Decree No. 33/2020/ND-CP Amending and Supplementing Certain Provisions of Decree No. 62/2015/ND-CP dated July 18, 2015 of the Government detailing and guiding the implementation of certain provisions of the Civil Enforcement Law.

DECREE
 

Amending and supplementing certain articles of Decree No. 62/2015/NĐ-CP

dated July 18, 2015 of the Government detailing and guiding the implementation of certain provisions of the Civil Enforcement Act

Civil Enforcement Act dated November 14, 2008

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On the basis of Law on Government Organization June 19, 2015;

Pursuant to the Law organize credit institutions, foreign bank branches are responsible for organizing the implementation of this Circular.Civil Enforcement Act on November 14, 2008;

Pursuant to the Law amending and supplementing certain articles of the Civil Enforcement Act dated November 25, 2014;

At the proposal of the Minister of Justice;

The Government promulgates this Decree amending and supplementing certain articles of Decree No. 62/2015/NĐ-CP dated July 18, 2015 of the Government detailing and guiding the implementation of certain provisions of the Civil Enforcement Act.

Article 1. Amending and supplementing certain articles of Decree No. 62/2015/NĐ-CP dated July 18, 2015 of the Government detailing and guiding the implementation of certain provisions of the Civil Enforcement Act:

The title "People's Artist" shall be awarded to individuals specified in Clause 2 of Article 2 of this Decree who meet the following criteria:

"3. After the expiration of one year from the date when the judgment or decision becomes effective, if the agency, organization, enterprise entitled to enforce the judgment against monetary claims or assets under state ownership does not request enforcement, then the directly managing agency or organization, or the representative body of the agency, organization, or enterprise shall be responsible for directing the request for enforcement."

2. Points b of Clause 3 and point đ of Clause 4, Article 4 shall be amended and supplemented as follows:

a) Point b of Clause 3, Article 4 shall be amended and supplemented as follows:

"b) Objective obstacles include cases where the party did not receive the judgment or decision without fault on their part; the party was on official duty in border or island areas and could not request enforcement within the deadline; accidents or serious illness leading to loss of capacity to understand, or death of the party before a successor can be identified; mergers, consolidations, divisions, separations, dissolutions, changes in form, compulsory transfers, or full transfer of shares or capital contributions where the new entity with the right to request enforcement has not been determined according to the law, or due to the fault of the court, enforcement agency, or other agencies or individuals, resulting in the party being unable to request enforcement within the deadline."

b) Point đ of Clause 4, Article 4 shall be amended and supplemented as follows:

"đ) In cases of mergers, consolidations, divisions, separations, dissolutions, changes in form, compulsory transfers, or full transfer of shares or capital contributions, there must be a legal document proving the period during which the new entity with the right to request enforcement has not been determined."

3. Clauses 2, 3, and 4, Article 5 shall be amended and supplemented as follows:

"2. Where the civil enforcement agency has issued an enforcement decision, the parties still have the right to negotiate enforcement. The agreement must be in writing, clearly stating the time, place, content of the agreement, the deadline for implementation, the legal consequences of non-compliance or partial compliance with the agreed terms, and signed or fingerprinted by all parties involved. The parties are responsible for ensuring that the agreement does not violate prohibitions set forth in the law, contravene social morals, misrepresent facts, infringe upon the legitimate rights and interests of third parties, or aim to evade enforcement fees.

If the parties fail to voluntarily comply with the terms of the agreement, the civil enforcement agency shall base its actions on the enforcement decision and the results of enforcement pursuant to the agreement, and at the request of the parties, organize further enforcement, except in the case provided for in Clause 3 of this Article.

3. Where the civil enforcement agency is organizing enforcement and the parties agree not to request the civil enforcement agency to continue enforcing part or all of the enforcement decision, the head of the civil enforcement agency shall issue a decision to suspend enforcement in accordance with point c of Clause 1 of Article 50 of the Civil Enforcement Act.

