It is also the basis for classifying cases and the basis for counting the number of outstanding cases. Therefore, verifying the conditions for THADS has the following meanings:
Firstly, it helps to classify cases accurately, contributing to improving the quality and efficiency of THADS work, reducing pressure on THADS agencies. In THADS, civil cases are divided into two types: civil cases with enforcement conditions and civil cases without enforcement conditions. The basis for classifying civil cases with enforcement conditions and civil cases without enforcement conditions is based on THADS conditions. Therefore, verifying THADS conditions is an important and necessary procedure to determine whether the THADS is enforceable or not. If the verification of THADS conditions is fully and properly implemented according to the provisions of law, the classification of THADS (conditions for implementation and conditions for non-enforcement) will be accurate, thereby the THADS agency will focus time, human resources, and costs on implementing THADS matters that are conditional for implementation and will not have to waste time and effort on THADS matters that are not yet conditional for implementation.
Second, it contributes to ensuring the rights of the person being judged. In civil transactions, the parties act on the principles of freedom, voluntariness, commitment, agreement and are protected by law. Article 3 of the 2015 Civil Code stipulates: “Individuals and legal entities establish, exercise and terminate their civil rights and obligations on the basis of freedom, voluntary commitment and agreement. Any commitment or agreement that does not violate the prohibitions of the law or is not contrary to social ethics is effective for the parties and must be respected by other subjects” [77, Clause 2, Article 3]. The law protects civil transactions by means of a judicial mechanism: When one of the parties does not respect or fulfill the commitments or agreements, disputes arise and the parties have the right to request the Court to resolve them. Because civil transactions are established on the principle of voluntariness, the parties agree and enter into transactions with each other, in order to request the Court to resolve the dispute, the parties are obliged to provide evidence and prove their request (different from criminal cases). Whether the person being granted a judgment is granted a judgment or not depends largely on the judgment conditions of the person who must be granted a judgment. Therefore, the regulation that the person being granted a judgment has the duty to verify the judgment conditions of the person who must be granted a judgment is also a form of ensuring the rights and interests of the person being granted a judgment.
Third, verifying the conditions for THADS also contributes to raising people's awareness of THA. Based on the results of verifying the conditions for THA, CHV will carry out the following tasks such as applying measures to ensure THA, applying
measures of enforcement of judgments and decisions of the Court… If the person subject to enforcement does not voluntarily enforce the judgment or decision of the Court, after the person subject to enforcement or the Court verifies the conditions of enforcement, they may be subject to measures to secure enforcement of judgments and measures of enforcement of judgments and decisions, and they will certainly have to bear unnecessary costs. Therefore, the regulation on verification of conditions of enforcement of judgments and decisions of the Court contributes to raising the awareness of the people in general and the awareness of the person subject to enforcement of judgments and decisions of the Court.
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Fourth, verifying the conditions for civil judgment enforcement contributes to ensuring the validity of court judgments and decisions. Civil judgment enforcement is the final stage to ensure that court judgments and decisions are enforced, contributing to ensuring the strictness of the law, strengthening the socialist legal system, ensuring the legitimate rights and interests of organizations, individuals and the State. With such importance, civil judgment enforcement has the purpose and task of making court decisions in judgments and decisions become reality in practice. However, this depends largely on the actual ability of the person subject to civil judgment enforcement to have assets and income for civil judgment enforcement or not? In other words, does the person subject to civil judgment enforcement have the conditions for civil judgment enforcement or not? Therefore, before organizing civil judgment enforcement, it is necessary to clarify whether the person subject to civil judgment enforcement has the conditions for civil judgment enforcement or not, that is, to verify the civil judgment enforcement conditions of the person subject to civil judgment enforcement. Therefore, the provisions of the THADS law on verification of THA conditions are to ensure the effective organization of enforcement of court judgments and decisions and to ensure the strictness of the law.
In short, verifying THADS conditions is of special importance, directly affecting the results of THA settlement, therefore, developing legal regulations to ensure effective and efficient verification activities is a necessary task to improve the quality of THADS activities.
