Circular No. 43/2018/TT-BTC guiding certain provisions of Decree No. 30/2018/NĐ-CP dated March 7, 2018 of the Government detailing the establishment and operation of the Asset Valuation Council; procedures and formalities for asset valuation in criminal proceedings.

CIRCULAR

Guidelines for certain provisions of Decree No. 30/2018/NĐ-CP

dated March 7, 2018, of the Government detailing the establishment and operation of the Asset Valuation Council;

its activities;

Procedures and formalities for asset valuation in criminal proceedings

Pursuant to the Criminal Procedure Code dated November 27, 2015;

Pursuant to Decree No. 30/2018/NĐ-CP dated March 7, 2018 of the Government detailing the establishment and operation of the Asset Valuation Council; procedures and formalities for asset valuation in criminal proceedings; The Minister of Finance issues this Circular guiding certain provisions of Decree No. 30/2018/NĐ-CP dated March 7, 2018 of the Government detailing the establishment and operation of the Asset Valuation Council; procedures and formalities for asset valuation in criminal proceedings.

Pursuant to Decree No. 87/2017/NĐ-CP dated July 26, 2017, issued by the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Price Management Department;

This Circular guides certain provisions of Decree No. 30/2018/NĐ-CP dated March 7, 2018 of the Government on the basis for asset valuation; price survey, information collection related to assets to be valued; requirements when applying asset valuation methods and costs for asset valuation and revaluation in criminal proceedings; procedures for advance payment and settlement of asset valuation and revaluation costs in criminal proceedings. Article 2. Scope of Application

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular applies to the Asset Valuation Council; members of the Asset Valuation Council; other agencies, organizations, and individuals related to asset valuation in criminal proceedings.

Article 3. Basis for Asset Valuation

1. Asset valuation must be based on at least one of the asset valuation bases specified in Article 15 of Decree No. 30/2018/NĐ-CP.

Chapter II

SPECIFIC PROVISIONS

  For the asset valuation bases specified in Clause 1, Article 15 of Decree No. 30/2018/NĐ-CP, where there are two or more bases, the Asset Valuation Council shall determine the priority order of the asset valuation bases according to the nature and characteristics of the asset to be valued and the information collected related to the asset.

2. The asset valuation bases specified in Clause 1, Article 15 of Decree No. 30/2018/NĐ-CP include the following bases:

a) Market price of the asset is the common transaction price on the market of the asset to be valued or similar assets at the time and location of valuation requested.

Common transactions on the market are lawful and public transactions of buying and selling assets. An asset is considered to have common transactions if there are at least three similar assets with transactions of buying and selling on the market. The common transaction price collected includes actual purchase and sale prices of successful transactions; listed prices of organizations and individuals producing and trading goods and services; offered prices, bid prices; declared prices; auction prices; prices recorded on invoices, purchase and sale contracts of goods and services...

b) Price determined by competent state authorities is the price set or decided by competent state authorities that are effective at the time of valuation requested. In cases where state authorities set maximum price, minimum price, or price range, the specific price is applied according to the price set by the organization or business at the time of valuation requested;

c) Price provided by a valuation company is the price determined based on the results of the valuation certificate and the report of the valuation company still valid for the asset being appraised;

d) Price in legitimate documents and files about such assets provided by competent authorities or the authority requesting valuation;

e) Other bases regarding the price or value of the asset to be valued are information and documents helping to determine the price of the asset to be valued, such as the best possible use of the asset that can bring the highest value and efficiency; supply and demand relationship for the asset; opinions on the value of the asset from competent state authorities or organizations and individuals knowledgeable about the asset; statements and documents of parties related to the asset; prices of similar assets in other cases previously valued by the Asset Valuation Council; prices of similar assets collected from official websites of agencies and organizations in the region and worldwide when the Council expands price collection in the region and globally.

3. Asset valuation bases for prohibited items are implemented according to the provisions of Clause 2, Article 15 of Decree No. 30/2018/NĐ-CP.

For prices provided by a valuation company: implement according to the provisions of point c, Clause 2 of this Article.

