The regulation on posting the document at the last residence of the person to be notified has caused difficulties in practical application. Returning to the case of enforcement of judgment No. 85/2009/KDTM-ST dated May 5, 2009 of the Hanoi People's Court, the Head of the Hanoi People's Court issued decision No. 1224/QDTHA.KT dated August 21, 2009, as specifically stated above. The person to be executed is Lam Hong Limited Liability Company, which is no longer operating at the headquarters in the most recent Business Registration Certificate and the new headquarters address of the Company cannot be determined. This address is a house rented by the Company. At the time the THADS agency carried out the service and posting, this address was being used by someone else. And the posting of the notice document could not be carried out because of the objection of the owner currently using the house. There is currently no guidance on how to handle situations where listing at the last place of residence is not possible.
3.1.2. Problems from the process of applying substantive law
THADS is the implementation of procedures prescribed by law to realize the rights and benefits determined in the judgment and decision to be enforced. However, in the process of organizing THA, the subject enjoying the rights and benefits as well as having to perform the obligations established in the judgment and decision to be enforced may be changed such as death or loss of capacity to act, leading to the application of substantive law to resolve the transfer of rights and obligations. However, the provisions on THADS do not stipulate the authority and responsibility of the enforcement officer in applying or requesting the competent authority to apply substantive law so that THADS activities are not interrupted. This issue can be considered through the following example:
To enforce judgment No. 40/KDTM-ST dated May 10, 2006 of the Hanoi People's Court, the Head of the Hanoi People's Court issued judgment No. 128 dated August 22, 2006 to enforce the clause: Requiring Thuan Quoc Company Limited to pay Viet A Commercial Joint Stock Bank the amount of: 876,500,000 VND.
Seize the house and land at No. 31, Alley 508, Lang Street, Hanoi, under the names of the house owner and land user, Ms. Nguyen Thi C and Mr. Nguyen Tuan N, to ensure execution of the judgment.
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After the enforcement officer completed all the procedures as prescribed and determined that Thuan Quoc Company was unable to repay the debt to the bank, on July 26, 2007, the enforcement officer proceeded to appraise the assets that had been seized by the Court, which were the real estate of Ms. C and Mr. N, and transferred them to the auction company to conduct the auction.
The auction company set the auction date for October 31, 2007 and fully implemented the notification and listing procedures according to current regulations.
On October 23, 2007, Ms. C and the Bank representative agreed to postpone the auction date to November 31, 2007 to arrange the THA money and Mr. N died on October 9, 2007. The auction company agreed with the above agreement.
Afterwards, the auction was conducted and the property was sold, but the property was not yet delivered due to complaints from Mr. N's children and mother regarding the inheritance rights of the above-mentioned seized property.
Through the above example, we see that the role of the THADS agency and the enforcement officer in applying the substantive law is not regulated. In this case, can the THADS agency temporarily suspend, postpone, or temporarily suspend the case to wait for the competent authority to determine the inheritance rights of Mr. N's heirs? In case the heir does not complete the procedures (file a lawsuit or declare inheritance) to establish ownership of the inheritance and accept the obligations of the person leaving the inheritance, does the enforcement officer have the right to file a lawsuit to request the division of the inheritance that has been seized and valued?
Assuming that Mr. N dies after the assets have been processed, does the Executor have the right to divide the remaining inheritance or must instruct the heirs to carry out the inheritance declaration procedure or initiate a lawsuit?
inheritance division lawsuit? And the case will continue to be deadlocked if the provisions of current law are strictly followed.
3.1.3. Difficulties in coordinating enforcement
In general, after the Law on THADS came into effect, relevant agencies in Hanoi have been more responsible in coordinating with THADS agencies in THADS work, especially in organizing THA enforcement activities.
The THA enforcement coordination relationship can be divided into two main areas:
- Coordinate in implementing verification and service coordination procedures to serve enforcement.
- Coordinate in sending enforcement protection forces and sending members to participate in enforcement activities.
Firstly , in the organization of enforcement such as property seizure, handing over property to the buyer, the role of the enforcement force's protection force plays a decisive role in whether the enforcement can be organized or not. In Hanoi, there are quite a few enforcement cases requiring protection forces. However, in order to have a police force to protect the enforcement, at the preparatory meeting for enforcement, the draft enforcement plan of the THADS agency must be agreed upon by the departments (in some cases, there must be agreement on the content of the judgment and decision). If there is no agreement at this meeting, the police agency rarely sends forces to protect the enforcement.
