Thông tư liên tịch 07/2018/TTLT-BTP-VKSNDTC-TANDTC quy định việc phối hợp trong thi hành quyết định của Tòa án giải quyết phá sản

THE MINISTRY OF JUSTICE - THE PEOPLE’S SUPREME PROCURACY - THE SUPREME PEOPLE’S COURT

Joint Circular No.07/2018/TTLT-BTP-VKSNDTC-TANDTC dated June 12, 2018 of the Ministry of Justice, the People’s Supreme Procuracy and the Supreme People’s Court on cooperation in enforcement of court’s decision on bankruptcy settlement

Pursuant to the Law on Bankruptcy No. 51/2014/QH13 dated June 19, 2014;

Pursuant to the Law on Civil Judgment Enforcement No. 26/2008/QH12 dated November 14, 2008 on amendments to the Law No. 64/2014/QH13 dated November 25, 2014;

Pursuant to the Law on Organization of People’s Court No. 62/2014/QH13 dated November 24, 2014;

Pursuant to the Law on Organization of the People’s Procuracy No. 63/2014/QH13 dated November 24, 2014;

Pursuant to Government s Decree No. 96/2017/ND-CP dated August 16, 2017 defining the functions, tasks, entitlements and organizational structure of the Ministry of Justice;

Pursuant to Government s Decree No. 62/2015/ND-CP dated July 18, 2015 on guidelines for certain articles of the Law on Civil Judgment Enforcement;

Pursuant to Government s Decree No. 22/2015/ND-CP dated February 16, 2015 on guidelines for certain articles of the Law on Bankruptcy in terms of bankruptcy trustees, asset management and liquidation practicing;

The Minister of Justice, the Chief Justice of the Supreme People’s Court, and the Chief Procurator of the Supreme People’s Procuracy promulgate a Joint Circular on cooperation in enforcement of court’s decision on bankruptcy settlement.

Chapter I

GENERAL PROVISIONS

Article 1. Scopeof adjustment

This Joint Circular sets forth the cooperation in certain procedures for enforcing the court’s decision on bankruptcy settlement.

Article 2.Subject of application

This Joint Circular applies to People’s Court, People’s Procuracy, managing authorities of civil judgment enforcement, civil enforcement agencies, bailiffs, bankruptcy trustees, asset management enterprises, enterprises, cooperatives and entities relevant to enforcement of court’s decision on bankruptcy settlement.

Chapter II

PROCEDURES FOR ENFORCEMENT OF COURT’S DECISION ON BANKRUPTCY SETTLEMENT

Article 3. Temporary suspension and suspension of judgment enforcement

1. After receiving a court’s notice regarding acceptance of a petition for initiation of bankruptcy process against an insolvent enterprise or cooperatives which is a judgment debtor (obligated to execute the judgment), the head of civil enforcement agency shall issue a decision on temporary suspension of judgment enforcement against its asset(s), other than a judgment forcing the insolvent enterprise or cooperatives to compensate for lives, health, honor or salaries of employees.

The decision on temporary suspension of judgment enforcement shall be made within 5 working days from the date on which the court’s notice is received.

2. If the court decides not to initiate the bankruptcy process after it accepted the case and the civil enforcement agency issued a decision on temporary suspension of judgment enforcement as prescribed in Clause 1 Article 71 of the Law on Bankruptcy, within 5 working days from receipt of the court’s decision, the civil enforcement agency shall issue a decision on revocation of such a decision on temporary suspension of judgment enforcement and resumption of judgment enforcement as prescribed in Clause 1 Article 37 and Clause 3 Article 49 of the Law on Civil Judgment Enforcement.

3. If the court, subject to Clause 1 Article 86 and Point a Clause 1 Article 95 of the Law on Bankruptcy, issues a decision on suspension of bankruptcy process and suspension of business resumption after it issued a decision on initiation of bankruptcy process and the civil enforcement agency issued a decision on suspension of judgment enforcement as prescribed in Clause 2 Article 71 of the Law on Bankruptcy, within 5 working days from receipt of the court’s decision, the civil enforcement agency shall issue a decision on revocation of such a decision on suspension of judgment enforcement and resumption of judgment enforcement as prescribed in Clause 3 Article 137 of the Law on Civil Judgment Enforcement.