2.3. Contents of legal adjustments on verification of conditions for civil judgment enforcement
2.3.1. Subjects verifying conditions for civil judgment enforcement
The verification subject is the person assigned by law with the task and authority to search for and collect assets, income, and other conditions of THA of the person subject to THA. There is no uniformity in legal regulations among countries in the world regarding the subject of verifying THADS conditions. Depending on the THADS organization model, the law of that country assigns the subject with the right to verify THADS conditions. Currently in the world, the subjects with the right to verify are judges,
CHV, TPL and the person being THA. Each subject has different powers and limitations in verifying THADS conditions.
2.3.1.1. The judge executing the judgment or the court's enforcement officer
This is a type of subject belonging to the court-oriented THA organization system (Court-oriented Systems). That is, the THADS organization is a part of the court, the responsibility for THADS belongs to the THA judge or THA staff of the court. The court-oriented system is found in Austria, Spain and also in Denmark. In Austria, the local courts at the place of residence of the THA debtor are responsible for THA procedures, which are carried out by court staff in a completely separate procedure. In Spain, the judge who has issued the judgment is responsible for the enforcement of that judgment. Accordingly, the jurisdiction of the Spanish court is not determined by the place of residence or the place of property of the THA debtor but belongs to the head of the court of general jurisdiction. Therefore, the THA system in Spain is based on judicial cooperation between different courts. In Spain, the judge is primarily responsible for the enforcement of judgments [107, pg.46- 47]. According to Spanish law, the Court may seek the assistance of the tax authorities when verifying the address and assets of the person subject to the judgment [106, pg.24]. The Court-oriented judgment enforcement system also exists in Italy [104, pg.6]. According to Italian law, the person competent to organize judgment enforcement is a civil servant, an assistant to the judge, operating under the supervision of the President of the court where the person works. When verifying assets, court officials have access to data through the tax register and other public data to discover the existence of assets of the person subject to the judgment. In addition, in the case of a person subject to the judgment who is a commercial entrepreneur, the provision states that the verification of assets may be extended by checking the business accounts [103, pg.452]. In China, the Court is responsible for searching and handling assets. The person who is subject to the THA can apply to the Court for THA even if they cannot provide any clues about the assets. China has an online investigation and control system. This system helps the Court to quickly find and control various assets including real estate, deposits, ships, vehicles, securities, etc. in a timely manner after they participate in the THA procedure [103, p.572].
Thus, the laws of countries following the court-oriented THA organizational model have given the right to verify THADS conditions to THA judges or staff.
THA belongs to the court, is a state official, and at the same time, is also equipped with the rights to be able to effectively verify THADS conditions such as seeking help from tax authorities, having the right to access data through tax registers and public data... This is consistent with the nature of verification activities that always need the support of agencies, organizations, and individuals holding information about the assets of the person subject to THA.
2.3.1.2. Executor
This is the subject of the administrative model of the THA organization. In Europe, this model is organized in Sweden, Finland and some countries in the former Soviet Union and Eastern Europe [104, pp. 6-7]. In these countries, THA is carried out by an administrative agency that operates entirely outside the courts. The Swedish THA is organized as an administrative agency (under the supervision of the Ministry of Finance) and is divided into 10 regional agencies that are themselves divided between 84 offices [107, pp. 46-47]. According to Swedish law, the THA agency can contact the tax registry to find out the address and financial situation of the person subject to THA [106, p. 23].
In Russia, the Federal Service for the Prosecution of Criminal Judgments is an official of the Federal Service for the Prosecution of Criminal Judgments of Russia, which is managed by the Ministry of Justice. Russian law grants the Federal Service for the Prosecution of Criminal Judgments of Russia great power, including access to confidential information, including the personal information system of citizens [103, pg.345]. One of the tasks assigned to the Federal Service for the Prosecution of Criminal Judgments of Russia is to track down persons subject to criminal judgments and their assets. In order to carry out the assigned tasks and powers, the Federal Service for the Prosecution of Criminal Judgments of Russia has the right to request from the Federal state power bodies, state power bodies of the subjects of the Russian Federation, local self-government bodies and organizations regardless of their legal form of organization to provide documents, materials and other necessary records to help decide on issues within its field of activity [43].
