevention, and other necessary equipment and means for enforcement.

c) Costs for asset valuation, appraisal, revaluation, and auction sales:

- Costs for asset valuation and revaluation:

+ Costs for price assessment and re-assessment: Service fees for price assessment and re-assessment according to contracts with price assessment organizations.

+ Costs related to valuation when the Enforcement Officer conducts asset valuation according to Clause 3, Article 98 of the Civil Execution Law: Allowances for members involved in asset valuation and re-assessment.

+ Appraisal costs: Appraisal fees and legitimate actual expenses for asset appraisal.

- Costs for auction sales:

+ Auction fees and reasonable actual costs for auction sales when the civil enforcement agency authorizes an auction organization to conduct the sale.

+ Rent for venues and means serving the organization of auction sales, publicizing, and announcing auction sales when the civil enforcement agency directly organizes the auction sale to enforce the judgment.

d) Costs for leasing, guarding, and preserving assets; costs for loading, unloading, transporting assets; costs for hiring labor and expenses serving construction, demolition, and measurement for enforcement.

đ) Costs for temporary detention and seizure of assets, documents, and materials:

- Costs for renting security equipment, venues, and other legitimate actual expenses directly serving the implementation of temporary detention and seizure measures.

- Allowances for individuals directly implementing decisions to apply temporary detention and seizure measures.

e) Allowances for Enforcement Officers, other civil servants involved in enforcement work, prosecutors, police, self-defense militia, local government representatives, neighborhood representatives, village chiefs, village elders, and other individuals directly participating in civil enforcement and protecting enforcement.

2. The person entitled to enforcement shall bear the following enforcement costs:

a) Costs for verifying enforcement conditions as stipulated in Clause 1, Article 44 of the Civil Execution Law in cases where the person entitled to enforcement requests the Enforcement Officer to verify enforcement conditions, the person entitled to enforcement shall bear the following costs:

- Travel expenses for individuals involved in verifying enforcement conditions.

- Allowances for individuals involved in the verification process.

- Other direct expenses serving the verification of enforcement conditions.

b) Costs for revaluation of assets as stipulated in Point c, Clause 1, Article 2 of these joint circulars if the person entitled to enforcement requests a revaluation, except in cases of revaluation due to violations in the original valuation.

c) Part or all of the costs for construction and demolition as specified in the judgment or decision requiring the person entitled to enforcement to bear such costs.

If the person entitled to enforcement requests the civil enforcement agency to apply enforcement security measures incorrectly, that person must settle the actual costs incurred from enforcing the decision to apply such measures.

3. The state budget guarantees the following enforcement costs, including:

a) Costs for pre-enforcement coordination meetings organized by the Enforcement Officer with relevant agencies before enforcement.

b) Costs for arranging interpreters and translators in cases where the party is a member of a minority ethnic group in Vietnam who does not know Vietnamese and in cases where the party is a foreigner.

c) Costs for revaluation of assets as stipulated in Point c, Clause 1, Article 2 of these joint circulars in cases of violations in the original valuation as provided in Point a, Clause 1, Article 99 of the Civil Execution Law.

d) Fees and costs for unsold auctioned assets as stipulated in Clause 3, Article 43 of Decree No. 17/2010/NĐ-CP dated March 4, 2010 of the Government.

đ) Costs for verifying enforcement conditions as stipulated in Point a, Clause 2, Article 2 of these joint circulars in cases of proactive enforcement as provided in Clause 1, Article 44 of the Civil Execution Law.

e) Costs for enforcement in cases where the person subject to enforcement or the person entitled to enforcement is exempted or reduced from enforcement costs according to Article 32 of Decree No. 58/2009/NĐ-CP dated July 13, 2009 of the Government.

g) Enforcement costs in cases where the money cannot be collected from the person subject to enforcement. The Ministry of Justice shall specify these cases.

h) Costs incurred while organizing enforcement but must be suspended or terminated for the following reasons:

- Due to force majeure events as stipulated in point a, Clause 3, Article 2 of Decree No. 58/2009/NĐ-CP dated July 13, 2009 of the Government;

- In cases where the head of the civil enforcement agency issues a decision to suspend enforcement pursuant to points a, b, d, đ, Clause 1, Article 50 of the Civil Enforcement Law.