Article 4. Judgment enforcement while enterprise/cooperatives declared bankrupt is a judgment creditor

If an enterprise/cooperatives declared bankrupt is a judgment creditor, the civil enforcement agency shall keep the enforcement as per the law. The bailiff shall give a notice of enforcement result to the bankruptcy trustees, asset management enterprise and the bankruptcy judge to plan the division of collected assets.

Article 5. Transfer, decision on judgment enforcement and authority of bailiff in enforcing the court’s decision on bankruptcy settlement

1. A court’s decision on bankruptcy settlement shall be transferred to the competent civil enforcement agency within 30 days from the date on which it becomes legally effective.

2. Within 3 working days from receipt of the court’s decision on bankruptcy settlement, the head of competent civil enforcement agency shall issue a decision on judgment enforcement and assignment of bailiff(s).

3. The bailiff of civil enforcement agency has authority to enforce the part of civil obligations associated with assets, enforce performance or non-performance of certain tasks in the declaration of bankruptcy, seize assets, transfer the assets to the purchaser as prescribed in the Law on Civil Judgment Enforcement, and request the bankruptcy trustee or asset management enterprise appointed by the judge in writing to liquidate remaining assets of the enterprise/cooperatives declared bankrupt.

Article 6. Explanation of court’s decision on bankruptcy settlement

The civil enforcement agency may request the court that issued a decision on bankruptcy settlement to provide explanation for certain matters that are unclear and difficult to enforce, or unidentifiable as prescribed in Clause 2 Article 179 of the Law on Civil Judgment Enforcement.

Article 7. Fund transfer charge

When the bankruptcy trustee, bailiff, court, or civil enforcement agency deposits proceeds to an account opened at a bank by the court or civil enforcement agency, the charge for such transaction shall be paid from the assets of the enterprise/cooperatives declared bankrupt at the transaction time.

Article 8. Delegation of judgment enforcement

When enforcing a court’s decision on bankruptcy settlement, the civil enforcement agency may delegate the judgment enforcement as prescribed in Articles 55, 56, and 57 of the Law on Civil Judgment Enforcement and Article 16 of Government’s Decree No. 62/2015/ND-CP dated July 18, 2015 on guidelines for the Law on Civil Judgment Enforcement.

If a court’s decision on bankruptcy settlement is totally delegated to a single civil enforcement agency (hereinafter referred to as delegate) from the civil enforcement agency which is competent to enforce the court’s decision on bankruptcy settlement (hereinafter referred to as delegator), the delegate shall open an account in the name of the delegator and then deposit proceeds from the enterprise/cooperatives declared bankrupt to such account and carry out the plan for division of assets stated in the declaration of bankruptcy. In a case that the delegator has opened an account before receiving a notice of acceptance of delegation from delegate, the amount of the account (if any) shall be transferred to the new account of the delegate for further actions; the account of delegator shall be cancelled.

If a court’s decision on bankruptcy settlement is partly delegated to a civil enforcement agency, such delegate shall issue a decision on judgment enforcement as prescribed. Within 3 working days from the date on which an amount of money or assets is collected, the delegate shall transfer it to the account of the delegator and notify such delegator of progress of division of assets as specified in the declaration of bankruptcy. The obligation of the delegate is deemed completed after it finished the judgment enforcement as to the authorized matters and the money transfer to the delegator.

Article 9. Valuation and revaluation of assets

1. The valuation and revaluation of assets in a case where a bailiff is conducting the coercive debt collection against enterprise/cooperatives declared bankrupt shall be carried out as prescribed in Clause 2 Article 73, Article 98, Article 99 of the Law on Civil Judgment Enforcement, Articles 17, 25, and 26 of Decree No. 62/2015/ND-CP.