For regional or global market prices of prohibited items announced or provided information by competent agencies and organizations: competent agencies and organizations include those established and operating under the laws of the host country and permitted to announce or provide information according to the laws of that country.

4. Prices from information sources specified in Clauses 2 and 3 of this Article are determined at the time and place of valuation requested by the competent authority conducting the proceedings.

a) If at the time of valuation requested, prices of the asset to be valued or similar assets cannot be collected, then apply the price at the time of valuation or close to the time of valuation but not exceeding 02 years (24 months) from the valuation date. The valuation date is the date reflecting the asset's value according to the valuation request of the competent authority conducting the proceedings.

4. The levels of prices from the information sources specified in Clause 2 and Clause 3 of this Article shall be determined at the time and place where the asset is requested to be appraised by the competent authority conducting proceedings.

a) In cases where the levels of prices for the asset to be appraised or similar assets cannot be collected at the time of the appraisal request, they shall be applied at the time of appraisal or close to the time of appraisal but not exceeding two years (24 months) from the time of appraisal. The time of appraisal is the time when the value of the asset is reflected according to the appraisal request of the competent authority conducting proceedings;

b) In cases where the requested valuation location does not collect prices for the asset to be valued or similar assets, the information collection area should be expanded to regions with market characteristics similar to the requested valuation location. If prices for the asset to be valued or similar assets cannot be collected within the territory of Vietnam, the price collection should be expanded to regions and the world through the official websites of organizations and businesses operating in those regions and globally.

5. When collecting prices as specified in points a and b Clause 4 Article of this Decree, such prices need to be adjusted to the time and location required for valuation according to the asset valuation method decided by the Asset Valuation Council in accordance with the provisions of Article 5 of this Circular.

          Article 4. Price Survey and Information Collection Related to Assets to be Valued

1. The price survey and information collection related to assets to be valued shall be carried out in accordance with the provisions of Clause 2 Article 16 Decree No. 30/2018/ND-CP and Clause 4 Article 3 of this Circular.

2. In cases where the market price survey is conducted based on wholesale or retail prices of the asset to be valued or similar assets as stipulated in point a Clause 2 Article 16 Decree No. 30/2018/ND-CP, it shall be carried out as follows:

a) For non-prohibited assets, depending on the characteristics and circulation conditions of each type of asset on the market, the Asset Valuation Council or the Council's Working Group (if any) shall conduct direct market surveys; on electronic information pages provided by organizations, enterprises engaged in production and business activities of the goods being valued through the Internet in accordance with the law.

For prohibited goods, the Asset Valuation Council shall conduct market surveys in informal markets (if any) at the location where the prohibited goods are requested to be valued or in other localities where transactions involving prohibited goods take place.

b) The collection of prices shall be carried out using a Price Survey Form. The Price Survey Form shall be prepared by a member of the Asset Valuation Council or assigned to a member of the Council's Working Group (if any) and must include the following main contents:

- Name of the asset surveyed, basic economic-technical characteristics of the asset surveyed;

- Type of asset: ordinary goods; prohibited goods; ...

- Location of the survey (commune/district/province); survey subjects;

- Time and method of conducting the survey (direct survey/internet survey, telephone calls, etc.);

- Survey results: surveyed prices (wholesale prices, retail prices, etc.), delivery terms, promotions, discounts (if any); pricing unit (VND/kg, VND/unit, etc.); type of price (bid price, asking price, listed price, contract price, invoice price, etc.)...

- Name and signature of the surveyor;

- Recommendations, difficulties, issues (if any).

c) The collected prices may be wholesale prices or retail prices or both wholesale and retail prices of the asset to be valued or similar assets.

d) The survey shall be conducted as follows:

d1) Developing the survey content:

- Determining the legal characteristics, major economic-technical characteristics of the asset to be valued; determining the condition of the asset to be valued (unused; used; partially destroyed or damaged; totally destroyed or damaged but still capable of being restored to its pre-destruction or damage state; lost or missing; totally destroyed or damaged and incapable of being restored to its pre-destruction or damage state; counterfeit goods; not commonly traded on the market); asset characteristics such as precious metals, gemstones, antiques, cultural relics, or objects of religious, archaeological, architectural, historical value...; prohibited goods...

