Thông tư 216/2016/TT-BTC về phí thi hành án dân sự

CIRCULAR

On prescribing the rates, collection, remittance, management and use of civil judgment enforcement charge

Pursuant to the Law on Charges and Fees dated November 25, 2015;

Pursuant to the Law on the State Budget dated June 25, 2015;

Pursuant to the Government’s Decree No. 120/2016/ND-CP dated August 23, 2016 on detailing and guiding the implementation of a number of articles of the Law on Charges and Fees;

Pursuant to 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;

Pursuant to the Government’s Decree No. 215/2013/ND-CP dated December 23, 2013, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Tax Policy Department,

The Minister of Finance promulgates the Circular prescribing the rates, collection, remittance, management and use of civil judgment enforcement charge.

Article 1. Scope of regulation and subjects of application

1. This Circular prescribes the rates, collection, remittance, management and use of civil judgment enforcement charge.

2. This Circular applies to civil judgment enforcement charge payers and collectors, and other organizations, individuals related to the collection, remittance, management and use of civil judgment enforcement charge.

Article 2. Civil judgment enforcement charge payers

Judgment creditors must, when receiving money or assets according to judgments, rulings of courts, competition case settlement decisions of the Council for settlement of competition cases; awards and decisions of commercial arbitrations, pay the civil judgment enforcement charge as prescribed in this Circular.

Article 3. Civil judgment enforcement charge collectors

Civil judgment enforcement agencies shall be civil judgment enforcement charge collectors.

Article 4. Rates of the civil judgment enforcement charge

1. Judgment creditors must pay the civil judgment enforcement charge as follows:

a) 3% of the actually received money amount or value of assets if the actually received money amount or value of assets exceeds twice the base salary specified by the State that is applicable to cadres, civil servants, public employees and armed forces but not more than VND 5,000,000,000;

b) VND 150,000,000 plus 2% of the actually received money amount or value of assets exceeding VND 5,000,000,000 if the actually received money or value of assets exceeds VND 5,000,000,000 but not more than VND 7,000,000,000;

c) VND 190,000,000 plus 1% of the actually received money amount or value of assets exceeding VND 7,000,000,000 if the actually received money or value of assets exceeds VND 7,000,000,000 but not more than VND 10,000,000,000;

d) VND 220,000,000 plus 0.5% of the actually received money amount or value of assets exceeding VND 10,000,000,000 if the actually received money or value of assets exceeds VND 10,000,000,000 but not more than VND 15,000,000,000;

dd) VND 245,000,000 plus 0.01% of the actually received money or value of assets exceeding VND 15,000,000,000 if the actually received money or value of assets exceeds VND 15,000,000,000.

2. For cases of division of common property, inheritance; property division upon divorce; cases in which each party has both rights and obligations related to assets for judgment enforcement at the same time (the judgment enforcement may be only requested by a party), the person that is assigned money, assets for judgment enforcement by the civil judgment enforcement agency shall pay the amount of civil judgment enforcement charge corresponding the value of actually received money, assets.

For example: The court handles the divorce case between Mr. A and Mrs. B, for the content of property division upon divorce, Mrs. B shall receive a house valued at VND 500,000,000 and must pay Mr. A VND 200,000,000. In this case, each party must pay the civil judgment enforcement charge that is calculated according to each party’s value of actually received asset, to be specific:

Mr. A must pay the following civil judgment enforcement charge: 3% x VND 200,000,000 = VND 6,000,000;

Mrs. B must pay the following civil judgment enforcement charge:  3% x (VND 500,000,000 - VND 200,000,000) = VND 9,000,000.

3. In case an asset or amount of money is received by more than one person under a judgment or ruling but only one or some of them request enforcement and the enforcement officer has handed over such money or asset to the requestor or his/her representative for management, such person must pay the civil judgment enforcement charge for the entire value of actually received money or asset according to the rates as prescribed in Clause 1 of this Article.

4. In cases where a civil judgment enforcement agency has issued a judgment enforcement decision but not a decision on coercive judgment enforcement or has issued a decision on coercive judgment enforcement but such coercive judgment enforcement has not been implemented, the litigants have handed money or asset over, only one third of the civil judgment enforcement charge rate as specified in Clause 1 of this Article for the actually received money or asset shall be collected, except for cases defined in Clause 8, Article 6 of this Circular.

5. If the civil judgment enforcement agency has collected money or has implemented the coercive judgment enforcement, the judgment creditor must pay 100% of the civil judgment enforcement charge rate as prescribed in Clause 1 of this Article, for the actually received money or asset.

