Nghị định 33/2020/NĐ-CP sửa đổi Nghị định hướng dẫn Luật Thi hành án dân sự

DECREE

On amending and supplementing a number of Articles of the Government’s Decree No. 62/2015/ND-CP dated July 18, 2015 on detailing and guiding the implementation of a number of Articles of the Law on Enforcement of Civil Judgments

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

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

Pursuant to the Law on amending and supplementing a number of Articles of the Law on Enforcement of Civil Judgments dated November 25, 2014;

At the proposal of the Minister of Justice;

The Government hereby promulgates the Decree on amending and supplementing a number of Articles of the Government’s Decree’s No. 62/2015/ND-CP dated July 18, 2015 on detailing and guiding the implementation of a number of Articles of the Law on Enforcement of Civil Judgments.

Article 1. To amend and supplement a number of Articles of the Government’s Decree’s No. 62/2015/ND-CP dated July 18, 2015 on detailing and guiding the implementation of a number of Articles of the Law on Enforcement of Civil Judgments

1. To amend and supplement Clause 3, Article 3 as follows:

“3. After 01 year from the effective date of a court judgment or court decision, if the agency, organization or enterprise that is
judgment creditor does not request enforcement of the judgment, the direct managing agencies and organizations; the agency representing the owner of such agency, organization or enterprise shall provide instructions on requesting enforcement for the state-owned money, property.”

2. To amend and supplement Point b, Clause 3 and Point dd, Clause 4, Article 4 as follows:

a) To amend and supplement Point b, Clause 3, Article 4 as follows:

“b) The litigant does not receive a court judgment or court decision not because of their fault; the litigant is working in a bordering area or island and unable to request the enforcement on schedule; the litigant has an accident or disease that causes him/her to lose his/her consciousness; the litigant dies without an inheritor; an organization undergoes amalgamation, merger, division, separation, dissolution, transformation of its form, compulsory transfer, transfer of all shares or contributed capital without identifying another organization or individual entitled to request enforcement as prescribed by law or the litigant fails to request the enforcement before the deadline because of fault of the adjudicating authority, civil judgment enforcement authority or another organization or individual.”

b) To amend and supplement Point dd, Clause 4, Article 4 as follows:

“dd) In case of amalgamation, merger, division, separation, dissolution, transformation of its form, compulsory transfer, transfer of all shares or contributed capital, in order to be able to request a judgment enforcement to be enforced, an organization and individual is required to have a lawful document proving the unidentified time.”

3. To amend and supplement Clauses 2, 3 and 4, Article 5 as follows:

“2. Where the civil judgment enforcement authority has issued an enforcement order, the litigants are still entitled to reach an agreement on judgment execution. The agreement must be in writing and specify the time, location, agreement contents, time limit to execute the agreement, legal consequences for failure to implement it, and bear the involved parties’ signatures or confirmations. A litigant shall be responsible for the agreement contents that do not violate the prohibition of law, contrary to social ethics, is not true to the facts, affect the legitimate rights and interests of a third person or evade fees of judgment enforcement.

If the parties fail to implement the agreement, the civil judgment enforcement authority shall base on the contents of the judgment enforcement decision and the executed results as in the agreement or the litigant’ proposal to enforce the judgment, except for the cases as prescribed in Clause 3 of this Article.

3. Where the litigants reach an agreement to request the civil judgment enforcement authority not to implement part or all of the judgment enforcement decision, the head of the civil judgment enforcement authority shall issue a decision to suspend the implementation of part of or all of the decision in accordance with Point c Clause 1 Article 50 of the Law on Enforcement of Civil Judgments.

If the litigants reach an agreement to suspend the judgment enforcement after the time the property has been auctioned or sold to the co-owners or the judgment creditors have agreed to receive the properties to deduct from the judgment enforcement money, and the property hasn t been delivered to them yet, the agreement must be agreed upon by the winning bidder, the buyer of the property or the recipient.