If the parties agree to suspend enforcement after the property has been sold at auction or transferred to co-owners or the person entitled to enforcement has agreed to accept the property to offset the enforcement amount but the property has not yet been delivered, such agreement must be approved by the successful bidder, the buyer of the property, or the person accepting the property.

After the issuance of the suspension decision by the head of the civil enforcement agency, the parties shall not have the right to request enforcement again for the suspended content.

4. When requested by the parties, the Enforcement Officer shall witness and sign the agreement document in the cases stipulated in Clauses 2 and 3 of this Article. Witnessing the agreement must take place at the premises of the civil enforcement agency. If the Enforcement Officer discovers that the agreement violates prohibitions set forth in the law, contravenes social morals, misrepresents facts, infringes upon the legitimate rights and interests of third parties, or aims to evade enforcement fees, they shall refuse to witness the agreement but must record the reasons for refusal in the minutes of the agreement."

4. Clause 1 and Clause 3, Article 6 shall be amended and supplemented as follows:

"1. The head of the civil enforcement agency shall issue a single enforcement decision for all items subject to proactive enforcement in a judgment or decision, except in the following cases:

a) If there is a person entitled to receive money or assets, a separate enforcement decision shall be issued for that person.

b) If a person is required to fulfill multiple obligations, a single enforcement decision shall be issued for that person.

c) If a person has both rights and obligations, a single enforcement decision shall be issued for that person.

3. Other revenues for the State that fall under the category of proactive enforcement decisions by the enforcement agency as stipulated in point c of Clause 2, Article 36 of the Civil Enforcement Act include: tax arrears; aid to the State; compensation to the State, state agencies, or enterprises wholly owned by the State in economic management violation or corruption cases; direct payments into the State budget."

5. Clause 1 and Clause 4, Article 7 shall be amended and supplemented as follows:

"1. The head of the civil enforcement agency shall issue one enforcement decision for each enforcement request. In cases where the judgment or decision requires one person to enforce the judgment or decision for multiple persons and all parties request enforcement at the same time, the head of the civil enforcement agency shall issue one joint enforcement decision for multiple requests.

In cases where multiple people are entitled to receive a specific asset or share a sum of money according to the judgment or decision, but only one or some of them have made an enforcement request, the head of the civil enforcement agency shall issue an enforcement decision in accordance with the content of the judgment or decision.

4. The civil enforcement agency shall refuse to accept an enforcement request for a judgment or decision that does not create rights or obligations among the parties as provided for in point a, Clause 5, Article 31 of the Civil Enforcement Law, in cases where the judgment or decision does not clearly specify the amount to be enforced or does not clearly identify the person subject to enforcement, except in the following cases:

a) Transferring ownership, use, and management rights over property when, at the time of the enforcement request, the person subject to enforcement does not directly manage or use the property;

b) Transferring custody rights over minors when, at the time of the enforcement request, the person subject to enforcement does not directly provide care;

c) Transferring visitation and care rights over minors, persons without civil capacity, or persons unable to work to the person subject to enforcement who does not directly provide care."

6. Clause 2 and Clause 6 of Article 9 shall be amended and supplemented as follows:

"2. In cases where it is necessary to verify information about assets, place of residence, workplace, headquarters of the person subject to enforcement, or other information related to enforcement, the head of the civil enforcement agency may delegate verification to the civil enforcement agency where such information is available.

The delegation of verification by the civil enforcement agency must be in writing, specifying the content of the delegation and any other necessary content. The head of the civil enforcement agency receiving the delegation shall be responsible for the results of the verification according to the content of the delegation and shall reply in writing on the results of the verification to the delegating civil enforcement agency within the following deadlines:

a) For the verification of immovable and movable property that must be registered for ownership or use, the deadline for replying with the results of the verification shall not exceed thirty days from the date of receipt of the delegation. In difficult or complex cases, the deadline for submitting the results of the verification may be extended but shall not exceed forty-five days from the date of receipt of the delegation.

b) For the verification of other types of property and information, the deadline for replying with the results of the verification shall not exceed fifteen days from the date of receipt of the delegation.