2. The valuation and revaluation in a case where a bankruptcy trustee or asset management enterprise is liquidating the remaining assets of the enterprise/cooperatives declared bankrupt shall be carried out as prescribed in Articles 122 and 123 of the Law on Bankruptcy.

a) The bankruptcy trustee or asset management enterprise shall select and conclude a service contract with a valuation organization in the province or central-affiliated city where the assets to be liquidated are located within 5 working days from the date on which a request for liquidation of assets made by the bailiff is received. If the bankruptcy trustee or asset management enterprise is unable to conclude a service contract with a valuation organization in the province or central-affiliated city where the assets to be liquidated are located, another valuation organization outside that province or central-affiliated city is also permitted.

b) If the bankruptcy trustee or asset management enterprise fails to select a valuation organization, it shall send a report to the bailiff. Within 3 working days from receipt of the report of the bankruptcy trustee or asset management enterprise, the bailiff shall select the valuation organization.

c) If the bailiff still fails to conclude a valuation contract, it shall request the bankruptcy trustee or asset management enterprise to seek advice from the finance authority at the same administrative level or a body specialized in the assets to be liquidated before valuating them. Within 3 working days from receipt of request made by the bailiff, the bankruptcy trustee or asset management enterprise shall seek advice from a finance authority or specialized body. The consultation with the finance authority or specialized body shall be made in writing or a record bearing signatures of the bankruptcy trustee or asset management enterprise and the finance authority or specialized body. Within 15 days from receipt of the request of bankruptcy trustee or asset management enterprise but the finance authority or specialized body fails to give opinions in writing, the bankruptcy trustee or asset management enterprise shall request the President of People’s Committee at the same administrative level to direct such specialized agencies to do so in order for the bankruptcy trustee to value the distrained assets.

d) If the assets to be liquidated are at risk of facing destruction or deterioration, the bankruptcy trustee or asset management enterprise shall seek advice from the finance authority or specialized body before valuing them. The consultation with the finance authority or specialized body shall be made in writing or a record bearing signatures of the bankruptcy trustee or asset management enterprise and the finance authority or specialized body.

3. The bailiff shall, subject to Clause 2 Article 123 of the Law on Bankruptcy, consider whether to revalue the assets in case of liquidation of assets. The expenses associated with revaluation shall be paid from the value of assets of the enterprise/cooperatives declared bankrupt. If the bankruptcy trustee or asset management enterprise, during revaluing the assets, commits violations against regulations on bankruptcy, law on valuation of assets leading deviation of the results of valuation, the bailiff shall consult with the court, procuracy, finance authority at the same administrative level and other specialized body and then make a document prescribing the faults of the bankruptcy trustee; in this case, the expenses associated with revaluation shall be borne by the bankruptcy trustee or asset management enterprise and to be deducted from the bankruptcy trustee’s remuneration.

Article 10. Sale of assets

1. The sale of assets in a case where a bailiff conducts the coercive debt collection against enterprise/cooperatives declared bankrupt shall be carried out as prescribed in Article 101 of the Law on Civil Judgment Enforcement, Articles 27 of Decree No. 62/2015/ND-CP.

2. The sale of assets in a case where a bankruptcy trustee or asset management enterprise is liquidating the remaining assets of the enterprise/cooperatives declared bankrupt shall be carried out as prescribed in Articles 122 and 123 of the Law on Bankruptcy.

a) If the bankruptcy trustee or asset management enterprise fails to select an auction organization, it shall send a report to the bailiff. Within 3 working days from receipt of the report of the bankruptcy trustee or asset management enterprise, the bailiff shall select the auction organization.

b) Within 5 working days from receipt of notice from the auction organization that there was no bidder when the assets were put up for initial auction, when the deadline for notice of sale of assets expired, or the auction was unsuccessful, the bankruptcy trustee or asset management enterprise shall request the bailiff in writing to issue a decision on reducing the prices of assets for keeping holding another auction. The bailiff shall reduce the prices as prescribed in law on civil judgment enforcement and request the bankruptcy trustee in writing to keep holding another auction.

Article 11. Bailiff overseeing bankruptcy trustee or asset management enterprise liquidating the remaining assets of the enterprise/cooperatives declared bankrupt

1. The bailiff shall oversee the bankruptcy trustee or asset management enterprise which is liquidating the assets of enterprise/cooperatives declared bankrupt after requesting it to carry out such a liquidation as prescribed in Clauses 1, 2 Article 121 of the Law on Bankruptcy.

The bailiff shall oversee the bankruptcy trustee or asset management enterprise through reports received.

2. The bailiff shall oversee the following matters:

a) Before selecting or replacing the valuation organization or auction organization, the bankruptcy trustee or asset management enterprise shall report it to the bailiff. The report shall indicate the assets to be valued or auctioned; name and address of the valuation or auction organization; reasons for selecting the valuation or auction organization. If the valuation or auction organization is replaced, the report must provide explanation for the replacement.

b) If the bankruptcy trustee or asset management enterprise fails to select a valuation or auction organization, it shall send a report to the bailiff immediately. The report shall indicate the assets to be valued or auctioned; process of selection; reasons for failure to select a valuation or auction organization.