After having the decision of suspension of judgment enforcement of the head of the civil judgment enforcement authority, a litigant is not entitled to request to re-enforce with the contents that have been suspended from execution.

4. The enforcement officer shall witness and sign the agreement at the request of the litigants in the cases as prescribed in Clauses 2 and 3 of this Article. Such witness must be carried out at the office of the civil judgment enforcement authority. When detecting that the agreement is illegal or immoral or impractical and thus affects the lawful rights and interests of a third party or is meant to avoid enforcement costs, the enforcement officer is entitled to refuse to witness the agreement and provide the reasons of refusal in the agreement.”

4. To amend and supplement Clauses 1 and 3, Article 6 as follows:

“1. The head of a civil judgment enforcement authority may issue a single order for automatic enforcement of certain portions of a court judgment or court decision, except for the following cases:

a) If any person is returned money or property, a judgment enforcement decision shall be issued to that person.

b) If any person is returned many different amounts of money and property, a judgment enforcement decision shall be issued to that person.

c) If any person has both rights and obligations at the same time, a judgment enforcement decision shall be issued to that person.

3. Other revenues for the State which are that are automatically collected by the judgment enforcement authorities as prescribed in Point c, Clause 2, Article 36 of the Law on Enforcement of Civil Judgments includes: Tax arrears, assistance for the State and compensations provided for the State, State agencies or the enterprises that the State holds 100% of charter capital in cases of infringing upon economic management order or corruption; revenues collected directly into the State budget.”

5. To amend and supplement Clauses 1 and 4, Article 7 as follows:

“1. For each request for enforcement, the head of the civil judgment enforcement authority shall issue an enforcement order. Where there is one judgment debtor for many people under a court judgment or court decision and the litigants request enforcement at the same time, the head of the civil judgment enforcement authority shall issue a single enforcement order.

In case many people receive a specific property or receive a sum of money under a judgment or decision, but only one or several of them request judgment enforcement, the head of the civil judgment enforcement shall issue a decision to execute the judgment strictly according to the contents of the judgment or decision.

4. The judgment enforcement authority is entitled to refuse of judgment enforcement for a judgment and decision that does not give rise to the litigants’ rights and obligations in accordance with Point a, Clause 5, Article 31 of the Law on Enforcement of Civil Judgments in case the judgment and decision does not clearly determine the amount of judgment enforcement or does not clearly identify the judgment debtors, except for the following cases:

a) Assigning the right to own, use and manage properties which the judgment creditor must not directly manage and use at the time of requesting for judgment enforcement;

b) Assigning the right to nurture the minors whom the judgment creditor must not directly nurture at the time of requesting for judgment enforcement;

c) Assigning the right to visit and take care of a minor, a person who loses his/her civil act capacity, a person who is incapable of working for the judgment creditor who does not directly nurture them.”

6. To amend and supplement Clauses 2 and 6, Article 9 as follows:

“2. Where information about the judgment debtor’s property, residence, workplace or other information related to the civil judgment enforcement has to be verified, the head of the civil judgment enforcement authority may authorize in writing another civil judgment enforcement authority that has such information to verify.

The letter of authorization shall specify the authorizing contents and other necessary contents. Head of judgment enforcement authority that is authorized shall be responsible for the verification results according to the authorizing contents, reply in writing about the verification results to the authorized judgment enforcement authority in the following time limits:

a) For verification of real property or personal property that has to be registered, the verification result shall be sent within 30 days from the authorization date. In case of difficulty and complication, the time limit may be extended but not exceeding 45 days from the authorization date.

b) For verification of other property and information, the verification result shall be sent within 15 days from the authorization date.

6. The judgment enforcement without conditions as prescribed in Clause 5 of this Article shall be separately listed for monitoring. If there is any new information about the execution conditions of the judgment debtor, the enforcement officer shall verify and organize to enforce a court’s judgment or decision in accordance with Clause 4 of this Article.”

