Comparison of Number of Cases and Values ​​to be Executed Between Two District-Level Judgment Enforcement Units in 2014 and 2015

- "Nam Dinh Province: 207,323,835,000 VND" [39]

- "Hanoi City: 11,677,340,567,000 VND" [37]

- The amount of money to be executed is 56.3 times.

Comparing the workload in the 2015 working year of the Department of Natural Resources and Environment of My Loc district - Nam Dinh province and the Department of Natural Resources and Environment of Thanh Xuan district, Hanoi city as follows:

Total work to be done:

- "My Loc District Civil Judgment Enforcement Office: 189 cases" [20]

- "Thanh Xuan District Civil Judgment Enforcement Office: 1,341 cases" [36]

- The ratio of the work to be performed by Thanh Xuan unit/My Loc unit: 7.09 times. Total amount to be performed:

- "My Loc District Civil Judgment Enforcement Office: 3,796,379,000 VND" [20]

- "Thanh Xuan District Civil Judgment Enforcement Office: 1,525,966,491,000 VND" [36]

- Thanh Xuan/My Loc's enforcement ratio: 401 times.

For district-level units of Hanoi city, due to geographical characteristics and uneven economic and social development, there is a huge difference in the number of tasks and values ​​to be performed between units.

Table 2 : Comparison of the number of cases and value to be executed between the two district-level enforcement units in 2014 and 2015.

STT

Branch

THADS

2014

2015

Job

Value (1000 VND)

Job

Value (1000 VND)

1

Thanh Xuan District

(A)

1,424

414,846,511

1,341

1,525,966,491

2

Thanh Oai District (B)

457

58,516,705

613

67,874,467


A/B Comparison

3.1 times

7.09 times

2.18 times

22.48 times

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Comparison of Number of Cases and Values ​​to be Executed Between Two District-Level Judgment Enforcement Units in 2014 and 2015

Source : [37], [38].

Through the table above, we can clearly see the huge difference between these two units, the number of jobs is 2-3 times larger and the value is 7-22 times larger.

2.2. Practical application of measures to enforce payment obligations in Hanoi city in 2015 - 2016

To evaluate the effectiveness of the application of regulations on compulsory enforcement of payment obligations under the Law on Civil Judgment Enforcement in Hanoi, the author conducted statistics on the number of compulsory enforcement cases applied at the Hanoi Civil Judgment Enforcement Department and some district-level civil judgment enforcement units.

2.2.1. Results of applying compulsory measures to enforce payment obligations at the Civil Judgment Enforcement Department of Hanoi City

Table 3: Statistics of survey results on the actual application of payment enforcement measures by the Hanoi City Department of Civil Judgment Enforcement in 2015-2016


Year


Number of cases of enforcement

Total

Number of CC jobs not in use

dynamic force

Number of CC jobs mobilized

force

2015

250

236

486

2106

546

364

910

Source : [38], [39].

2.2.2. Results of applying compulsory measures to enforce payment obligations at some district and county level units

Table 4. Statistics of the results of the actual survey on the application of measures to enforce payment obligations of some Hanoi City THADS Sub-Departments in 2016

(unit: work)



STT


Number of cases of enforcement

Total


THA Department

Number of CC jobs

no mobilization

Number of CC jobs

mobilized

1

THA Department of Hai Ba Trung District

12

1

13

2

Cau Giay District THA Department

49

1

50

3

Ba Dinh District THA Department

24

0

24

4

Tay Ho District THA Branch

11

4

15

Source : [12], [13], [14], [15], [16], [17], [18], [19].

Through the summary table of survey results on the application of compulsory measures to enforce payment obligations at some district-level THADS units in Hanoi, there are 03 compulsory measures that were not applied during the year:

Compulsory exploitation of assets to enforce judgments (Article 107).

Seizure, use and exploitation of intellectual property rights (Article 84).

Collect money from the business activities of the judgment debtor (Article 79).

The reason why the three enforcement measures mentioned above are not applied is not because the need to apply them does not arise in practice, but because the provisions of the law are lacking, leading to avoidance of applying these measures by the enforcement officers.

The number of cases requiring enforcement measures compared to the total number of cases requiring enforcement is not large. For example, in 2016, the Hanoi City Department of Civil Judgment Enforcement had to enforce 39,614 cases, but the total number of cases requiring enforcement was: 910 cases.

However, the role of enforcement should not be underestimated because the number of cases applying enforcement measures is small. At the Thanh Xuan District Civil Judgment Enforcement Unit in 2016, the total amount and value subject to enforcement was 459.2 billion, of which 01 case of compulsory seizure of assets to collect enforcement money was enforced.

21.5 billion. On the other hand, the fact that enforcement is rarely required proves that the application of voluntary enforcement measures by bailiffs in Thanh Xuan is very effective. In 2016, the Thanh Xuan District Enforcement Office only had to apply enforcement measures in 2 cases, but 906 cases were completed.

