Background of Building a Complete Solution and Enhancing the Legal Status of Trustees in Vietnam Today

change, supervise the activities, performance of duties, and powers of QTV, asset management and liquidation enterprises. Meanwhile, the granting and revocation of QTV practice certificates, inspection, examination, settlement of complaints, denunciations, and handling of violations in asset management and liquidation practice activities are assigned to the Ministry of Justice. This causes inconsistency and difficulty in the practice of management and supervision of QTV activities as well as in proposing and implementing mechanisms and measures to support practice activities for this subject.

The reasons for this limitation include:

- The coordination of relevant agencies such as the Court, the Civil Judgment Enforcement Agency, the Administrative Judicial Agency, etc. in developing and promulgating detailed instructions for implementing the legal status of QTV is still not good. The characteristic of Vietnam's legal model is the shape of an "upside down hat" - higher legal documents must be supported by lower legal documents. It is a model where Laws must wait for Decrees, Decrees must wait for Circulars, and even Circulars must wait for official dispatches and directives, etc. Therefore, documents guiding the implementation of the legal status of QTV play a very important role in resolving the difficulties in the provisions of current law on this institution. However, up to now, the governing body, the Ministry of Justice, and relevant agencies have not taken any action in issuing or jointly issuing guiding documents that serve as "support" for the 2014 Bankruptcy Law and Decree 22/2015/ND-CP.

- The capacity of some people conducting bankruptcy procedures (judges, prosecutors, bankruptcy administrators, enforcement officers, etc.) is still limited, not meeting the requirements of resolving enterprise bankruptcy ; lacking a deep understanding of the content of the Bankruptcy Law and other specialized fields such as finance, banking, economic management, unified accounting and other fields of law. In some cases, judges do not yet fully understand the bankruptcy institution, the position and role of bankruptcy administrators, asset management and liquidation enterprises, therefore, the appointment of bankruptcy administrators, asset management and liquidation enterprises to perform their duties according to regulations is still slow, affecting the overall process of resolving bankruptcy cases.

- The lack of a synchronous information system on QTV for state management entities to update and exploit together has led to difficulties in state management of QTV. In particular, with the regulation allowing QTV to operate outside the provincial level where the QTV is registered but there is no mechanism for sharing information between localities or management organizations, making it impossible for the QTV registration agency to

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grasp the cases that QTV participates in outside the scope of its management territory. This also makes it difficult to evaluate QTV's activities.

Seventh, the supervision of the activities of the QTV is not effective . Currently, the Bankruptcy Law 2014 and Decree No. 22/2015/ND-CP stipulate that the court is the agency directly appointing, changing, supervising the activities, performance of duties, and powers of the QTV, asset management and liquidation enterprises. Meanwhile, the granting and revocation of QTV practice certificates, inspection, examination, settlement of complaints, denunciations, and handling of violations in the practice of asset management and liquidation are assigned to the Ministry of Justice. This causes inconsistency and difficulty in the practice of management and supervision of QTV activities as well as in proposing and implementing mechanisms and measures to support the practice of this subject. In addition, the supervision of QTV by the enforcement officer also faces many difficulties and procedural problems. At the same time, the enforcement force is also lacking in numbers to monitor the activities of QTV regularly and effectively.

In addition, the responsibilities of the entities supervising QTV when allowing QTV to commit illegal acts have not been clarified and implemented in practice. For example, in the bankruptcy case of Thanh Nguyen Company, QTV illegally arrested people and forcibly recovered assets, but the entities supervising QTV's activities in this case were not imposed legal responsibilities.

CHAPTER 3 SUMMARY

The results of the study in Chapter 03 show that the legal status of the QTV in Vietnam has only appeared in the 2014 Bankruptcy Law and documents related to this law. Therefore, it can be affirmed that this is a new issue. Accordingly, the QTV is recognized as an individual with the function of managing and liquidating assets in the bankruptcy proceedings of enterprises and cooperatives, appointed by the Judge or proposed by the person filing the bankruptcy petition.