In cases where the asset is destroyed, damaged, lost, or missing, the Council may request the competent authority to confirm the initial state of the asset and its components before proceeding with the valuation.

For prohibited goods, the Asset Valuation Council requests the competent authority to cooperate and unify the determination of the location and subjects of the survey, and the collection of information on asset prices in informal markets.

- Determining the location where the asset is requested to be valued: district and provincial administrative units; selecting survey partners (individuals, organizations engaged in production and business; experts knowledgeable about the asset to be valued; agents, stores, shopping centers...);

- Determining the time when the asset is requested to be valued and the time of conducting the price survey;

- Determining the method of conducting the price survey: directly on formal or informal markets; through electronic information pages on the Internet...

d2) Conducting the price survey and collecting prices of the asset:

- Conducting the price survey according to the determined contents. For prohibited goods, if necessary, the Asset Valuation Council may request the competent authority to send representatives to participate in the price survey.

- The survey and collection of price levels must be conducted with at least three survey forms for each asset to be appraised according to the determined contents. In cases where fewer than three survey forms can be collected, the report on the survey results must clearly state the difficulties and obstacles encountered during the price survey process; the impact of these difficulties and obstacles on the appraisal of the asset and the appraisal result (if any).

- The collection of price levels must comply with the provisions set forth in Clause 4, Article 3 of this Circular.

d3) Based on the collected information, compile the data gathered, and prepare a report for the Asset Appraisal Council.

3. The results of the price survey and the collection of information related to the assets to be appraised shall be used by the Asset Appraisal Council to determine the method of asset appraisal in accordance with Article 17 of Decree No. 30/2018/NĐ-CP.

Article 5. Requirements when applying the appraisal method

1. Assets that have not been used shall be determined based on the price of identical new assets or similar new assets, adjusted to fit the current condition of the asset to be appraised at the time of appraisal.

2. In cases where two or more appraisal methods are used, the Asset Appraisal Council needs to evaluate, analyze, calculate, or select to reach a final conclusion regarding the price of the asset to be appraised.

          Article 6. Costs of asset appraisal and re-appraisal; procedures for advance payment and settlement of appraisal costs

1. The costs of asset appraisal and re-appraisal; procedures for advance payment and settlement of appraisal costs shall be carried out in accordance with the legal regulations on examination and appraisal costs in litigation proceedings.

2. The engagement of appraisal organizations and valuation enterprises shall be carried out in accordance with the current legal regulations.

3. The implementation of the settlement of asset appraisal and re-appraisal costs shall be as follows:

a) Travel expenses, costs for organizing meetings of the Asset Appraisal Council: carried out in accordance with the current legal regulations on travel allowances and meeting expenses;

b) Price survey costs, costs for collecting information related to the assets to be appraised; costs for engaging appraisal organizations and hiring valuation enterprises: based on actual occurrences in specific cases, provided there are sufficient contracts (if any) and invoices, receipts in accordance with legal regulations;

c) Office supplies costs, printing costs, storage costs, material purchase costs, equipment costs, rental costs for means serving the asset appraisal work: carried out in accordance with point b, Clause 3 of this Article;

d) Other related costs serving the asset appraisal work: carried out in accordance with the legal regulations on examination and appraisal costs in litigation proceedings.

Chapter III

IMPLEMENTING PROVISIONS

Article 7. Effectiveness and Implementation Organization

1. This Circular takes effect from June 25, 2018.

2. Circular No. 55/2006/TT-BTC dated June 22, 2006, of the Ministry of Finance guiding the implementation of certain provisions of Government Decree No. 26/2005/NĐ-CP dated March 2, 2005, on the Asset Appraisal Council in criminal proceedings shall cease to be effective from the date this Circular takes effect.

3. During the implementation period, if there are difficulties or obstacles, relevant agencies and units shall promptly reflect them to the Ministry of Finance for research and appropriate amendments and supplements./.