7. To amend and supplement Clause 2, Article 12 as follows:

“2. In case the notified person with related rights and obligations is absent, a notification shall be sent to their relatives in accordance with Clause 2, Article 40 of the Law on Enforcement of Civil Judgments.

A notification may be sent by fax, email or another manner at the request of the litigant or person with related rights and obligations as long as it does not obstruct the civil judgment enforcement authority.”

8. To amend and supplement Clause 1, Article 13 as follows:

“1. The enforcement officer shall select to apply the appropriate measures to ensure the enforcement of judgments and forcible measures according to the contents of the court judgment or decision, the enforcement order, the nature and extent of obligations of the civil judgment enforcement; the judgment debtor’s capacity, the litigant’s written requests and local conditions.

The enforcement officer is entitled to apply measures to ensure the enforcement of judgments and forcible measures in case of implementation of a decision on application of temporary emergency measures as prescribed in Article 130 of the Law on Enforcement of Civil Judgments.

The application of measures to ensure the enforcement of judgments and forcible measures must be suitable for the judgment debtor’s obligations and judgment enforcement charges in accordance with law provisions, except for the case the judgment debtor only has one piece of property whose value is far higher than his/her liability and such property cannot be divided or it will significantly lose its value if divided; security properties have been judged or decided to handle them for judgment enforcement or the cases as prescribed in Clause 4, Article 24 of this Decree.

If the litigants and persons who are managing, using and preserving properties do not comply with the request of the  enforcement officers, the  enforcement officers shall, depending on each specific case, enforce the unlocking or opening of packages; force out of houses, construction works, land-attached assets or other necessary measures to check the current status, appraise prices, auction of properties or hand over properties to other individuals and organizations for preservation in accordance with law provisions.

After applying the forcible measures, if the delivery of the property cannot be performed as prescribed in Article 58 of the Law on Enforcement of Civil Judgments, the head of the civil judgment enforcement authority shall make a written request and send to the commune-level People s Committees for coordination and support of preservation while the property is not yet processed.”

9. To amend and supplement Clauses 1, 2, 3 and 4, Article 16 as follows:

“1. The head of the civil judgment enforcement authority shall entrust another civil judgment enforcement authority where the judgment debtor’s property or head office is located, or where the judgment debtor works or resides.

2. In case judgment debtor’s properties are located in more than one place, the civil judgment enforcement authority shall entrust in the following order:

a) Under the agreement of litigants;

b) Where the property is sufficient to satisfy the judgment;

c) Where the most total valuable properties are located.

3. In case where a judgment or decision declaring security property for a specific payable under enforced judgments and such property is located in another area, the civil judgment enforcement authority must entrust such payables for another civil judgment enforcement authority where the property is located.

In case the property is being processed for judgment enforcement but there is a dispute and it is accepted by the court and the litigant has property in another locality, the civil judgment enforcement authority shall entrust the civil judgment enforcement authority where the property is located to enforce a court’s judgment or decision.

The entrusting judgment enforcement authority must regularly update, follow and notify the entrusted judgment enforcement authority about the dispute settlement results of the court for the organization of judgment enforcement. The entrusted judgment enforcement authority shall promptly notify the process and result of handling of the property to the entrusting judgment enforcement authority to follow and coordinate in organization of judgment enforcement.

4. The entrustment decision of judgment enforcement shall specify the authorized contents, fulfilled obligations, unfulfilled obligations and information necessary for the entrustment.

The civil judgment enforcement authority must send the entrustment decision together with the court judgment or decision, copies of distraint records, property seizure and other relevant documents, if any. Where more than one civil judgment enforcement authority is entrusted, the enforcement officer must send the copies of the judgment or decision and relevant documents bearing stamp of the entrusting civil judgment enforcement authority to the entrusted civil judgment enforcement authorities.