If the bankruptcy trustee or asset management enterprise seeks advice from the finance authority or specialized body, it shall report it to the bailiff after receiving the opinions from these authorities/bodies. The report shall indicate the opinions of the specialized body and state the price that the bankruptcy trustee or asset management enterprise selects.

c) Before valuation, if the assets to be liquidated are at risk of facing destruction or deterioration, the bankruptcy trustee or asset management enterprise shall report it to the bailiff in writing. The report shall indicate the assets to be valued; reasons for valuation; opinions of the finance authority or specialized body in terms of prices of assets.

d) As soon as practicable after an auction was unsuccessful, the bankruptcy trustee or asset management enterprise shall report it to the bailiff. The report shall indicate the assets to be auctioned; name and address of the auction organization; process of auction; reasons for unsuccessful auction.

dd) Before selling the assets without through an auction, the bankruptcy trustee or asset shall report it to the bailiff in writing. The report shall indicate that the assets are not going to be sold through an auction and reasons for not putting them up for auction.

e) Result

Promptly after the assets were sold, the bankruptcy trustee or asset management enterprise shall report the result to the bailiff. As for liquidated assets that were not totally sold, the bankruptcy trustee shall report the sold part of these assets to the bailiff.

A report on result shall at least contain: Date; name of bankruptcy trustee or asset management enterprise; a document which requests the bankruptcy trustee or asset management enterprise to carry out the liquidation of assets; name and address of the enterprise/cooperatives declared bankrupt; forms of sale; the sold assets, proceeds; and unsold assets.

g) Dealing with proceeds and assets after sale

As quickly as possible after collecting proceeds from liquidation, the bankruptcy trustee or asset management enterprise shall report it to the bailiff and transfer such amount of money to the account in the name of civil enforcement agency opened by the bailiff. Within 10 days from the date on which the civil enforcement agency receives money, the bailiff shall make payments to the involved parties. Procedures for payments and handling of payments that involved parties have not received are specified in the law on civil judgment enforcement.

3. If the bailiff finds that the bankruptcy trustee or asset management enterprise committed violations of law leading compromise of impartiality rule in the course of liquidation practicing, the bailiff shall request it in writing to comply with regulation or request the court to replace the bankruptcy trustee or asset management enterprise as prescribed in Clause 4 Article 17 of the Law on Bankruptcy.

If the violation against law on bankruptcy or law on asset valuation leads a deviation of valuation result, Clause 2 Article 17 of Decree No. 22/2015/ND-CP dated February 16, 2015 on guidelines for the Law on Bankruptcy in terms of bankruptcy trustee and assets management and liquidation practicing.

Article 12. Actions against assets sold before the declaration of bankruptcy

If a judge decided the sale of assets of the insolvent enterprise/cooperatives after initiation of bankruptcy process to secure the bankruptcy costs as prescribed in Clause 6 Article 9 of the Law on Bankruptcy but the assets have not been sold until the judge declared the enterprise/cooperatives bankrupt and transferred the case to the civil enforcement agency for enforcement thereafter, the bailiff shall request the bankruptcy trustee to value the assets as prescribed in Articles 122, 123 of the Law on Bankruptcy and hold an auction as prescribed.

Article 13. Handover of assets and documents thereof to purchasers of liquidated assets

1. Within 30 days after a purchaser (winning bidder) made full payment but the bankruptcy trustee or asset management enterprise fails to hand over assets and documents thereof to the winning bidder, the bankruptcy trustee or asset management enterprise shall request the civil enforcement agency in writing and hand over all documents to it for carrying out the coercive handover of assets and documents.

2. Within 30 days, or within 60 days in case of difficult case, from receipt of request from the bankruptcy trustee, the civil enforcement agency shall carry out the coercive handover of assets and documents thereof to the purchaser as prescribed in law on civil judgment enforcement. The bankruptcy trustee, asset management enterprise and auction organization shall cooperate with the civil enforcement agency in carry out the coercive handover of assets and documents thereof.