The current legal regulations on the legal status of the bankruptcy administrator are also relatively complete with the four components as analyzed, including: conditions for participating in bankruptcy proceedings; rights and obligations of the bankruptcy administrator in bankruptcy proceedings; legal responsibilities of the bankruptcy administrator and the relationship of the bankruptcy administrator with other entities. However, this legal recognition still has many incomplete issues. Specifically, there are the following seven issues: First , regulations on the order and procedures for the operation of the bankruptcy administrator have not been issued; Second , regulations on the content of information on the registered practice administrator are still incomplete; Third , although the current law has provisions on the right to appoint the bankruptcy administrator by the Court and the right to request the proposal of the bankruptcy administrator by the person filing the petition to open bankruptcy proceedings, there are no regulations guiding the resolution of conflicts between these two entities in the selection of the administrator; Fourthly , the ethical conditions of the QTV have been mentioned in the current bankruptcy law but there are no specific regulations; Fifthly , the QTV's refusal to participate in bankruptcy proceedings when appointed has not been guided in writing; Sixthly , the issue of representation in asset inventory has been regulated but there is a lack of mechanism to ensure implementation; Seventhly , the funding and remuneration for QTV still have many loopholes that have not been overcome.

The causes of the above limitations are identified as follows: Firstly , objective reality is constantly changing, many business and commercial relationships are established, and entities have unintentional or intentional actions that complicate bankruptcy procedures beyond the recognition of current law; Secondly , the capacity to develop bankruptcy laws is still limited; Thirdly , the coordination of relevant agencies such as the Court, Civil Enforcement Agency, Administrative Justice Agency, etc. in developing and promulgating detailed instructions for implementing the legal status of QTV is still not good.

Chapter 4

IMPROVING THE LAW AND IMPROVING LEGAL STATUS

OF THE TRUSTEE UNDER CURRENT VIETNAMESE BANKRUPTCY LAW

4.1. The context of building a complete solution and improving the legal status of administrators in Vietnam today

Perfecting the legal regulations on the legal status of QTV is an inevitable requirement in the issue of codification of bankruptcy in Vietnam today. This necessity comes not only from the limitations and causes analyzed in Chapter 03, but also from the requirements of the domestic and international economic and social context. These contexts both set out the requirements for codifying the legal status of QTV under bankruptcy law and directly impact the content of viewpoints and solutions.

Firstly , the context of the epidemic's impact is complicated both domestically and globally. Covid-19 is a topical issue for humanity today and in the near future. This epidemic not only directly affects human health and life but also "casts a shadow" on the global economy. According to statistics, by the end of June 2021, there were more than 194 million people infected worldwide and more than 4.15 million deaths [100]. The world economy suffered a record decline due to the pandemic with a decrease of 4.3% compared to 2018, the total damage to the world economy is estimated at 10,000 billion USD [49]. In Vietnam, in the first 6 months of 2021 alone, 70.2 thousand enterprises temporarily suspended business, stopped operations pending dissolution procedures and completed dissolution procedures, up 24.9% over the same period in 2020, including: 35.6 thousand enterprises temporarily suspended business, up 22.1% over the same period last year; 24.7 thousand enterprises suspended operations pending dissolution procedures, up 25.7%; 9,900 enterprises completed dissolution procedures, up 33.8%. On average, 11.7 thousand enterprises withdrew from the market each month [11]. This consequence causes many impacts and implications for social life, including bankruptcy procedures.

The high rate of enterprises going bankrupt has pushed bankruptcy proceedings to a high level. This also means that the legal status of QTV is more present in real life. The number of bankruptcy proceedings increases, the presence of the legal status of QTV is greater, these things make the limitations of legal regulations on the legal status of QTV more obvious and frequent in the period.

Currently. In an urgent situation, the large number of enterprises awaiting bankruptcy leads to a backlog in the settlement of procedures, combined with the limitations of legal regulations on the legal status of QTV, which potentially contain many conflicts and obstacles, will contribute to prolonging bankruptcy procedures, affecting not only the rights and legitimate interests of bankrupt enterprises and cooperatives, employees, creditors, etc., but also negatively affecting the circulation of national economic and social life. This context raises the issue of perfecting legal regulations on the legal status of QTV as an urgent and meaningful requirement in the current period and in the future.

