The scope of application should be expanded to include assets that are not the subject of the dispute. Accordingly, the conditions of application should also be revised in the following direction: " The prohibition on transferring property rights is applied if during the process of resolving the case there is a basis showing that it is necessary to prevent the person possessing or holding the property from transferring property rights to another person".
- On measures to prohibit changing the current status of assets
Article 110 of the Civil Procedure Code stipulates that this measure can only be applied when the following conditions are met: “There is evidence that the person possessing or holding the disputed property has taken the action of dismantling, assembling, constructing additional structures or has taken other actions that change the current status of the property”. Thus, similar to the two measures mentioned above, the law requires that there must be dismantling, assembling, constructing additional structures... that is, the act of changing the current status of the property must have occurred and is occurring in reality for the parties to have grounds to request the Court to apply this measure, and thus, the Court’s intervention in resolving conflicts between the parties is too late and does not achieve the desired results.
On the other hand, this provision also makes it difficult for the parties to provide evidence of the need to apply this measure to protect their rights. Because, in order to avoid performing their obligations to the entitled party, the person possessing or holding the property will use all means to change the current status of the property without others knowing. Therefore, the person requesting the application of BPKCTT will find it difficult to obtain evidence to provide to the Court, and the Court will have no basis to apply this measure. Therefore, to improve the effectiveness of applying the measure Prohibiting the change of the current status of disputed assets, it is necessary to change the name of this measure to "Prohibiting the change of the current status of assets", accordingly, the conditions for applying the measure Prohibiting the change of the current status of assets prescribed in Article 110 of the Civil Procedure Code also need to be revised as follows: "Prohibiting the change of the current status of assets is applied if during the process of resolving the case there is a basis showing that it is necessary to prevent the person possessing or holding the asset from disassembling, assembling, constructing more or engaging in other acts that change the current status of that asset ".
- The Civil Procedure Code needs to have additional provisions that if the Court does not issue a decision to apply temporary restraining order, it must notify the Procuracy.
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The application, change, cancellation or failure to issue a decision to apply, change, cancel or delay in issuing a decision to apply a temporary restraining order directly affects the rights of the parties. However, Clause 2, Article 123 of the Civil Procedure Code only stipulates: “ The court must issue or immediately send a decision to apply, change or cancel a temporary restraining order immediately after issuing the decision to the applicant, the person subject to the temporary restraining order, relevant individuals, agencies and organizations, the competent civil judgment enforcement agency and the People's Procuracy at the same level ”.
Thus, the Civil Procedure Code does not have a provision that in case the Court does not issue a decision to apply temporary restraining order, it must notify the Procuracy. Therefore, if the failure to issue a decision to apply temporary restraining order causes damage to the litigant, the Procuracy will not know to exercise the right to make a recommendation. This provision does not guarantee the rights of the litigants. Therefore, in order to improve the effectiveness of the work of supervising judicial activities of the Procuracy, and at the same time to improve the effectiveness of the application of temporary restraining order, the Civil Procedure Code needs to have additional provisions that in case the Court does not issue a decision to apply temporary restraining order, it must notify the Procuracy in writing.
- The Civil Procedure Code needs to have additional provisions on the right to complain, make recommendations and resolve complaints and recommendations on decisions to apply, change, cancel or not apply, change, cancel BPKCTT:
According to the provisions of Article 124 and Article 125 of the Criminal Procedure Code, the parties have the right to complain, the Procuracy has the right to make recommendations to the Chief Judge who is handling the case about the decision to apply, change, or cancel the temporary restraining order... However, Clause 2, Article 125 of the Criminal Procedure Code stipulates that the decision to resolve the complaint by the Chief Judge of the Court of First Instance is the final decision . This provision does not really protect the rights of the parties. Because, as analyzed in Chapter 2 of the thesis, the Judge who makes the decision to apply, change, cancel or not apply, change, or cancel the temporary restraining order and the Chief Judge of the Court handling the case are people from the same agency, have a superior-level relationship.