For cases of suspension or termination due to subjective reasons of the person entitled to enforcement or the person subject to enforcement, the enforcement costs up to the time of suspension or termination shall be borne by the party causing such suspension or termination.

i) Expenses for applying measures to temporarily seize papers and documents of the person subject to enforcement when the enforcement agent is exempted or granted a reduction in enforcement costs according to the law or in cases where the money cannot be collected from the person subject to enforcement.

k) All enforcement costs and valuation costs for assets already carried out if the competent authority revokes the entire enforcement process.

Article 3. Levels of enforcement costs:

1. Costs for members participating in meetings to discuss enforcement, members attending asset valuation and revaluation:

a) Chairperson: VND 100,000/person/day;

b) Member: VND 70,000/person/day.

2. Allowances for those directly involved in enforcement:

a) Enforcement officers, other civil servants engaged in enforcement work, prosecutors, police officers, self-defense militia members, local government representatives directly participating in enforcement actions:

- Chairperson: VND 100,000/person/day for participation in enforcement;

- Other participants: VND 70,000/person/day for participation in enforcement.

b) Representatives of residential wards, village chiefs, village elders, and other individuals mobilized to participate in civil enforcement when necessary: VND 70,000/person/day for participation in enforcement.

3. Allowances for those directly implementing enforcement notices, verifying enforcement conditions; those directly implementing decisions on temporary seizure and confiscation of assets and documents:

- Enforcement officers, other civil servants engaged in enforcement work, prosecutors, police: VND 50,000/person/day.

- Self-defense militia, representatives of local authorities, and other individuals: VND 70,000/person/day.

4. Travel expenses for those conducting enforcement condition verification: Implemented according to Circular No. 97/2010/TT-BTC dated July 6, 2010 of the Ministry of Finance regarding travel expense regulations and expense regulations for organizing conferences within state agencies and public service units.

5. Translation fees:

- Translation into ethnic languages: Maximum 200% of the general minimum wage, calculated based on the daily wage set by the State for the administrative management area.

- Translation into foreign languages: Implemented according to current regulations of the Ministry of Finance regarding translation cost levels in reception expense systems for foreign guests and international conference and seminar expense systems in Vietnam.

6. Expenses: Hiring means and equipment for enforcement protection; fire prevention and explosion control expenses; hiring venues and means for organizing auctions; appraisal fees; auction sale fees; hiring personnel for guarding and preserving assets; expenses for loading, unloading, and transporting assets and other related expenses for enforcement shall be implemented based on contracts, settlement of contracts, invoices, and legitimate and valid expense receipts according to regulations and approved by the head of the civil enforcement agency.

Article 4. Regarding advance payment for enforcement costs before recovery from parties involved

1. Advance payment for organizing enforcement costs:

a) Enforcement costs shall be paid by the person subject to enforcement, the person entitled to enforcement, or deducted from the proceeds of auctioned assets that have been seized or deducted from the assets of the person subject to enforcement currently held, rented, lent, borrowed, or repaired by others.

While enforcement costs have not yet been recovered from the person subject to enforcement or the person entitled to enforcement, the civil enforcement agency shall advance funds from the budget allocated by the competent authority to cover the expenses for enforcement officers to organize enforcement proceedings.

b) The state budget shall allocate a portion of the budget for the civil enforcement agency to provide for advance payment of enforcement costs. The specific allocation for each civil enforcement agency shall be assigned by the Ministry of Justice after consultation with the Ministry of Finance within the approved budget limit.

2. Procedures for enforcement officers to make advance payments and repay advance payments for enforcement costs:

a) Advance payment for enforcement costs:

Prior to organizing enforcement proceedings, the enforcement officer must prepare and submit a plan for enforcement to the head of the civil enforcement agency for approval (except in cases requiring immediate enforcement). The enforcement plan includes the measures to be applied, time and place of enforcement, enforcement procedures, participating forces (number of personnel, composition), and budget for enforcement-related expenses as stipulated in Article 72 of the Civil Enforcement Law.