The application of compulsory measures to enforce payment obligations is common in developed socio-economic areas. For example, in 2016, the Department of Enforcement of Civil Judgments in Hoai Duc district had to enforce 135 cases, of which the Department of Enforcement of Civil Judgments in Thanh Tri district had to enforce 8 cases.

Through the survey, the application of compulsory measures to enforce payment obligations in Hanoi city only occurs mainly in civil, economic, and marriage and family cases, while in civil cases in criminal cases, it is usually only to handle the assets of the person who must pay the debt that have been seized by the investigation agency or the Court. Reason

The reason for the above phenomenon is that most people who are serving prison sentences do not have assets to apply coercive measures.

In summary, in Hanoi, the number of cases requiring compulsory payment enforcement measures is not common and accounts for a small proportion compared to the total number of cases eligible for enforcement. Only a few compulsory payment enforcement measures are regularly applied, such as deduction of money from accounts and seizure and auction of assets. Other compulsory measures are rarely applied, and there are some measures that are not applied, such as compulsory exploitation of assets for enforcement.

2.3. Measures to enforce payment obligations are commonly applied in Hanoi city.

2.3.1. Measures to deduct money from the judgment debtor's account

2.3.1.1. Overview of measures to enforce deduction of money from the judgment debtor's account

This enforcement measure was first prescribed in the 2004 THADS Ordinance. Previously, this measure was prescribed in the 1989 THADS Ordinance and the 1993 THADS Ordinance with the enforcement measure of Deducting money from the account and the person responsible for implementing the decision to deduct money of the CHV in this regulation when applying this measure is the bank or credit institution where the person subject to THA opens an account.

This measure is stipulated in Article 76 of the Law on Enforcement of Judgments as follows: "The enforcement officer shall issue a decision to deduct money from the account of the person subject to enforcement. The amount deducted must not exceed the obligation to enforce the judgment and the enforcement costs" [56].

To ensure the implementation of enforcement measures, the Law on THADS clearly stipulates the responsibilities of the State Treasury, banks and other credit institutions to coordinate with the enforcement officer in Article 176 as follows:

1. Provide correct, complete and timely information and data on the judgment debtor's account as requested by the Enforcement Officer and civil judgment enforcement agency.

2. Strictly and promptly implement the request of the Enforcement Officer regarding account freezing, asset freezing; deduction of money in the account; release of account freezing, asset freezing of the judgment debtor.

3. Fully comply with other requests of the Enforcement Officer and civil enforcement agencies as prescribed by this Law [56].

However, in practice, the Enforcement Officer must also use the provisions of Decree 70/2000/ND-CP dated November 21, 2000 of the Government on keeping secret, storing and providing information related to customers' deposits and assets to be able to apply this enforcement measure .

The priority of applying this measure comes from the fact that the procedure for applying this measure is quite simple, takes little time and often brings results immediately after issuing the Decision to deduct money from the account of the person subject to THA.

2.3.1.2. Practical application

As mentioned in Chapter 1, Hanoi is the second largest economic center in the country, so the development of the banking system and other credit institutions as well as the use of payment via accounts is very popular. On the other hand, as an important trading hub, businesses in Hanoi are quite common tax payers. For this reason, the measure of deducting money from the account is quite popular. In fact, if the tax payer is a business or organization, this is the first priority measure to be applied. Through a survey in 2015, the Hanoi Tax Department applied this measure 386 times and the amount collected was nearly 50 billion VND.

The difficulty in applying this measure in Hanoi is that there are too many banks in the area. Hanoi is the location of the headquarters and branches of all commercial banks in Vietnam and a large number of branches of foreign banks. Therefore, with a dense network of branches and transaction offices, the verification of accounts and available balances in the accounts of debtors by the Enforcement Officers has encountered many difficulties. In 2015, the Hanoi Department of Enforcement issued 386 Decisions to deduct money from accounts but still did not fully reflect the characteristics of this enforcement measure. Because in order to successfully apply this measure once, the Enforcement Officer must verify the available balances in the accounts of debtors at many banks.

Particularly, when working with foreign bank branches, due to limitations in understanding the laws of the host country, the provision of verification is often very slow because the leaders of these banks delay to wait for the opinion of the bank's legal department before providing the account balance of the person subject to THA. The THA agency itself is quite confused when having to work with foreign banks.

Currently, with the development of the stock market, it is quite common for individuals and organizations to open accounts to buy and sell stocks at securities companies. Hanoi is a locality with many securities companies, so the application of this enforcement measure according to the provisions of Article 76 to the accounts of the debtor is something that will happen. However, according to the provisions of Article 176, the responsibility to implement the request of the Enforcement Officer is only: State Treasury, banks and other credit institutions. According to the Law on Credit Institutions 2010, a securities company is not a type of credit institution. This will make it difficult to apply the law in practice.