subordinates, leaders, and employees should often cover up and protect each other. The settlement of complaints by litigants against subordinate judges also affects the competition achievements of judges in particular and the achievements of the Court in general, so it is often not impartial and objective. In practice, the decisions to settle complaints by the Chief Justice of the Court of First Instance regarding decisions to apply, change, cancel or not apply, change, cancel BPKCTT of subordinate judges all maintain the decisions of the previous judges. Therefore, to protect the rights of the parties, Clause 2, Article 125 of the Civil Procedure Code needs to be amended and supplemented in the direction: " In case the parties and the Procuracy do not agree with the content of the complaint settlement of the Chief Justice of the Court handling the case, the parties and the Procuracy have the right to complain and make recommendations to the immediate superior Court. The decision to settle the complaint and recommendation of the Chief Justice of the immediate superior Court is the final decision and must be issued or sent immediately in accordance with the provisions of Clause 2, Article 123 of this Code".
- The Civil Procedure Code needs to have additional provisions on the Court's responsibility in not making a decision or delaying making a decision to apply the temporary restraining order, causing damage to the litigant.
Clause 2, Article 101 of the Civil Procedure Code stipulates the Court's responsibility in case of incorrect application of temporary detention measures causing damage to the person subject to temporary detention measures or to a third party, compensation must be paid in 3 cases: The Court applies temporary detention measures on its own; The Court applies temporary detention measures different from those requested by individuals, agencies and organizations; The Court applies temporary detention measures beyond the request for temporary detention measures of individuals, agencies and organizations. It can be affirmed that the cases foreseen by the above Articles of the Law almost never occur in reality.
Meanwhile, a very common reality is that in cases where the Court does not issue or delays in issuing a decision to apply BPKCTT causing damage to the litigant, the law has not yet stipulated the Court's responsibility for compensation in this very specific case. Therefore, to protect the rights of the litigant,
Clause 2, Article 101 of the Civil Procedure Code needs to stipulate additional cases where the Court does not issue a decision or delays in issuing a decision to apply temporary emergency measures, causing damage to the person requesting the application of temporary emergency measures or a third party, and must compensate.
- The Civil Procedure Code needs to revise the provisions on the implementation of protection measures.
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To ensure the legitimate interests of people subject to BPKCTT and prevent
To prevent the abuse of the right to request from the requester, the Civil Procedure Code has stipulated security measures. According to Clause 1, Article 120 of the Civil Procedure Code, the person requesting the Court to apply one of the temporary emergency measures such as attachment, prohibition of transfer of property rights; prohibition of changing the current status of property; freezing of property, the account of the obligated person, will have to deposit an amount of money, precious metals, precious stones or valuable papers determined by the Court equivalent to the property obligation that the obligated person must perform into a frozen account at the bank. Thus, the above provision of the law can be understood as: the amount of money, precious metals, precious stones, valuable papers must have a value equal to the property obligation of the obligated person to perform and the obligated person is the person requested to apply temporary emergency measures. With this understanding, in reality, there have been cases where the Court has required the person requesting the application of the temporary restraining order to implement security measures with the value of the disputed property, thereby causing many difficulties, leading to restrictions on the right to request the application of the temporary restraining order. However, according to Resolution 02 dated April 27, 2005 of the Supreme People's Court, there is a different guidance from the content of the provisions of Article 120 of the Civil Procedure Code, specifically: at Point a, Sub-Section 8.1, Section 8 of the Resolution, it is guided: "The property obligation is the obligation to compensate for actual damage that may occur to the person subject to the temporary restraining order or to a third party due to the incorrect application of the temporary restraining order ", and " the person with the obligation to perform is the person requesting the incorrect application of the temporary restraining order ". Although the guidance contents of Resolution 02 of the Supreme People's Court are consistent with practical application and consistent with the nature of protection measures, this interpretation is not consistent with the spirit of Article 120 of the Civil Procedure Code. On the other hand, the guidance on
Determining the actual loss or damage that may arise is also very difficult for the Court as well as the person requesting the application of the temporary indemnity. Because the application of the temporary indemnity is always carried out first, the damage that may arise due to the incorrect application of the temporary indemnity occurs later, so in all cases, the provisional calculation of the actual damage is only a guess, without a solid basis, inaccurate, so it does not bring about the expected results and also causes many difficulties for the parties in requesting the application of the temporary indemnity, and the Court is also confused in the application process.