Article 5. Collection, remittance of the civil judgment enforcement charge

1. The head of the civil judgment enforcement charge collector shall issue the decision on civil judgment enforcement charge collection. In case the civil judgment enforcement charge must be collected many times, for each collection time, head of the charge collector shall issue a decision on civil judgment enforcement charge collection according to regulations.

2. If judgment creditor may receive money, assets in many times according to the law, the total amount of civil judgment enforcement charge shall be equal to the civil judgment enforcement charge that he/she must pay in case of receiving money, assets for one time according to the rates defined in Article 4 of this Circular.

For example: Mr. A is entitled to a judgment enforcement of VND 18,000,000,000 and he has received this amount in 06 times (the first time: receives VND 3,000,000,000; the second time: receives VND 4,000,000,000; the third time: receives VND 4,500,000,000; the fourth time: receives VND 4,000,000,000; the fifth time: receives VND 1,500,000,000; the sixth time: receives VND 1,000,000,000), the amount of civil judgment enforcement charge that Mr. A must pay for each time shall be determined as follows:

- Mr. A must pay the following civil judgment enforcement charge for the first time: 3% x VND 3,000,000,000 = VND 90,000,000.

- Mr. A must pay the following civil judgment enforcement charge for the second time: (3% x VND 2,000,000,000) + (2% x VND 2,000,000,000) = VND 100,000,000.

- Mr. A must pay the following civil judgment enforcement charge for the third time: (1% x VND 3,000,000,000) + (0.5% x VND 1,500,000,000) = VND 37,500,000.

- Mr. A must pay the following civil judgment enforcement charge for the fourth time: (0.5% x VND 3,500,000,000) + (0.01% x VND 500,000,000) = VND 17,550,000.

- Mr. A must pay the following civil judgment enforcement charge for the fifth time: 0.01% x VND 1,500,000,000 = VND 150,000.

- Mr. A must pay the following civil judgment enforcement charge for the sixth time: 0.01% x VND 1,000,000,000 = VND 100,000.

Total amount of civil judgment enforcement charge that Mr. A has to pay in this case is VND 245,300,000. Such amount is equal to the amount of civil judgment enforcement charge that Mr. A has to pay in case of receiving money for one time for the amount VND 18,000,000,000 and is: VND 245,000,000 + (0.01% x VND 3,000,000,000) = VND 245,300,000.

3. In cases where the judgment creditor receives money or assets in installments, in which the money amount or asset value received each time does not exceed twice the base salary for cadres, civil servants, public employees and armed forces prescribed by the State, and the total received money amount and asset value is more than twice the base salary, the civil judgment enforcement charge shall be collected as prescribed and the charge collection shall comply with Clause 1, Article 4 of this Circular.

For example: Mr. B is entitled to a judgment enforcement of VND 5,000,000 but he receives this amount in 04 times (the first time: receives VND 1,000,000; the second time: receives VND 1,000,000; the third time: receives VND 1,000,000; the fourth time: receives VND 2,000, 000), the amount of civil judgment enforcement charge that Mr. B must pay shall be determined as follows:

- Mr. B shall not have to pay charge for the first time of receiving VND 1,000,000.

- Mr. B shall not have to pay charge for the second time of receiving VND 1,000,000.

- At the third time, Mr. B receives VND 1,000,000, then, he shall have to pay charge for 3 times of receiving money as follows: 3% x (VND 1,000,000 + VND 1,000,000 + VND 1,000,000) = VND 90,000.

- At the fourth time, Mr. B receives VND 2,000,000, then, he shall have to pay charge as follows: 3% x VND 2,000,000 = VND 60,000.

Total amount of civil judgment enforcement charge that Mr. B has to pay after receiving VND 5,000,000 is: VND 90,000 + VND 60,000 = VND 150,000. Such amount is equal to the total amount of civil judgment enforcement charge in case of receiving money or asset for one time: 3% x VND 5,000,000 = VND 150,000.

4. The collection of civil judgment enforcement charge shall be carried out as follows:

a) In case where the civil judgment enforcement agencies pay in cash, by bank transfer or by postal office to the judgment creditors, the civil judgment enforcement charge payable by the judgment creditors shall be deducted before paying them.

b) In case where the court does not specify the asset value or the specified asset value is no longer appropriate (changed by more than 20%) in comparison with the market price, the charge collectors shall organize a valuation in order to determine the enforcement charge payable by the judgment creditors. The valuation cost shall be paid by the civil judgment enforcement agencies from the retained enforcement charge.

At least 15 days before the delivery of assets, the charge collectors shall notify the civil judgment enforcement charge payable by the judgment creditors as prescribed by this Circular.