We can learn about the application of this coercive measure through the following real case at the Department of Enforcement of Civil Judgments in Hanoi:

To enforce the judgment No. 125/2014/KDTM-ST dated September 28, 2014 of the Hanoi City Court, the Director of the Hanoi City Civil Judgment Enforcement Department issued Decision No. 397/QD.THA-CD dated March 2, 2015 and Decision No. 398/QD.THA-TD dated March 2, 2015. To enforce the following amounts: Construction Joint Stock Corporation must pay commercial business court fees - first instance: VND 128,469,000; Construction Joint Stock Corporation must pay the Vietnam Joint Stock Commercial Bank for Industry and Trade the amount of VND 20,469,120,765.

Through verification at the Transaction Office of the Joint Stock Commercial Bank for Foreign Trade of Vietnam, the Enforcement Officer was informed by the Bank that the Construction Joint Stock Corporation had opened an account with an available balance of VND 352,416,894 on April 19, 2015. The Enforcement Officer issued Decision No. 21/QD-THA dated April 19, 2015 to freeze the amount of VND 352,416,894 in the account of the Construction Joint Stock Corporation from 11:00 a.m. on April 19, 2015. And immediately delivered this decision to

Joint Stock Commercial Bank for Foreign Trade of Vietnam. Then, the Enforcement Officer issued Notice of THA No. 72/TB-THA dated April 19, 2015 informing the Construction Joint Stock Corporation to complete the execution of the above judgment within 5 days. If it does not voluntarily execute the judgment, the Enforcement Officer will apply the measure of deducting money from the account to execute the judgment. After the deadline according to the notice, the Enforcement Officer based on Article 76 of the Law on THADS issued a decision to deduct money from account No. 26/QD-THA dated April 26, 2015 with the content of requesting to transfer the amount of VND 351,000,000 from the account of the Construction Joint Stock Corporation at the Joint Stock Commercial Bank for Foreign Trade of Vietnam to the account of the Hanoi City Department of THADS. The Enforcement Officer based on Article 47 of the Law on THADS collected court fees and paid the remaining amount to the Vietnam Joint Stock Commercial Bank for Industry and Trade according to the THA decision.

Through this example, we see that within 7 days, the Enforcement Officer has applied a measure to secure the execution of judgment and a measure to enforce the deduction of money from the account of the person subject to judgment. As a result, the court fees and a part of the money to pay the person subject to judgment have been completed. However, the Law on Enforcement of Judgments does not stipulate in which cases enforcement measures must be applied, but account freezing measures cannot be applied. Therefore, in practice, to avoid complaints due to the application of enforcement measures, the Enforcement Officer is always cautious by applying a security measure first. This has invisibly slowed down the judgment enforcement process.

2.3.2. Measures to seize and auction assets

2.3.2.1. Overview of measures to seize and auction assets

a) Asset seizure

Asset seizure is a fairly common term in legal documents as well as in the practice of law enforcement, but few people know the definition of the term asset seizure. In the dictionary of common legal terms published by Ho Chi Minh City Publishing House in 1999, asset seizure is defined as recording each asset, prohibiting its dispersal or destruction, to ensure trial and enforcement.

In THADS activities, the term property seizure can be understood as a coercive measure carried out by the enforcement officer to calculate and record assets in a certain order for the purpose of performing obligations according to the THA decision.

Seizing assets of the THA is also understood as restricting the right to dispose of the assets of the person subject to THA to ensure THA.

In fact, the measure of property seizure is the most effective enforcement measure and brings the highest enforcement value among all measures of enforcement of payment obligations . Therefore, the Law on THADS 2008 (amended and supplemented in 2014) has inherited the provisions of the THADS Ordinance 2004 and Decree 173/2004/ND-CP dated September 30, 2004 of the Government regulating the procedures for enforcement and sanctioning administrative violations in THADS and Decree 164/2004/ND-CP dated September 14, 2004 of the Government on seizure and auction of land use rights to ensure THA. At the same time, many regulations have been added to resolve difficulties in the process of applying the 2004 THADS Ordinance. Due to the diversity of types of assets as well as the complexity of situations when organizing seizure, the THADS Law has specific regulations for each group of assets, such as seizure of land use rights as prescribed in Article 111 or seizure of locked and packaged objects as prescribed in Article 93.

The basic principles when seizing assets are:

All assets legally owned by the person subject to enforcement may be seized for enforcement (except assets that cannot be seized according to the provisions of law), including jointly owned assets, privately owned assets, and assets managed and used by a third party.

According to this principle, the scope of assets of the person subject to the judgment enforcement that can be seized is very broad, including all forms of assets from tangible to intangible assets and in many forms of ownership. Assets that cannot be seized according to the provisions of Article 87 of the Law on Civil Judgment Enforcement can be divided into three main groups as follows:

Group 1: Assets prohibited from circulation according to the provisions of law; assets serving national defense, security, public interests; assets allocated by the state budget to agencies and organizations.

Group 2 : Assets that cannot be seized when the person subject to the THA is an individual:

a) Amount of food to meet the essential needs of the person who must pay compensation and his/her family during the period when there is no new income or harvest;

b) The number of medicines needed to prevent and treat diseases of the person having to take THA and his family;

c) Necessary items for the disabled, items used to care for the sick;

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