In Vietnam, the CHV is also a person appointed by the Minister of Justice, operating under the management of the Ministry of Justice. Vietnamese law assigns the CHV the task of verifying the conditions for THADS. At the same time, to carry out this task, the law allows the CHV to request relevant agencies, organizations and individuals to provide documents to verify the address and assets of the person subject to THA [70, Clause 4, Article 20]. In case the agency, organization or individual does not provide or provides false information about the conditions for THADS of the person subject to THA, they must bear responsibility.
before the law, pay for arising costs, in case of causing damage, must compensate [75, Clause 7, Article 44].
Similar to the court-oriented THA organization model, giving CHV the right to verify also ensures the principle that THA organization must belong to the public authority. At the same time, CHV also has the right to request the coordination of the tax registration agency, other relevant agencies, organizations and individuals or to log into the information system.
2.3.1.3. Bailiff
This is the subject of the private and semi-private THA organization model. In Europe, this model is developed in countries such as France, Benelux and Scotland (as well as in many Eastern European countries and in Portugal). In these countries, THA is carried out by TPLs who act as state-appointed persons, but outside the court system. TPLs are remunerated mainly from fees. In France, TPLs are also organized as state officials operating outside the courts. Judicial intervention (and assistance) can be obtained by “THA judges”. In these jurisdictions, the social (and economic) status of TPLs is very high [107, pg.46]. The trend towards privatization of all or part of THA services can be seen throughout Europe. Some examples include Estonia, Belgium and Montenegro. However, there are very few completely private THA systems. Most are semi-private and are defined primarily by the THA responsibilities belonging to independent TPLs, which operate as private enterprises, subject to some form of state control and regulation [104, p.7].
In France, the TPL office has the right to receive the necessary information, but cooperation between local and central authorities and the TPL offices is not always effective. The TPL is entitled to seek the help of the public prosecutor's office. Currently, the law in force allows the TPL to contact the tax authorities directly when searching for the address and bank accounts of the person subject to the tax [106, p.23].
In Bulgaria, the organization of THA is carried out according to a mixed model, meaning that there is a parallel existence of private THA and state THA. Therefore, the law of this country also assigns the task of verification to two entities: CHV (belonging to the state THA system) and TPL (belonging to the private THA system). However, in the provisions of the law, the THA authority of TPL is broader than that of CHV, therefore, pursuing the person subject to THA and their assets will be more effective [103, p.419].
According to the results of a comparison of the public and private THA systems based on the results of a questionnaire set by the International Union of Judicial Professionals (UIHJ), from a market perspective a private THA employee must earn enough profit to have a comfortable life. The need to generate profit and competition can lead to a system where debtors are no longer considered human beings but "lemon to be squeezed and thrown away". Market law can be a cruel reality [103, pg.354].
This is one of the reasons why many countries, in the process of reforming the THADS system, are wondering whether to build a private THA system. However, if considered from the perspective of the THADS condition verification activities as well as the responsibility of the THA beneficiary in private legal relations and the overload of the state THA system, the socialization of some stages that have little impact on basic human rights such as the THADS condition verification can be considered and weighed.
2.3.1.4. Person subject to execution of judgment
This type of verification subject appears in countries with common law traditions such as the US, UK, and Canada.
The laws of these countries give the right to verify the conditions of the THA to the THA beneficiary with effective support from the court and strict sanctions for the act of not providing information about the assets of the THA beneficiary.
In the United States, because the approach of US law is to consider the activity of verifying the conditions of THADS similar to the activity of collecting evidence in civil proceedings, the person who is entitled to THA is entitled to use the measures of collecting evidence according to the provisions of the law of civil procedure to verify the assets of the person who is subject to THA, and also enjoy the guarantees and support of the court as for the activity of collecting evidence to resolve the civil case. According to Clause 2 of Rule No. 69 of the Federal Rules of Civil Procedure issued by the Supreme Court of the United States, to support the THA, the person who is entitled to THA or his/her successor may conduct measures to collect evidence (discovery) from any person, including the person who is subject to THA, according to the provisions on collecting evidence prescribed in the Federal Rules of Civil Procedure or according to the procedural procedures of the state where the court issued the judgment. Measures to collect evidence may include: requesting the provision of evidence, documents; interrogation; forcing the provision of information; taking statements from the person subject to the judgment and third parties to verify the assets of the person subject to the judgment [112, Rule 69(2)]. If the person subject to the judgment does not cooperate or is not present at the appearance for examination, the person
The THA may request the judge to issue a warrant and pay the fee for applying for such a warrant [95, Article 708.110].