Therefore, to improve the effectiveness of applying temporary emergency measures, the Civil Procedure Code needs to amend the provisions on compulsory implementation of measures in the following direction: " A person requesting the Court to apply one of the temporary emergency measures prescribed in Clauses 6, 7, 8, 10 and 11, Article 102 of this Code must deposit a sum of money, precious metals, precious stones or valuable papers determined by the Court to protect the interests of the person subject to temporary emergency measures and prevent abuse of the right to request the application of temporary emergency measures by the person with the right to request".
The amendment of the provisions on the implementation of the above security measures means increasing the authority of the Judge in determining the value of the security assets that the person with the right to request the application of BPKCTT must implement. With this provision, the effectiveness of the application of BPKCTT will be increased, promptly protecting the rights of the parties. Because, more than anyone else, the Judge is the one who has the best grasp of the details in the case file, is the one who directly evaluates the documents and evidence, so for each specific case, they will have to know how to calculate the value of the assets used to implement the security measures appropriately, both to resolve the case correctly and accurately and to ensure the rights of the parties.
- The Civil Procedure Code needs to supplement regulations on the time of requesting the application of BPKCTT :
Article 99 of the Civil Procedure Code stipulates that the parties have the right to request the Court to apply temporary detention during the process of resolving the case (ie after the case has been accepted).
or earlier at the same time as the filing of the lawsuit, the latest case is at the first instance trial. Thus, it can be said that the request of the litigant to the Court to apply the temporary restraining order is associated with the filing of the lawsuit. With this provision, if the litigant requests to apply the temporary restraining order earlier (before filing the lawsuit), the Court will not accept it. This limits the right to request the application of the temporary restraining order, and does not protect the litigant's rights in a timely manner. Because when filing a lawsuit, the litigant must file a lawsuit and at the same time provide the Court with documents and evidence to prove that his/her request is well-founded and legal. Those documents must be originals or certified copies. Preparing those documents and evidence is not easy to do immediately and may depend on other agencies and organizations (for example, certifying documents at the Committee depends on the Committee's officials), which will take the litigants a lot of time. On the other hand, the current regulations on the time limit for accepting civil cases are not timely. Most of the lawsuits of the litigants, if they meet the conditions for the Court to accept them quickly, must be from 5 to 10 days at the latest, or even longer in some cases (sometimes several months), during which time the defendant has promptly dispersed and destroyed all of his/her assets.
Therefore, the application of BPKCTT becomes meaningless and ineffective. Meanwhile, in many cases, the parties only want to request the Court to immediately apply a BPKCTT to preserve their assets and protect their rights and interests without wanting to file a lawsuit or later they resolve the dispute themselves so they do not file a lawsuit. However, with current legal regulations, the above request of the parties is not accepted. Referring to this issue, according to the laws of some countries in the world such as the US, France, Russia, China... all have regulations that parties have the right to request the application of BPKCTT before filing a lawsuit. Therefore, in order for the application of BPKCTT to be effective and in accordance with the purpose, our country's Civil Procedure Code should adopt the progressive legal regulations of some advanced countries in the world, amend the regulations on the time of request.
ADBPKCTT in the direction of allowing litigants the right to request the Court to apply BPKCTT before filing a lawsuit.