On the other hand, because Hanoi is the location where important national events often take place, the city's police force and the police forces of districts, communes and wards must concentrate their forces to carry out political tasks, so enforcement cannot be organized.
In Decision No. 1501/2008/QD-BCA(C11) dated September 10, 2008 of the Minister of Public Security promulgating the procedure for supporting the enforcement of THADS by the Judicial Protection and Support Police force under the People's Public Security, it is stipulated in Article 2:
Supporting the enforcement of civil judgments when requested by the enforcement agency is the responsibility of the People's Public Security force, in which the Judicial Protection and Support Police force is the core to protect order and safety for enforcement, prevent, stop, and promptly handle all violations of the law; contributing to protecting the interests of the State and the legitimate interests of organizations and individuals [2].
However, this Procedure does not specify a specific time limit from the time of receiving the request for support for enforcement of THADS from the THADS agency, the police agency at the same level must develop and approve a plan and scheme to support enforcement of THADS.
Currently, the Law on THADS and legal documents guiding the implementation of the Law on THADS do not stipulate that the enforcement team must postpone if there is no security force because the plan and support plan for THADS enforcement of the police agency at the same level have not been approved by the superior to deploy the force. Therefore, in reality, the THADS agency and the Enforcement Officer have a hard time coordinating with the police agency to obtain the above plan. On the other hand, because there are no specific regulations on this issue, the reason for not having a security force to temporarily suspend the enforcement organization is often given by the THADS agency. Thus, the lack of clear regulations is a loophole for the THA agency to use to delay THA enforcement.
Second, for the implementation of coordination procedures for verification and service to serve enforcement, the coordination here often depends on the awareness of the unit's leaders. In order to be able to verify account balances, the enforcement officer must work with commercial banks and credit institutions.
other applications, and the fact that very few bank executives are aware of their legal obligation to provide information. In particular, some bank executives deliberately prolong the verification period to facilitate customers who are subject to THA to disperse money in their accounts.
Not only with the Banks, but also the coordination of the relevant state agencies is very indifferent. In many cases, to verify the status of the enterprise as the person subject to the THA, the Enforcement Officer must travel many times and spend a long time (about 07 to 15 days) to receive the verification results, for example, with the tax authority, the business registration authority.
The coordination of the local authorities where the person subject to enforcement resides and where the property to be handled is important to the progress of the case. It can be said that without the coordination of the local authorities, there will be no successful enforcement session. Basically, the ward and commune authorities in Hanoi are aware of the obligation to coordinate with the enforcement officers in the enforcement activities, but in reality, due to many objective and subjective reasons, the enforcement officers have to travel many times, contact in advance to request work schedules many times before being able to approach the authorities. In some cases, due to fear of responsibility, they avoid providing information to the enforcement officers.
3.1.4. Conflict between civil enforcement law and local specialized regulations
The provisions of the THADS law only stipulate the procedures for THA. In reality, there are some provisions of the THA law that are inconsistent with the specialized regulations of other ministries or with the specific regulations of each locality. This inconsistency can be called a conflict of laws.
To see this conflict clearly, we will analyze the following real-life example: To execute the clause: Mr. A must pay Mr. B 1 billion VND, the bailiff verifies that Mr. A has 100 m2 of land in Dong Da district, Hanoi and the land price on the market is 100 m2.
The price of the land at the same location is 100 million/m2 . The enforcement officer only proceeded to seize 10.5 m2 of land according to the provisions of Article 8 of Decree No. 58/2009/ND-CP dated September 9, 2009: " Compulsory enforcement of judgments must correspond to the obligations of the person subject to enforcement and the necessary costs " [25] . After the auction of the above area and handover to the auction winner, a complaint arose because the auction winner was not granted a land use right certificate because according to the provisions of Clause 1, Article 3 of Decision No. 58/2009/QD-UBND dated March 30, 2009 of the People's Committee, the land use right certificate was not issued to the auction winner because according to the provisions of Clause 1, Article 3 of Decision No. 58/2009/QD-UBND dated March 30, 2009 of the People's Committee.
Hanoi City People's Committee on land allocation limits for plots of land with gardens and ponds in residential areas, minimum size and area of residential land to be divided for households and individuals in Hanoi City stipulates:
Land plots formed from subdivision and the remaining land plot after subdivision, if meeting the following conditions, will be granted a Certificate:
a) Has a frontage width and depth from the construction boundary of 3m or more.
b) Has an area of not less than 30m2 / plot [63].