English law also provides for a procedure similar to that of US law to help the person being levied verify the assets of the person being levied. Accordingly, the person being levied has the right to apply to the court to issue an order to provide information. This procedure allows the person being levied to force the person being levied to appear before the court to answer questions (under oath) about his or her financial situation and assets, thereby helping the person being levied to decide whether to continue pursuing the levying process or to stop it, and if so, what measures of levying enforcement should be used [102].
In Canada, the Canadian Judicial Unification Commission's 2005 Model Judicial Unification Act (currently under consideration by Canadian states) devotes a section (Section 8) to the detailed provisions on the procedure for obtaining disclosure of judgments with the assistance of the courts. The Canadian Judicial Unification Commission emphasizes that an effective process for compelling a judgment debtor to disclose information about his or her assets is a key element in enforcing judgments and ensuring the legitimate rights of judgment debtors. Article 45 of the Model Law on Enforcement of Judgments stipulates that the person being enforced has four measures to force the person being enforced to provide information about the assets for the enforcement of judgments: First, the person being enforced sends a document with a questionnaire to directly request the person being enforced to respond and send it back to the Court, which discloses detailed information about all assets in which the person being enforced has an interest, detailed information about all debts of others to the person being enforced, any other reasonable information that the person being enforced wants to collect and can support the person being enforced in enforcing the judgment or decision. Second, the person being sent the document requests the person being enforced to appear before the Court or a person designated by the Court to answer (under oath) any questions related to the above assets. Third, the person subject to the THA files a petition requesting the court to issue an order requiring the THA obligee or another person to provide the court with information about the above assets, or to require the THA obligee to appear before the CHV or a person appointed by the court to conduct an inspection, verify the assets and answer questions related to the above assets. “Others” holding information about the THA obligee’s assets can be the THA obligee’s spouse, a bank officer, an accountant or a broker… “Others” can also be agencies holding information about the THA obligee’s assets and income and only disclosing information with the permission of the THA obligee.
The person who must pay the fine. Fourth, the person who is paid the fine submits a request to the court to issue an order requiring the person who must pay the fine to make a written authorization for the agency, organization or individual holding information about the property of the person who must pay the fine to provide that information to the person who is paid the fine or the CHV. The Model Law also clearly stipulates the legal consequences of not providing information when requested. In case the person who is paid the fine has sent a request to provide information or a request to appear for inspection but the person who must pay the fine does not comply, the person who is paid the fine may request the court to issue an order requiring the person who must pay the fine to provide complete and accurate information to the CHV. If the debtor still fails to provide information or fails to appear for examination, or if the court considers that the information provided or returned at the appearance for examination is incomplete or inaccurate, the court may permit the CHV or a person designated by the CHV to access any location of the debtor where there is reasonable ground to believe that such location holds records, documents, or information about the debtor's assets, and to inspect such records, documents, and temporarily seize and photocopy such records and documents. The court may also issue an order prohibiting the debtor or a third party from destroying, concealing, or removing records and documents containing information about the debtor's assets. The law also clearly stipulates that an order allowing the CHV to enter and search for the debtor's records and documents may only be issued if the court considers that the information about the debtor's assets cannot be obtained by other reasonable means. Failure to comply with a request for information by a person being released or a court order to provide information is considered a crime [93].
From the above analysis, it can be seen that although the laws of different countries assign different entities to perform the task of verifying the conditions for judgment execution, the common point of the above regulations is that, in parallel with the assignment of tasks, a suitable legal corridor is always built for those entities to perform the task most effectively. Thus, whether the person responsible for verification is a state official or a freelancer or even an individual or organization with rights arising from the judgment or decision (the person who is subject to judgment execution), in order to verify effectively, the law must focus on ensuring that the subjects have the right to collect information and verify the conditions for judgment execution. The two basic elements of an effective mechanism for verifying the conditions for judgment execution are ensuring the availability, connectivity, and accessibility of information and having strong enough sanctions to force the person who is subject to judgment execution and related entities to provide information.