Decisions on application of the measures to ensure the enforcement of judgments, decisions on temporary suspension of exit and other decisions on judgment enforcement related to the authorized payables shall be effective until the replacement documents are issued by the entrusted authority.”

10. To amend and supplement Clauses 1 and 2, Article 17 as follows:

“1. The enforcement officer shall organize to evaluate the property price for the judgment enforcement in case of a change to property price at the time of judgment enforcement according to Article 59 of the Law on Enforcement of Civil Judgments when fully meet the following conditions:

a) A judgment debtor does not want to hand over the property or pay the property value according to the contents of the court judgment or decision when the time limits as prescribed in Clause 1, Article 5 of the Law on Enforcement of Civil Judgments.

b) There are at least one of the litigants requesting for evaluate the property price and already paid the advances for the property valuation;

c) At the time of judgment enforcement, the property price increases or decreases by 20% or more in comparison to the value of the property when the court judgment or decision takes legal effect.

2. The person requesting property valuation shall be responsible for providing documents proving the change of property price, attached with an application for property valuation. Such documents may be the price bracket imposed by a competent State authority in locality or the popular market price of identical or similar property in the same area or actual transfer price of the same kind of property in the area.

Within 05 working days from the receipt of the request for property valuation and documents proving the change of property price of the litigant, the enforcement officer shall follow valuation procedures in accordance with Article 98 of the Law on Enforcement of Civil Judgments. The valuation cost shall be paid by the person requesting the valuation.”

11. To amend and supplement Clauses 1 and 6, Article 24 as follows:

“1. Where preventive measures, temporary emergency measures, security measures and forcible measures have been taken but there is a transaction related to such property, it shall be seized and settle to satisfy the judgment. The enforcement officer shall request the court to nullify such transaction or request a competent authority to invalidate every document concerning to the transaction related to such property.

In case there is transaction related to the property and the judgment debtor does not use the whole money from such transaction for the judgment enforcement and there is no other property, or there is another property but it is not enough to secure the obligations of judgment enforcement, such property shall be handled as follows:

a) In case of having transactions on properties but such properties’ ownership or use rights have not yet been transferred, the enforcement officer shall distrain and handle the properties according to regulations. When distraining a property, if there is any dispute, the enforcement officer shall comply with Clause 1, Article 75 of the Law on Enforcement of Civil Judgments. In case it is required to declare a transaction invalid or request the competent agency to cancel papers related to the transaction, the provisions of Clause 2, Article 75 of the Law on Enforcement of Civil Judgments shall be complied with.

In case there is transaction related to the property from the date on which the court judgment or decision takes legal effect, but such property s ownership or use rights have been already transferred, the enforcement officer shall not distrain the property and comply with the provisions of Clause 2, Article 75 of the Law on Enforcement of Civil Judgments and notify in writing to relevant agencies, organizations and individuals for coordination in temporary suspension of registration, transferring of the right of use or ownership, or change the property status.

The property settlement shall comply with decisions of court or the competent authority.

b) In case there are other transactions related to the property and such property s ownership or use right is not transferred to another person, the enforcement officer shall distrain and handle the property for the judgment enforcement. The legal rights and interests of people involved in the transaction shall comply with the provisions of law on civil and other relevant laws.

6. Where the judgment debtor voluntarily hand over his/her property as prescribed in Point a, Clause 1, Article 7a of the Law on Enforcement of Civil Judgments to fulfill his/her obligations of payment, the enforcement officer shall make a record on voluntarily handing over the property. Such record serves as a base for the enforcement officer to hand over the property according to the agreement or organize to evaluate the property price, sell it and determine the payment order of priority. The valuation cost, liquidation cost and other relevant costs shall be paid by the judgment debtor.

Where the judgment debtor voluntarily hand over his/her only house but it is still not sufficient to fulfill his/her obligations of judgment enforcement and he/she is not able to lease another house or find another residence, the enforcement officer shall follow instructions in Clause 5, Article 115 of the Law on Enforcement of Civil Judgments.