6. Enforcement cases that do not yet meet the conditions specified in Clause 5 of this Article shall be separately recorded for monitoring. When new information about the enforcement conditions of the person subject to enforcement becomes available, the Enforcement Officer shall conduct verification and organize enforcement in accordance with Clause 4 of this Article.”

7. Clause 2 of Article 12 shall be amended and supplemented as follows:

"2. In cases where the notified party is a person with a vested interest or obligation who is absent, the notification to them through relatives shall be carried out in accordance with Clause 2 of Article 40 of the Civil Enforcement Law.

In cases where the parties or persons with vested interests or obligations request to receive notifications by telegram, fax, email, or other means, direct notification may be carried out in that form if it does not cause inconvenience to the civil enforcement agency."

8. Clause 1 of Article 13 shall be amended and supplemented as follows:

"1. The Enforcement Officer shall base on the content of the judgment or decision; the enforcement decision; the nature, severity, and enforcement obligation; the conditions of the person subject to enforcement; the written request of the party; and the actual situation of the locality to select appropriate measures for guaranteeing and enforcing the decision.

The Enforcement Officer may apply guaranteeing and coercive measures in cases of enforcing decisions on urgent provisional measures as stipulated in Article 130 of the Civil Enforcement Law.

The application of guaranteeing and coercive measures must correspond to the obligations of the person subject to enforcement and the costs of enforcement as prescribed by law, except in cases where the sole asset of the person subject to enforcement is significantly larger than the enforcement obligation and cannot be divided, or dividing it would significantly reduce its value; the secured asset has been declared by the judgment or decision to be processed for enforcement; or in the case provided for in Clause 4 of Article 24 of this Decree.

In cases where the parties or those managing, using, or preserving the asset do not comply with the requirements of the Enforcement Officer, depending on the specific circumstances, the Enforcement Officer shall organize coercive measures such as unlocking doors, opening packages; forcibly removing from houses, buildings, or land-attached assets, or other necessary measures to inspect the current status, appraise the value, auction the asset, or transfer the asset to another individual or organization for preservation in accordance with the law.

In cases where, after applying coercive measures, the transfer of asset preservation as stipulated in Article 58 of the Civil Enforcement Law cannot be implemented, the head of the civil enforcement agency shall issue a written request to the People's Committee of the commune to cooperate and support preservation until the asset can be resolved."

9. Clause 1, Clause 2, Clause 3, and Clause 4 of Article 16 shall be amended and supplemented as follows:

“1. Based on the judgment or decision being enforced or the results of verification, the head of the civil enforcement agency shall entrust enforcement to the civil enforcement agency where the person subject to enforcement has assets, works, resides, or has headquarters.

2. In cases where the person subject to enforcement has many assets in different places, the civil enforcement agency shall implement the delegation in the following order:

a) By agreement of the parties;

b) Where there are sufficient assets to enforce the judgment or decision;

c) Where the total value of the assets is the largest.

3. In cases where the judgment or decision declares a secured asset for a specific enforcement obligation and that asset is located elsewhere, the specific enforcement obligation must be delegated to the civil enforcement agency where the secured asset is located."

In case the property being processed for enforcement of judgment is subject to dispute and has been accepted by the court for resolution, and the party with the property is located in another locality, the matter shall be entrusted to the civil enforcement agency where the property is located for enforcement.

The entrusted enforcement agency must regularly update, monitor, and immediately inform the entrusting enforcement agency of the results of the court's resolution of the dispute to coordinate in organizing the enforcement of the judgment. The receiving enforcement agency must promptly report the progress and results of the property processing to the entrusting enforcement agency for monitoring and coordinating in organizing the enforcement of the judgment.

4. The decision on entrusting enforcement must clearly state the content of the entrustment, the portion already executed, the portion to continue executing, and other necessary information for the implementation of the entrustment.