5. In case where there are mistakes about the payable civil judgment enforcement charge, the charge collectors shall re-calculate as prescribed. The charge collectors shall carry out procedures to refund the excess amount or carry out the additional collection of the outstanding civil judgment enforcement charge.

6. In case of entrusting judgment enforcement, entrusting agencies must clearly state the collected civil judgment enforcement charge and the civil judgment enforcement charge to be collected.

The entrusted agencies must base on the entrustment decision to continue collecting civil judgment enforcement charge and are allowed to manage and use the collected civil judgment enforcement charge in accordance with this Circular.

Article 6. Cases in which civil judgment enforcement charge is exempted

The judgment creditors shall be exempted from paying the civil judgment enforcement charge when receiving the following money or assets:

1. Alimony, compensation for loss of life, health, dignity; salary; redundancy pay, severance pay; social insurance payout, compensation for dismissal or termination of labor contracts.

2. Funding for execution of the State's social policy programs on hunger eradication and poverty reduction, support for remote areas, disadvantaged areas and extremely disadvantaged areas, funding directly serving healthcare and education of the people not for business purposes, received by the judgment creditors.

3. The received items have only spiritual value, associated with the recipient's identity, and do not have monetary value.

4. An amount of money or asset value according to the judgment enforcement request does not exceed twice the base salary for cadres, civil servants, public employees and armed forces specified by the State.

5. Collected loans of the Vietnam Bank for Social Policies that are granted to poor people and other policy beneficiaries.

6. The Court’s judgment or ruling specifies that there is no ceiling level, and court fee amounts subject to no ceiling level during the trial.

7. Money or assets returned to the litigants in case of active judgment execution as prescribed at Point b, Clause 2, Article 36 of the Law on Enforcement of Civil Judgments.

8. Money or assets that the litigant voluntarily executes within the time limit of voluntary judgment execution as provided in Article 45 of the Law on Enforcement of Civil Judgments.

Article 7. Exemption and reduction of civil judgment enforcement charge

1. The judgment creditor shall be exempted from civil judgment enforcement charge if he/she:

a) Is eligible for preferential regime for people with meritorious services to the revolution;

b) Is living alone (confirmed by the People’s Committee of the commune where he/she resides); is disabled or subject to chronically illness with a summary of medical record certified by a medical examination and treatment facility of district or higher level;

c) Is verified after the civil judgment enforcement agency has issued a decision on lacking of judgment execution conditions as prescribed in Clause 1, Article 44a of the Law on Enforcement of Civil Judgments and the civil judgment enforcement agency has liquidated the assets to satisfy the judgment.

2. The judgment creditor shall be exempted from paying the civil judgment enforcement charge in the following cases:

a) Up to 80% reduction of the civil judgment enforcement charge if the judgment creditor is facing financial difficulties according to standards of poor households and such financial difficulties are confirmed by the People’s Committee of the commune where he/she resides or by his/her employer;

b) 30% reduction of the civil judgment enforcement charge proportional to the money obtained from liquidation of the judgment debtor’s assets which is verified by the judgment creditor and the civil judgment enforcement agency is able to liquidate the assets to satisfy the judgment without having to take forcible measures, unless the assets are specified in the Court or commercial arbitration’s judgment or ruling;

c) 20% reduction of the civil judgment enforcement charge in the case specified in Point b of this Clause if forcible measures have to be taken, unless the assets are specified in the Court or commercial arbitration’s judgment or ruling.

3. In order to be entitled to exemption or reduction of civil judgment enforcement charge, the litigant shall make a written proposal for exemption or reduction of civil judgment enforcement charge, accompanied with relevant documents proving his/her exemption or reduction conditions according to Clauses 1 and 2 of this Article.

4. A written proposal for exemption or reduction of civil judgment enforcement charge, accompanied with relevant documents shall be submitted to the charge collector. In case such written proposal and documents are incomplete, the charge collector shall guide the requester to supplement as prescribed.

Within 05 (five) working days after receiving a complete dossier, head of the charge collector shall review and issue a decision on exemption or reduction of the civil judgment enforcement charge according to this Circular, or send a written notice to the charge payer about the fact that he/she is not entitled to civil judgment enforcement charge exemption or reduction, clearly stating reason.

The consideration for civil judgment enforcement charge exemption or reduction shall be performed to each decision on civil judgment enforcement charge collection, except for the cases where the person considered for civil judgment enforcement charge exemption or reduction is eligible for preferential regime for people with meritorious services to the revolution.

Article 8. Declaration and remittance of civil judgment enforcement charges

1. By the 5th of every month at the latest, the charge collector shall deposit the civil judgment enforcement charge amount collected in the previous month to its State Treasury account of charges pending remittance into the state budget.