12. To amend and supplement Clauses 1, 3 and 5, Article 27 as follows:

“1. Before the first auction of property under common ownership, if more than one joint owner wishes to buy the judgment debtor’s share of property at the set price, the enforcement officer shall request the joint owners to reach an agreement with the person holding the right to buy the property. If an agreement cannot be reached, the enforcement officer shall select a buyer by drawing lots.

2. In cases where there are many properties auctioned for the judgment enforcement in the same auction, the civil judgment enforcement authority shall request the auction organization to conduct an auction in the order of the most valuable property. Where the collected money is sufficient for the performance of obligations and the expenses as prescribed, the auction of the remaining properties shall not be continued.

The successful bidder shall transfer money to the account of the civil judgment enforcement authority within 30 days from the wining date and must not extend it.

Within 30 days, or 60 days for complicated and difficult cases, from the day on which the successful bidder fully transfers the payment, the civil judgment enforcement authority shall deliver possession of the property to the successful bidder unless there is a force majeure event.

The auctioneering body shall cooperate with the civil judgment enforcement authority in delivering possession of property to the successful bidder. Any organization or individual that illegally intervenes or obstructs the delivery of property possession shall pay compensation for any damage.

5. After ending the auction, if the successful bidder refuses to buy the property or had signed the sale contract but has not paid any other amounts after deducting the auction costs, the deposit shall be transferred to the state budget and used to cover late payment interest, advance compensation, enforcement costs and other relevant costs.

Where the successful bidder fails to fully or punctually pay for the property under the contract, the payment shall be dealt with in accordance with the contract of purchasing of auction property and regulations of law on sale contract.

The civil judgment enforcement authority shall hold an auction as prescribed by law.”

13. To amend and supplement Clause 1 and Point a, Clause 5, Article 49 as follows:

a) To amend and supplement Clause 1, Article 49 as follows:

“1. In case of payment of judgment enforcement money under the provisions of Point b, Clause 2, Article 47 of the Law on Enforcement of Civil Judgments, the judgment debtors that have requested according to the judgments and decisions currently performed by such judgment enforcement authority up to the time of issuance of the enforcement decision or the record of voluntary delivery of assets shall be prioritized for payment.

Where many persons receive a specific property or receive a sum of money under the provisions of Clause 1, Article 7 of this Decree, the enforcement officer shall carry out the procedures on judgment enforcement for those who have requested the judgment enforcement; organize the delivery of money and property to the persons who have requested or the judgment debtors presenting at the time of payment of money or return of properties. The other judgment creditors rights and obligations according to such court judgment or decision shall be settled as agreed or in accordance with provisions of law on civil.”

b) To amend and supplement Point a, Clause 5 as follows:

“a) The recipient’s address is not determined or the money is going to expire in 15 days from the notification date, except for the case as prescribed in Clause 3 of this Article in which the judgment creditor does not show up to receive it.

If the recipient shows up to receive the money or property after it is sent to a bank account or warehouse, the civil judgment enforcement authority shall give it to the recipient. The amount given to the recipient is inclusive of the deposit interest.

If the judgment creditor does not show up to receive the money or property within 05 years from the effective date of the judgment and decision, or within 01 year from the notification date if money is collected after 05 years from the effective date of the judgment and decision, the heads of the civil judgment enforcement authority shall issue a decision on remitting to the State fund and transfer such money and property to the State budget.”

14. To amend and supplement Clause 3, Article 50 as follows:

“3. In case of judicial assistance request in the process of civil judgment enforcement:

a) Within 06 months from the day on which the Ministry of Justice sends a valid judicial entrustment dossier, if civil judgment enforcement authority receives sufficient results as required, it shall execute the judgment enforcement in accordance with provisions of law.