When sending the decision on entrusting enforcement, the civil enforcement agency must send along with it the judgment and decision; copies of the inventory record, temporary seizure of property, and other related documents if available. In cases where multiple places need to be entrusted, the Enforcement Officer must copy the judgment, decision, and other related documents into multiple copies, stamped by the entrusting enforcement agency to send to the receiving enforcement agencies.

Decisions applying measures to ensure enforcement of judgments, decisions temporarily suspending departure from the country, and other enforcement-related decisions concerning the entrusted portion remain effective until replaced by a decision from the receiving agency.

10. Clause 1 and Clause 2 of Article 17 are amended and supplemented as follows:

"1. The Enforcement Officer organizes the valuation of assets to implement the enforcement of judgment when there is a change in asset value at the time of enforcement according to Article 59 of the Civil Enforcement Law, provided that the following conditions are met:

a) The person subject to enforcement does not voluntarily hand over the asset or pay the value of the asset according to the content of the judgment or decision after the deadline specified in Clause 1 of Article 45 of the Civil Enforcement Law;

b) At least one of the parties has submitted a request for asset valuation and paid the advance fee for asset valuation;

c) At the time of enforcement, the asset value changes by 20% or more compared to its value when the judgment or decision becomes legally binding.

2. The party requesting asset valuation is responsible for providing evidence proving the change in asset value, attached to the request for asset valuation. Evidence proving the change in asset value may include the price range set by the competent authority applied in the locality, the market price of similar or identical assets in the locality, or the actual transaction price of the same type of asset in the locality.

Within five working days from the date of receipt of the party's request for asset valuation and evidence proving the change in asset value, the Enforcement Officer must proceed with the valuation process according to Article 98 of the Civil Enforcement Law. Valuation costs are borne by the party requesting the valuation.

11. Clause 1 and Clause 6 of Article 24 are amended and supplemented as follows:

"1. In cases where the asset has been subject to preventive measures, urgent interim measures, measures to ensure enforcement, or compulsory enforcement measures, and transactions related to the asset arise, such asset will be seized and processed for enforcement. The Enforcement Officer issues a document requesting the court to declare the transaction regarding the asset void or requests the competent authority to cancel the relevant documents related to the transaction.

In cases where the person subject to enforcement does not use the entire amount received from the transaction to fulfill the enforcement obligation and has no other assets or has other assets but insufficient to secure the enforcement obligation, the following actions will be taken:

a) If there is a transaction involving the asset but the transfer of ownership or use rights has not been completed, the Enforcement Officer will proceed with the seizure and processing of the asset according to regulations. When seizing the asset, if there is a dispute, the Enforcement Officer will act according to Clause 1 of Article 75 of the Civil Enforcement Law, and if declaring the transaction void or requesting the cancellation of relevant documents, they will follow Clause 2 of Article 75 of the Civil Enforcement Law.

If there is a transaction involving the asset from the time the judgment or decision becomes legally binding but the transfer of ownership or use rights has been completed, the Enforcement Officer will not seize the asset but will act according to Clause 2 of Article 75 of the Civil Enforcement Law and issue a notice to relevant authorities and organizations to temporarily halt registration, transfer of ownership or use rights, and changes in the status of the asset.

The handling of the asset will be carried out according to the decision of the court or the competent authority.

b) In cases where there are other transactions related to the asset without transferring ownership or land use rights to others, the Enforcement Officer will proceed with the seizure and processing of the asset for enforcement. The rights and legitimate interests of the transaction participants will be implemented according to civil law and related laws.

6. In cases where the person subject to enforcement voluntarily hands over the asset according to point a of Clause 1 of Article 7a of the Civil Enforcement Law to fulfill the payment obligation, the Enforcement Officer will prepare a record of voluntary asset delivery. This record serves as the basis for the Enforcement Officer to deliver the asset according to the agreement or organize the valuation, sale of the asset, and determine the priority order of payment. Valuation and sale costs and other necessary costs according to the law are borne by the person subject to enforcement.