- Amend regulations on time limit for decision on application of BPKCTT
As analyzed in Chapter 2 of the thesis, the time limit for considering, resolving the application and making a decision to apply temporary injunctive relief as prescribed in Article 117 of the Civil Procedure Code depends on the time when the litigant submits the application for temporary injunctive relief (during the process of resolving the case, at the time of filing the lawsuit or at the trial). The time limit for considering, resolving the application and making a decision to apply temporary injunctive relief for each case is 03 days, 48 hours or the Panel of Judges decides after the litigant has presented evidence of the completion of the security measures, which is too late, does not demonstrate the urgency and immediacy of the need to immediately apply temporary injunctive relief to preserve assets and ensure enforcement of the judgment. In the current period, science and technology have made great strides, so with just a few simple operations in a very short period of time (a few minutes or even a few seconds), the person with the obligation to perform can withdraw all the money from the account or disperse and destroy the property.
Regarding this issue, according to the laws of some countries in the world, their regulations on the time limit for making decisions on applying BPKCTT demonstrate more urgency, speed, and timeliness than the laws of our country. Typically, the PLTTDS of the Russian Federation states: "A request for applying BPKCTT is resolved promptly on the day of receipt of the application, the Court immediately issues a decision on applying BPKCTT on that day without prior notice to the defendant and other participants in the proceedings" (Article 141 of the Civil Procedure Code of the Russian Federation). Or the French Civil Procedure Code, in Article 484, stipulates: “The judge handling the case has the right to decide to apply the immediate BPKCTT; in cases where it is necessary to quickly resolve the request of the litigant, the judge has the right to summon the litigant on holidays or days off. These are progressive provisions that have proven effective in practice. Therefore, the Vietnamese Civil Procedure Code also needs to boldly absorb progressive legal provisions for application.
into the development of national law. Therefore, the Civil Procedure Code needs to amend the provisions on the time limit for making decisions on applying temporary emergency measures in the direction of empowering the Judge handling the case to make decisions on applying temporary emergency measures immediately after receiving the request to promptly protect the rights of the litigant.
- The Civil Procedure Code needs to supplement regulations on procedures for applying temporary detention in cases where the Court applies temporary detention itself :
Vietnam's Civil Procedure Code stipulates two cases of applying temporary emergency measures (cases where the Court applies temporary emergency measures on its own and applies temporary emergency measures at the request of the litigant). However, Article 117 of the Civil Procedure Code only stipulates the procedure for applying temporary emergency measures in cases where the litigant requests, but does not stipulate the procedure for applying temporary emergency measures in cases where the Court applies temporary emergency measures on its own. Therefore, in cases where the Court decides to apply temporary emergency measures on its own, there are no procedural provisions as a basis for implementation, leading to cases where different Courts decide to apply temporary emergency measures in a different way, which does not ensure scientific consistency. Therefore, in order to improve the effectiveness of applying temporary emergency measures in resolving civil cases, the Civil Procedure Code needs to supplement the provisions on the procedure for applying temporary emergency measures in cases where the Court decides to apply temporary emergency measures on its own.
- Regarding the application of BPKCTT at the first instance trial :
Clause 2, Article 117 of the Civil Procedure Code stipulates that the litigant has the right to request the application of temporary injunctive relief at the trial: “In case the Panel of Judges receives a request to apply temporary injunctive relief at the trial, the Panel of Judges shall consider and decide to apply temporary injunctive relief immediately or after the petitioner has taken the security measures prescribed in Article 120 of this Code”. With the provision that at the first instance trial, the litigant has the right to request the Court to apply temporary injunctive relief, it seems to have expanded the opportunity for the plaintiff to protect his/her rights. However, apart from the above provision, Article 117 of the Civil Procedure Code does not provide anything further. According to the guidance at Point a, Section 9.2, Part 9 of Resolution No. 02/2005/NQ – HDĐTPTANDTC for this case: “ For the case prescribed in