In case of receiving the judicial entrustment results but such results do not meet requirements; the judgment enforcement authority shall execute the judgment enforcement for the second time. If the judicial entrustment has been conducted for the second time but the results fail to meet the requirements, civil judgment enforcement authority shall comply with the provisions at Point b of this Clause.

b) If past the time limit as prescribed in Point a of this Clause but there is no result or any notification about the failure to carry out the judicial entrustment, the notification of entrusted documents and other documents in the judgment enforcement shall comply with Article 43 of the Law on Enforcement of Civil Judgments.

c) In case of judicial entrustment about the handover of papers and documents related to the property and personal identities of the litigants, if the performance of legal entrustment does not work or the litigants do not come to receive it, then within 10 days from the expiry date of the time limit as prescribed in Point a of this Clause or the time limit expires according to the notification, the judgment enforcement authority shall carry out the procedures to send them to such person. In case the recipient s address is not be determined, such papers and documents shall be sent to the issuing agency or organization or the representative agency of the country where the agency or organization issued such documents and papers.”

15. To amend and supplement Clause 1, Point e, Clauses 2 and 4, Article 51 as follows:

a) To amend and supplement Clauses 1 and 4, Article 51 as follows:

“1. A judgment debtor that hasn t completed his/her obligations according to the court judgment or decision shall be temporarily suspended to exit, except for the cases specified in Clause 2 of this Article.

The head of a civil judgment enforcement authority shall make a decision on the temporary suspension of exit and send to the immigration management agency in one of the following cases:

a) Having request of the judgment creditor;

b) There are grounds to show that the exit affects the lawful rights and interests of the State, organizations and individuals or to ensure judgment enforcement.

The temporary suspension of exit, extension, clearance and cancellation of exit suspension shall comply with the law on entry and exit.

For the judgment debtor is an organization, agency, the regulations on suspension of exit shall apply to its legal representative, unless otherwise prescribed by law. In case of receiving notification on the change of the legal representative of the organization and agency or cases as prescribed in Clause 4 of this Article, the civil judgment enforcement authority shall send a document to the immigration management agency for adjustment of information.

4. The clearance and cancellation of exit suspension shall be carried out if the judgment is canceled under a cassation or reopening procedures or the basis for the suspension is no longer exists or according to other cases as prescribed in Clause 2 of this Article.”

b) To amend and supplement Point e, Clause 2, Article 51 as follows:

“e) A police authority or diplomatic mission has made a written request for permission for the judgment debtor’s exit in case he/she commits a serious, very serious or extremely serious crime and has a fatal disease or does not have property or income in Vietnam while the exit is not accepted by the judgment creditor or the judgment creditor’s address is not available or the judgment creditor is a foreigner who has repatriated, or in other special cases.”

16. To amend and supplement Clause 3, Article 66 as follows:

“3. The Minister of Justice shall stipulate the professional standards of enforcement inspectors after reaching an agreement with the Minister of Home Affairs.”

17. To amend and supplement Clause 2, Article 71 as follows:

“2. The Minister of Justice shall stipulate the professional standards of enforcement secretaries after reaching an agreement with the Minister of Home Affairs.”

Article 2.To repeal Point b, Clause 2, Article 64.

Article 3. Transitional provisions

Regarding judgments that have not completely been enforced before the effective date of this Decree but enforcement procedures have been followed in accordance with the Law on Enforcement of Civil Judgments and its guiding documents, the enforcement results shall be recognized; the next enforcement procedures shall be followed in accordance with this Decree.

Article 4. Effect

This Decree takes effect on May 01, 2020.

Article 5. Implementation responsibility

The Ministers, the Heads of the ministerial-level agencies, the Heads of agencies affiliated to the Government, the People’s Committees of provinces and central affiliated cities, relevant agencies, organizations and individuals shall be responsible for the implementation of this Decree./.

For the Government

The Prime Minister

Nguyen Xuan Phuc