In cases where the party voluntarily delivers the only house as an asset, but the proceeds are insufficient to settle all enforcement obligations and the person subject to enforcement lacks funds to rent or establish a new residence, the Enforcement Officer will act according to Clause 5 of Article 115 of the Civil Enforcement Law.

12. Clause 1, Clause 3, and Clause 5 of Article 27 are amended and supplemented as follows:

"1. Prior to the first auction sale of jointly owned property where multiple co-owners have expressed interest in purchasing the portion of the debtor's property at the predetermined price, the Enforcement Officer shall notify such co-owners to agree on who has the right to purchase. If they cannot reach an agreement, the Enforcement Officer shall organize a draw to select the buyer.

3. In the same auction, if there are multiple properties being auctioned for enforcement, the civil enforcement agency shall require the auction organization to conduct the auction in descending order of value. If the proceeds from the auction are sufficient to cover the obligations and costs as prescribed, the remaining properties will not be auctioned.

The person acquiring the auctioned property must deposit the funds into the account of the civil enforcement agency within thirty days from the date of the successful auction, with no extension allowed.

Within thirty days, or sixty days in complex cases, from the date the buyer deposits the full amount, the civil enforcement agency must organize the transfer of the property to the buyer, except in cases of force majeure.

The auction organization is responsible for coordinating with the civil enforcement agency in transferring the auctioned property to the buyer. Any individual or entity that obstructs or interferes illegally, causing delays in the transfer of the successfully auctioned property and resulting in losses, shall be liable for compensation.

5. After the auction session ends, if the winning bidder refuses to purchase the property or has signed a sales contract but has not paid any additional amounts, after deducting the auction expenses, the deposit money shall belong to the state budget and be used to pay the late enforcement interest, advance payment for state compensation costs, financial guarantees for enforcement, and other necessary costs.

If the buyer of the auctioned property fails to fully or timely fulfill the payment obligation according to the contract, the purchase payment shall be handled according to the agreement in the auction sales contract and the provisions of the Civil Code regarding sales contracts.

The civil enforcement agency shall organize the auction sale of property in accordance with the law.

13. Clause 1 and Point a of Clause 5, Article 49 shall be amended and supplemented as follows:

a) Clause 1 of Article 49 shall be amended and supplemented as follows:

"1. In cases where the execution of the judgment debt is made according to point b, Clause 2, Article 47 of the Civil Enforcement Law, those persons entitled to enforcement who have requested execution based on judgments and decisions currently being enforced by that enforcement agency up to the time of the compulsory enforcement decision or voluntary delivery record shall be prioritized for payment.

In cases where multiple persons are entitled to receive a specific asset or share a sum of money under Clause 1 of Article 7 of this Decree, the Enforcement Officer shall carry out the enforcement procedures for those who have requested enforcement; organize the distribution of money and assets to those who have requested or those entitled to enforcement present at the time of payment and asset delivery. The rights and legitimate interests of other persons entitled to enforcement under the judgment or decision shall be resolved according to agreements or the provisions of the Civil Code.

b) Point a of Clause 5 shall be amended and supplemented as follows:

"a) The amount of money or property that has not been delivered due to an undetermined address of the recipient or the expiration of fifteen days from the date of notification, except in cases provided for in Clause 3 of this Article, where the person entitled to enforcement has not come to claim it.

After sending the money or property, if the recipient comes to claim it, the civil enforcement agency shall pay the money or deliver the property to the recipient. The interest earned on the deposited amount shall be added to the initial deposit and paid to the recipient.

After five years from the date the judgment or decision becomes legally effective or one year from the date of notification for cases where money is collected after five years from the date the judgment or decision becomes legally effective, if the person entitled to enforcement does not come to claim it, the head of the civil enforcement agency shall issue a decision to transfer the money or property to the state treasury and submit it to the State Budget.

14. Clause 3 of Article 50 shall be amended and supplemented as follows:

"3. For judicial enforcement involving judicial commission, it shall be handled as follows:

a) Within six months from the date the Ministry of Justice sends a valid judicial commission file and receives all required results, the civil enforcement agency shall enforce the judgment according to the law.