Thus, there is a contradiction between these two regulations. If the enforcement officer seizes and auctions 10.5 square meters of residential land, the buyer of the property cannot obtain a Land Use Rights Certificate because it does not meet the local conditions. If the enforcement officer seizes 30 square meters of residential land, it violates the THA law. Resolving other similar conflicts is quite a difficult problem.
3.1.5. Some problems arising from the prosecuting agencies
The handling of assets that have been seized by the Court's judgment or decision also has many problems, especially for criminal judgments. In criminal judgments, it is quite common for the Trial Council to declare the seizure of assets, from mobile phones to motorbikes or real estate. However, the Trial Council often bases its decision on the record of temporary detention of assets or the decision to seize assets during the investigation by the police agency and decides to continue the seizure, which is often
did not verify whether the ownership belonged to the defendant or not, as well as the current status of the property that had been seized by the investigation agency. Therefore, in reality, the judgment decided to seize all of the defendant's assets, and then when the Enforcement Officer handled the assets, a complaint arose because the handling of the assets violated the ownership rights of the co-owners of that property. This is often encountered with the type of joint ownership consolidated by the spouses.
For example: In judgment No. 392/HSPT dated June 5, 2008 of the Court of Appeal in Hanoi - the Supreme People's Court declared: Continue to seize the house No. 4 Nguyen Binh Khiem, Nguyen Du ward, Hai Ba Trung district, Hanoi of Tran Thanh H.
After the THADS agency issued the THA decision and the enforcement officer conducted verification, it was known that this was a state-owned house, which was subject to sale under Decree 61. Thus, the enforcement officer would face difficulties because the judgment had declared the seizure to ensure THA, but the auction of state-owned assets that were being leased was not mentioned in the THADS Law.
This judgment also ordered the seizure of a Mitsubishi car with license plate number 29V-7212 belonging to Nguyen Thi D to ensure the release.
The enforcement officer verified and learned that this car had been seized by the police during the investigation, but the car was registered under the name of Mr. Nguyen Cao L (Ms. D's husband).
Through the above example, we can see the complexity in the application of the law by the litigation agencies, leading to difficulties for the THADS agency in practice.
3.1.6. Some problems in the regulation of enforcement costs
The cost of compulsory enforcement of judgments plays a very important role in whether the enforcement can take place or not. The cost of compulsory enforcement of judgments is the expenses
The cost of enforcement of judgment enforcement shall be borne by the person subject to enforcement of judgment enforcement, except in cases where the law stipulates that the cost of enforcement of judgment enforcement shall be paid by the person subject to enforcement or by the state budget (Clause 8, Article 3 of the Law on Enforcement of Judgments). However, in practice, collecting enforcement costs from the person subject to enforcement is very difficult and the enforcement officer is the person responsible for collecting enforcement costs from the person subject to enforcement. This will cause the enforcement officer to avoid the advance payment of enforcement costs from the agency and require the person subject to enforcement to pay the enforcement costs. This is not in accordance with the provisions of the Law but it still happens in practice.
The level of compensation for forces directly participating in enforcement is stipulated in Circular 184/2011/TTLT-BTC-BTP dated December 19, 2011 between the Ministry of Finance and the Ministry of Justice, which stipulates a level of 70,000 VND/person/day, an increase from the previous level of 40,000 VND/day/person. However, in reality, the compensation for enforcement, especially in urban areas such as Hanoi, is still low. Therefore, the Enforcement Officer often has to pay more than the prescribed level and the difference must be requested from the person receiving the THA for support. Once again, the Enforcement Officer must violate the law due to force majeure.
At point b, clause 1, Article 2 of Joint Circular Guiding the financial management mechanism on funding for organizing compulsory execution of judgments No. 184/2011/TTLT-BTC-BTP dated December 19, 2011 between the Ministry of Finance and the Ministry of Justice stipulates: " Costs for purchasing raw materials, fuel, renting means, protective equipment, medical equipment, fire prevention and fighting equipment, other necessary equipment and means for compulsory execution of judgments " [4].
But in reality, the enforcement organization in Hanoi city, the enforcement protection force, fire and explosion prevention are all undertaken by the police and military forces, these forces cannot provide invoices for the enforcement officers to account for the enforcement costs. But in reality, there are still separate costs for this force and the person receiving the judgment has to reluctantly pay these costs even though the law does not stipulate.