2. The charge collector shall declare and remit the collected civil judgment enforcement charge amount on an annual basis as guided in Clause 3, Article 19, and Clause 2, Article 26, of the Minister of Finance’s Circular No. 156/2013/TT-BTC dated November 06, 2013, guiding the implementation of a number of articles of the Law on Tax Administration, the Law Amending and Supplementing a Number of Articles of the Law on Tax Administration, and the Government’s Decree No. 83/2013/ND-CP dated July 22, 2013.

Article 9. Management and use of civil judgment enforcement charges

1. The charge collector shall remit the whole collected civil judgment enforcement charge amount into the state budget, except for the cases specified in Clause 2 of this Article. Funding for perform of work and charge collection shall be allocated in the estimates of the collector by the state budget according to the state budget expenditure regimes and norms.

2. In case where the charge collector implements the financial mechanism in accordance with the Government’s or Prime Minister’s decision on the mechanism of autonomy and self-responsibility in using payroll and funding for administrative management by state agencies, the civil judgment enforcement charge management and use is prescribed as follows:

a) The charge collector shall retain 65% of the collected charge amount to cover expenses prescribed in Article 5 of the Government’s Decree No. 120/2016/ND-CP dated August 23, 2016.

In case where custody facilities or criminal judgment enforcement agencies of district-level Divisions of Public Security collect money and assets for judgment enforcement: Within 10 days after the civil judgment enforcement agency collects civil judgment enforcement charges for the amount of money and assets collected by custody facilities or criminal judgment enforcement agencies of district-level Divisions of Public Security, the civil judgment enforcement agency shall transfer 65% of the collected charge amount to accounts of the custody facilities or criminal judgment enforcement agencies of district-level Divisions of Public Security that have collected money and assets for judgment enforcement. Such amount shall be used to cover expenses prescribed in Article 5 of the Government’s Decree No. 120/2016/ND-CP dated August 23, 2016.

b) The charge collector shall remit 20% of the collected charge amount into the account of the General Department of Civil Judgment Enforcement under the Ministry of Justice (or the Judgment Enforcement Department under the Ministry of National Defence, in case the charge collector is a judgment enforcement agency of military zones or equivalent level) opened at the State Treasury. The General Department of Civil Judgment Enforcement under the Ministry of Justice (or the Judgment Enforcement Department under the Ministry of National Defence) shall implement the charge balancing for charge collectors in localities where the collected charge amount cannot fully cover expenses prescribed in Article 5 of the Government’s Decree No. 120/2016/ND-CP dated August 23, 2016.

The charge amount remitted to the account of the General Department of Civil Judgment Enforcement (or the Judgment Enforcement Department under the Ministry of National Defence, in case the charge collector is a judgment enforcement agency of military zones or equivalent level) by charge collector shall be determined as 100%. The General Department of Civil Judgment Enforcement (or the Judgment Enforcement Department under the Ministry of National Defence) shall implement the charge balancing with the managed expendable judgment enforcement charge, balance the judgment enforcement charge (expenses for stationery, bookkeeping, monitoring, aggregation of charge allocation data, communications, training, professional guidance, inspection, reporting and other activities directly related to the managing and regulating the judgment enforcement charge) and other expenses as prescribed in Article 5 of the Government’s Decree No. 120/2016/ND-CP dated August 23, 2016, but annual expense shall not exceeded 35% of the total amount of judgment enforcement charge remitted by units.

Annually, the charge collector must carry out the expenditure and revenue settlement on the basis of realistic status. After settlement in accordance with regime, the remained expenses are allowed to transfer to the following year for continuing expense under regulated regime.

c) The charge collector shall remit 25% collected money to the state budget.

Article 10. Organization of implementation

1. This Circular takes effect on January 01, 2017 and replaces the Joint Circular No. 144/2010/TTLT-BTC-BTP dated September 22, 2010 of the Minister of Finance and the Minister of Justice, guiding the collection, remittance, management and use of charges for civil judgment enforcement.

2. Other contents related to charge collection and remittance, management and use, documents for charge collection, and publicity of regulations on collection which are not mentioned in this Circular must comply with the Law on Charges and Fees; the Government’s Decree No. 120/2016/ND-CP dated August 23, 2016; the Minister of Finance’s Circular No. 156/2013/TT-BTC dated November 06, 2013; and the Minister of Finance’s Circulars stipulating the printing, distribution, management and use of documents for the collection of charges and fees belonging to the state budget and the amending, supplementing or replacing documents (if any).

3. Any problems arising in the course of implementation should be promptly reported to the Ministry of Finance for consideration and additional guidance./.