Article 14. Division of assets after auction

The bailiff shall implement the plan for division of assets according to the declaration of bankruptcy as prescribed in Point d Clause 2 Article 120 of the Law on Bankruptcy 2014. If the value of liquidated assets is not sufficient to cover all payments as a result that they were partly unsold or deteriorated, such amount shall be firstly deducted from relevant costs as prescribed, and then be paid to creditors at the same order of priority in proportion to their rates of debts.

Article 15. Handover of assets that bankruptcy trustee or asset management enterprise fails to sell

Within 5 working days from the expire date of liquidation as prescribed in Clause 4 Article 121 of the Law on Bankruptcy, the bankruptcy trustee or asset management enterprise shall report the termination of liquidation in writing to the bailiff, enclosed with a list of assets that have not been liquidated, and then hand over all assets and documents thereof to the bailiff for further liquidation as per the law. The bailiff shall value and sell assets of the enterprise/cooperatives declared bankrupt as prescribed in law on civil judgment enforcement.

Article 16. Fee for enforcement of court’s decision on bankruptcy settlement

The judgment creditor in the court’s decision on bankruptcy settlement shall pay an amount of civil judgment enforcement fee as prescribed in Article 60 of the Law on Civil Judgment Enforcement and Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance on amounts, collection and payment, management and use of civil judgment enforcement fees.

With regard to the amount of money or assets given to the judgment creditor by the bankruptcy trustee or asset management enterprise from the sale of liquidated assets, the civil enforcement agency may not collect a judgment enforcement fee.

Article 17. Suspension and termination of enforcement of declaration of bankruptcy.

The suspension and termination of enforcement of a declaration of bankruptcy as to liquidation of assets are specified in the Law on Bankruptcy.

The suspension and termination of enforcement of a declaration of bankruptcy as to other obligations are specified in the Law on Civil Judgment Enforcement.

Article 18. Forwarding request sent to bankruptcy trustee or asset management enterprise for liquidation of assets

The request sent to the bankruptcy trustee or asset management enterprise for liquidation of assets shall be forwarded to the court, Procuracy, and participants within 3 working days from the date on which the request was made.

Article 19. Handling of complaints against enforcement of court’s decision on bankruptcy settlement

1. An involved party, person with relevant interests and obligations, or the bankruptcy trustee is entitled to file a complaint against a decision or act of the head of civil enforcement agency or bailiff if he/she has grounds for presuming that such decision or act is against the law and infringement of his/her lawful rights and interests in accordance with the Law on Civil Judgment Enforcement.

2. An involved party, person with relevant interests and obligations is entitled to file a complaint against a decision or act of the bankruptcy trustee.

The power to handle complains and denunciation against the bankruptcy trustee is specified in Clause 8 Article 22 and Point c Clause 1, Point dd Clause 2 Article 24 of Decree No. 22/2015/ND-CP.

Chapter III

IMPLEMENTATIONORGANIZATION

Article 20. Transitionalprovisions

If the asset management group established under the Law on Bankruptcy 2004, in a case, has not been dissolved, the bailiff shall request the competent court to appoint a bankruptcy trustee or asset management enterprise as prescribed in Article 131 of the Law on Bankruptcy 2014 and Clause 1 Article 28 of Decree No. 22/2015/ND-CP. If the court fails to appoint a bankruptcy trustee, the bailiff shall keep the judgment enforcement as prescribed in the Law on Bankruptcy 2014.

If a judgment was partly enforced and the remaining part remains un-enforced before the effective date of this Joint Circular but all procedures for judgment enforcement are followed in accordance with the Law on Civil Judgment Enforcement, the Law on Bankruptcy and their guiding documents, the judgment enforcement result shall be recognized; further judgment enforcement shall keep comply with regulations in this Joint Circular.

Article 21.Effect

This Joint Circular takes effect on August 01, 2018.

In case of difficulties that arise during the implementation, civil enforcement agencies, People’s Court and the People’s Procuracy at levels shall report them to the Ministry of Justice, the Supreme People’s Court, the Supreme People’s Procuracy for consideration./.

For the Chief Justice of Supreme People’s Court

The Deputy Chief Justice

Nguyen Tri Tue

For the Chief Procurator of the Supreme People’s Procuracy

The Deputy Chief Procurator

Tran Cong Phan

For the Minister of Justice

The Deputy Minister

Tran Tien Dung