Second, the context of international integration is increasingly deep. Vietnam is entering a state of deep integration with the world in all aspects. In which economic integration is the focus and legal integration is a mandatory condition.

Economic integration is an inevitable trend of any contemporary democratic country, and Vietnam is no exception. In recent years, Vietnam has been actively participating in the global supply chain and becoming an important link in that supply chain. World economic integration is a two-way state: In the first direction, Vietnam reaches out to the world, which is a "common playground" with common rules. These rules are built on the consensus of the members and no one is allowed to put themselves outside. Therefore, Vietnamese enterprises integrating into the world economy require preparation of ideology, thinking and psychology to comply with common global rules. In which, bankruptcy is a very important issue, intermediary institutions in international bankruptcy law appear more and more and demonstrate more clearly their role in resolving commercial disputes in general and in bankruptcy in particular. Therefore, increasing the presence of the legal status of QTV in bankruptcy proceedings in Vietnam is an inevitable requirement to equip enterprises with the mindset and mentality about this institution in international law.

The opposite direction of integration is reflected in the fact that Vietnam itself becomes an international investment environment. At that time, Vietnam, as a "host", will also establish "rules of the game" to serve this integration direction. However, these rules cannot be private or individual, but must be consistent with international practices and approved by the international community. Therefore, Vietnam's legal system also requires an early update of the world's common institutions. QTV was born in 2014 as such an update, however, after more than 06 years, the legal thinking on international bankruptcy has also undergone certain changes, so

requires Vietnam to make appropriate adjustments to improve the legal status of QTV to keep up with changes in the world.

Third, the context of the 2014 Bankruptcy Law and its implementing documents have revealed many shortcomings. The Bankruptcy Law No. 51/2014/QH13 dated June 19, 2014 is a judicial institution in the market economy. This law stipulates the order and procedures for filing, accepting and opening bankruptcy proceedings; determining property obligations and measures to preserve property during the bankruptcy settlement process; procedures for business recovery; declaring bankruptcy and enforcing decisions declaring bankruptcy applicable to bankrupt enterprises, cooperatives, and cooperative unions... However, through the practical implementation of this law, there are many shortcomings and limitations that have not been anticipated to resolve the existing and arising problems in the actual bankruptcy of enterprises. Notable limitations include: (1) the regulations on criteria for determining "Insolvent Enterprises and Cooperatives" do not take into account cases where enterprises and cooperatives are temporarily insolvent due to the amount of assets appropriated being much higher than the amount of assets that must be paid but the appropriated assets have not been recovered for payment, causing many creditors to take advantage of the ability to request bankruptcy of enterprises and cooperatives that are in a state of temporary insolvency; (2) the regulations on the time limit for issuing decisions on enforcement of judgments and revaluation of assets in the 2014 Bankruptcy Law are not consistent with the 2008 Law on Civil Enforcement (amended and supplemented in 2014).

Specifically, the 2014 Bankruptcy Law stipulates that within 05 working days from the date of issuance of the decision declaring bankruptcy, the civil judgment enforcement agency is responsible for proactively issuing an enforcement decision and assigning an Enforcement Officer to execute the decision declaring bankruptcy. Meanwhile, the 2008 Law on Civil Judgment Enforcement (amended and supplemented in 2014) stipulates that within 03 working days from the date of receipt of the decision of the Court resolving bankruptcy, the Head of the competent civil judgment enforcement agency shall proactively issue an enforcement decision and assign an Enforcement Officer to organize the enforcement. This has caused difficulties for the civil judgment enforcement agency in issuing enforcement decisions, and at the same time has caused complaints related to compliance with regulations on the time limit for issuing enforcement decisions; (3) regulations on advance payment of bankruptcy costs and opening of accounts to pay advance payment of bankruptcy costs still lack enforcement basis. Specifically, the Bankruptcy Law 2014 does not specifically regulate how to calculate the advance payment of bankruptcy costs. Decree No. 22/2015/ND-CP dated February 16, 2015 of the Government guiding the provisions on asset management and liquidation practice only