The budget for enforcement-related expenses is prepared based on the expenditure items and rates specified in Articles 2 and 3 of this Joint Circular and notified to the parties concerned in accordance with Articles 39, 40, 41, 42, and 43 of the Civil Enforcement Law prior to the enforcement date.

Based on the approved enforcement plan, the enforcement officer shall process the advance payment for enforcement activities from the budget allocated by the state budget to the civil enforcement agency.

The documentation and forms for advance payment of enforcement costs shall be carried out in accordance with Circular No. 91/2010/TT-BTC dated June 17, 2010, issued by the Ministry of Finance, guiding accounting practices for civil enforcement.

b) Refund of advance payment for enforcement costs:

When disposing of assets or recovering money from the person subject to enforcement or the person entitled to enforcement, the enforcement officer must immediately process repayment of the previously advanced enforcement costs to the civil enforcement agency according to Article 47 of the Civil Enforcement Law.

The civil enforcement agency is responsible for monitoring and urging those liable for enforcement costs to recover the advanced funds. At the end of each quarter and year, the civil enforcement agency shall compile and report on the use of advanced funds for organizing enforcement proceedings (amounts advanced, amounts recovered, amounts still outstanding, reasons for non-recovery...) to the superior management agency. The Ministry of Justice will aggregate these reports and submit them to the Ministry of Finance along with the annual budget settlement report.

The documentation and forms for repaying advance payments for enforcement costs and paying enforcement fees have been prescribed in Circular No. 91/2010/TT-BTC dated June 17, 2010, issued by the Ministry of Finance, guiding accounting practices for civil enforcement.

Article 5. Preparation of Budget Estimates, Execution, and Settlement of Enforcement Costs

The preparation of budget estimates, execution, and settlement of enforcement costs are tasks under the state budget to be implemented according to the provisions of the State Budget Law and other guiding documents. This Circular provides detailed guidance on the following points:

1. Establishment of budget projections:

Annually, based on the provisional enforcement funds allocated in previous years' budget expenditures of civil enforcement agencies that have been transferred for continued implementation, civil enforcement agencies shall prepare budget estimates for enforcement costs, which shall be divided into two parts:

a) Provisional enforcement funds when not collected from parties involved: Prepare budget estimates for provisional enforcement funds in cases of provincial or district division; part of the provisional enforcement funds that cannot be recovered from the person subject to enforcement, the person entitled to enforcement, or certain special cases requiring an increase or reduction in the initial provisional amount to be submitted to the Ministry of Justice for consolidation into the annual state budget expenditure according to regulations.

b) State budget funds to cover enforcement costs.

2. Execution and settlement:

a) Allocation of budget estimates: Based on the enforcement task funds already allocated in the annual budget, the Ministry of Justice will allocate and transfer state budget funds for provisional enforcement expenses to civil enforcement agencies within the non-autonomous expenditure portion after receiving the review comments from the Ministry of Finance.

b) Adjustment of budget estimates: In cases where it is deemed necessary to adjust the provisional enforcement budget estimates of civil enforcement agencies that have been assigned, the Ministry of Justice will decide to reallocate budget estimates among civil enforcement agencies within the scope of the provisional enforcement funds allocated by the state budget.

c) Provisional enforcement funds allocated for enforcement expenses can be carried over to the next year for continued implementation.

d) The settlement of civil enforcement enforcement costs shall be carried out in accordance with current regulations.

Article 6. Implementation Organization

This Circular takes effect from February 10, 2012, and replaces Circular Joint No. 68/2006/TTLT-BTC-BTP dated July 26, 2006, issued by the Ministry of Finance and the Ministry of Justice, guiding the financial management mechanism for organizing civil enforcement activities.

The Ministry of Justice is responsible for publicly disclosing administrative procedures and assessing the impact of administrative procedures stipulated in this Circular Joint.

Any difficulties encountered during implementation should be reported to the Ministry of Finance and the Ministry of Justice for study and resolution./.