If the required results of the judicial commission are not met, the civil enforcement agency shall conduct a second judicial commission. If the second judicial commission does not meet the requirements, the civil enforcement agency shall proceed as stipulated in point b of this clause.

b) If there are no results within the period specified in point a of this clause or if there is a notice stating that the judicial commission could not be carried out, the notice of the commissioned document and other documents during the enforcement process shall be handled according to Article 43 of the Civil Enforcement Law.

c) In cases of judicial commission related to the delivery of papers and documents concerning the subject's property or personal status, if the judicial commission is unsuccessful or the subject does not come to claim them, within ten days from the end of the period specified in point a of this clause or from the end of the notified period, the enforcement agency shall handle the delivery to the person concerned; if the address of the recipient cannot be determined, it shall be sent to the issuing authority or the representative office of the country where the issuing authority is located.

15. Clause 1, Point e of Clause 2, and Clause 4 of Article 51 shall be amended and supplemented as follows:

a) Clause 1 and Clause 4 of Article 51 shall be amended and supplemented as follows:

"1. A person subject to enforcement who has not completed their enforcement obligations according to the judgment or decision may be temporarily prohibited from leaving the country, except in cases provided for in Clause 2 of this Article."

The head of the civil enforcement agency shall issue a decision on temporary suspension of departure and send it to the immigration management agency in any of the following cases:

a) At the request of the person subject to enforcement;

b) There are grounds indicating that departure would affect the legitimate rights and interests of the State, organizations, individuals, or to ensure the enforcement of the judgment.

The implementation of temporary suspension of departure, extension, lifting, or cancellation of such suspension shall be carried out in accordance with the provisions of the Law on Entry and Exit.

When an agency or organization has the obligation to enforce a judgment or decision, the temporary suspension of departure shall apply to the legal representative of that agency or organization, except where otherwise provided by law. Upon receipt of notification regarding the change of the legal representative of the agency or organization or in cases stipulated in Clause 4 of this Article, the civil enforcement agency shall send a document to the immigration management agency to adjust the information.

4. The lifting or cancellation of the temporary suspension of departure shall be implemented when there is a supervisory review decision or re-examination decision revoking the judgment or decision being enforced, when the grounds for the temporary suspension of departure no longer exist, or in cases stipulated in Clause 2 of this Article.

b) Point e of Clause 2 of Article 51 is amended and supplemented as follows:

"e) There is a document from the Public Security agency or diplomatic mission requesting departure in the case of an individual who is a perpetrator of serious, very serious, or extremely serious crimes currently suffering from a terminal illness or without assets or income in Vietnam but not allowed to depart by the person subject to enforcement or whose address cannot be determined, or the person subject to enforcement is a foreign national who has returned to their home country, and other special cases."

16. Clause 3 of Article 66 is amended and supplemented as follows:

"3. The Minister of Justice shall establish professional standards for Enforcement Reviewers after consultation with the Minister of Home Affairs."

17. Clause 2 of Article 71 is amended and supplemented as follows:

"2. The Minister of Justice shall establish professional standards for Enforcement Secretaries after consultation with the Minister of Home Affairs."

Article 2. Abolish point b of Clause 2 of Article 64

Article 3. Transitional Provisions

For enforcement proceedings that have been partially executed or not yet completed before this Decree takes effect but have already completed enforcement procedures in accordance with the Civil Enforcement Law and guiding legal documents, the results of enforcement shall be recognized; subsequent enforcement procedures shall continue to be carried out in accordance with this Decree.

Article 4. Effective date

This Decree shall take effect from May 1, 2020.

Article 5. Responsibilities for Implementation

Ministers, heads of ministerial-level agencies, heads of agencies under the Government, Chairpersons of provincial and centrally-run city People's Committees, relevant agencies, organizations, and individuals shall be responsible for implementing this Decree./.