including provisions guiding the calculation of remuneration for the QTV without any provisions guiding the calculation of advance payment for bankruptcy costs. In addition, the 2014 Bankruptcy Law and Decree No. 22/2015/ND-CP also do not provide specific regulations on the procedures for opening and managing accounts opened by the Court at the Bank to collect advance payment for bankruptcy costs. This causes confusion for the Court in organizing implementation in practice, leading to many different interpretations such as accounts opened at the bank are used for one or many bankruptcy cases... These limitations have caused in reality, although the epidemic and great competition have caused a large number of enterprises and cooperatives to leave the market. However, the rate of seeking bankruptcy proceedings to terminate their operations is very low. This has caused the legal spirit of the 2014 Bankruptcy Law and related documents to not be achieved. That reality has raised the need to amend the 2014 Bankruptcy Law in order to overcome the limitations and shortcomings of this law.

QTV is recognized as a breakthrough institution of the 2014 Bankruptcy Law. However, the legal recognition of this institution itself also has many limitations in the provisions of law on the legal status of QTV as analyzed in Chapter 3. Therefore, in the context of the urgent need to amend and perfect the 2014 Bankruptcy Law, perfecting the law on the legal status of QTV is also being raised and becoming one of the core issues of amending the 2014 Bankruptcy Law.

Fourth, the context of the country's strong economic development period. Vietnam's development over the past 30 years has been remarkable. Economic and political reforms since 1986 have promoted economic development, rapidly transforming Vietnam from one of the poorest countries in the world to a lower middle-income country. From 2002 to 2018, GDP per capita increased 2.7 times, reaching over 2,700 USD in 2019, with more than 45 million people escaping poverty. The poverty rate has dropped sharply from over 70% to below 6% (3.2 USD/day at purchasing power parity) [49]. In the next 10 years, Vietnam expects to achieve a GDP growth rate of about 7%/year. By 2025, Vietnam will be a developing country with modern industry, surpassing the lower middle-income level. In which, GDP/person at real prices in this period reached 4,700 - 5,000 USD, in 2020, GDP/person reached 3,521 USD. By 2030, it will be a developing country with modern industry and high average income. GDP/person at real prices will reach about 7,500 USD. Aiming to become a developed country by 2045.

developed, high-income countries [112]. This development roadmap is positive and shows that in the near future, throughout that roadmap, there will be many changes in economic and social life, including the establishment of a new free market mechanism, the number and scale of enterprises and cooperatives will increase continuously and rapidly; competition will become increasingly fierce... leading to higher demands for changes and improvements in legal frameworks on business, trade, market, enterprises... will appear. In particular, legal issues related to bankruptcy of enterprises, cooperatives and possibly including the issue of bankruptcy of individuals will be raised and required to be improved. The legal status of QTV is an important component of modern bankruptcy law, this context affects the issue of improving the legal status of this institution, which is also an inevitable story of the future.

4.2. Requirements for perfecting and improving the legal status of administrators under current bankruptcy law in Vietnam

Building and proposing solutions to perfect legal regulations on the legal status of QTV in Vietnam today is a complex task and requires its own principles. The principles are reasonable limits of the solution to help increase the applicability of the solution in practice instead of just being presented on paper. Within the scope of the thesis, the PhD student identifies these principles in the form of viewpoints to build solutions to perfect legal regulations on the legal status of QTV in Vietnam today with the following 04 basic viewpoints:

4.2.1. Perfecting and improving the legal status of the administrator under Vietnamese bankruptcy law must be consistent with the practical situation and conditions of the country.

Solutions to improve legal regulations on the legal status of QTV in Vietnam today aim to provide breakthrough solutions to improve the legal status of QTV in a modern, scientific direction, meeting the needs and standards required by society. However, that does not mean that these solutions will create viewpoints that go beyond the limits of thinking and legal conditions in Vietnam today. On the contrary, those solutions must be built on the current legal foundation, within the framework of current legal ideology with the goal of returning to reform that foundation and ideology. This viewpoint on the first principle is specifically expressed in the following aspects:

Firstly, the solution to improve and enhance the legal status of QTV must be consistent with the current legal perspective on market economy. Accordingly, legal thinking

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