become honest citizens (for those sentenced to imprisonment). To carry out the above-mentioned enforcement and management activities, the methods of persuasion and education are important, but the method of command and compulsory execution has a special nature, especially in the execution of criminal sentences, this is considered the main and decisive method.
+ Enforcement of judgments is an administrative-judicial activity because: first, the basis for enforcement of judgments is the judgments and decisions of the court; second, there is the participation of judicial agencies (in a broad sense) in the enforcement process. This is a concept with many reasonable points. However, as analyzed in the above section, the basis in enforcement of judgments is the nature of execution, management and compulsory methods, meaning that the administrative nature shows the preeminence, the basis, and the continuity throughout the enforcement process. The question that needs to be raised here is whether it is possible to determine the level and dosage of administrative and judicial nature in enforcement of judgments or not? Practice also shows that the characteristics of each type of enforcement as well as each group of cases in each type of enforcement determine the level of administrative and judicial nature. According to the author, in enforcement of judgments, the judicial nature is always shown at a more limited level than the administrative nature.
Through the above analysis, the concept of enforcement can be understood as follows: " Enforcement is an administrative-judicial activity of the State, conducted by State agencies and competent persons in accordance with the procedures prescribed by law to bring judgments and decisions of the Court that have come into legal effect to be enforced in practice, in order to ensure the interests of the State, the legitimate rights and interests of individuals and organizations, protect social order and safety, and ensure socialist legality"
In criminal judgments and decisions, in addition to judgments on criminal liability, there are also judgments related to civil liability. According to the provisions of the Law on Civil Judgment Enforcement 2008 (amended and supplemented in 2014), judgments on money and property in criminal judgments and decisions are enforced by civil judgment enforcement agencies.
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The enforcement of the money and property portion of a criminal judgment or decision must first comply with the general procedures prescribed by the Law on Civil Judgment Enforcement as for the following cases:
with normal enforcement cases; In addition, the Enforcement Officer needs to consider specific factors to ensure the effective enforcement process. In addition to the general provisions on enforcement procedures, the 2008 Law on Civil Enforcement (amended and supplemented in 2014) devotes 01 section with 08 articles (from Article 122 to Article 123).
129) regulations on the enforcement of confiscation to the state budget, destruction of exhibits, refund of money, handling of seized and temporarily detained assets in criminal judgments and decisions.
Criminal judgments and decisions of the Court enforced under civil enforcement procedures include 2 types:
Firstly, the judgment and decision have come into legal effect, including:
a) The judgment, decision or part of the judgment, decision of the Court of first instance is not subject to appeal or protest according to the appellate procedure;
b) Judgment and decision of the Court of Appeal;
c) The Court's decision on final appeal or retrial;
Second, judgments and decisions of the Court of First Instance are immediately enforced, although they may be appealed or protested, such as:
a) Judgments and decisions on alimony, salary payment, labor payment, severance allowance, unemployment allowance, loss of working capacity allowance or compensation for damage to life, health, mental damage, and reinstatement of employees;
b) Decision to apply temporary emergency measures;
According to the provisions of law, criminal judgments and decisions that have come into legal effect, or have not yet come into effect, are enforced immediately, although they may be appealed or protested as mentioned above. When enforced, they must be carried out according to a very strict procedure prescribed by law.
The head of the civil enforcement agency shall proactively issue decisions on enforcement of judgments and decisions on fines, recovery of money and assets gained illegally, court fees; return of money and assets to the parties; confiscation to the state budget, confiscation and destruction of evidence and assets; recovery of land use rights and other assets subject to confiscation to the state budget and decisions on application of temporary emergency measures.
Within 05 working days from the date of receipt of the judgment or decision, the Head of the civil enforcement agency must issue a decision to enforce the judgment. Within 24 hours from the date of receipt of the decision to apply temporary emergency measures transferred by the Court or directly delivered by the litigant, the Head of the civil enforcement agency must issue a decision to enforce the judgment and assign an Enforcement Officer to organize the enforcement.
Within 02 working days from the date of issuance of the decision to execute the judgment, the Head of the civil judgment enforcement agency must assign an Enforcement Officer to organize the execution of that judgment enforcement decision.
From the above analysis, the concept of enforcement of civil decisions in criminal judgments can be presented as follows: " Enforcement of civil decisions in criminal judgments of the Court is an administrative-judicial activity, a task of civil judgment enforcement agencies, carried out by enforcement officers according to the procedures prescribed by the Law on Civil Judgment Enforcement in order to enforce criminal judgments in practice, forcing the convicted person to implement decisions on fines, confiscation of assets, recovery of money and assets illegally obtained, handling of evidence, court fees; implementation of alimony obligations, compensation for damage to health, honor, dignity, compensation for property damage... Contributing to ensuring the interests of the State, organizations, legitimate rights and interests of citizens, protecting the socialist legal system".
1.2.1.2. Characteristics
From the perspective of approaching the concept of enforcement of civil decisions in criminal judgments, on the basis of current legal provisions and from the practice of civil judgment enforcement, the following characteristics of enforcement of civil decisions in criminal judgments can be drawn:
Firstly, the enforcement of civil decisions in criminal judgments is an activity of administrative-judicial nature and state power.
- Administrative nature is shown in that: enforcement of civil decisions in criminal judgments is a form of enforcement and management activity.
+ Enforcement of civil decisions in criminal judgments is a form of enforcement activity because it is carried out on the basis of judgments and decisions that have come into legal effect and within the framework of legal regulations; from the enforcement process with different measures and methods, all aim to carry out the contents declared by the judgment and in accordance with relevant legal regulations.
+ Enforcement of civil decisions in criminal judgments is a form of management activity because it is affected by specialized laws and other related laws that affect the subjects of judgment enforcement so that they voluntarily comply or apply strict measures to force them to comply, educating convicted people to have the awareness to respect the law, respect the interests of the state, organizations and individuals.
- Judicial nature is shown in:
+ Enforcement of civil decisions in criminal judgments has the basis for enforcement as the judgments and decisions of the Court, and at the same time, there is the participation of judicial agencies in the enforcement process. The judicial nature here is understood in a broad sense. Practice in our country shows that judicial agencies are often understood as agencies: People's Court, People's Procuracy, investigation agencies, criminal enforcement agencies, civil enforcement agencies. In terms of general regulations on the level of countries in the world, this determination is still inadequate. Because, in terms of theoretical basis, many countries in the world consider judicial power as the right to consider and decide on violations of the law and disputes; the Court is the only independent agency. The People's Procuracy (or prosecution) is only an agency participating in judicial activities.
The administrative-judicial nature is an important feature when regulating the organization and operation of enforcement. It is an activity under the management of the system of executive agencies, so in the provisions of the law on enforcement, the main responsibility in the management organization must be clearly identified.
Second, the subjects enforcing civil decisions in criminal judgments are the THADS agency, the Enforcement Officer and the parties.
From practice, it is shown that the THADS relationship always exists clearly, the THADS agency, the CHV and the person who is and is subject to the enforcement, are formed on the basis of the judgment.
of the Court and other relevant agencies as prescribed by law. The enforcement agency and the enforcement officer are the entities exercising state power to enforce the judgment as prescribed. In principle, the proactive and independent nature of the enforcement officer in their work must be respected and protected. The enforcement officer must base on the content of the judgment, decision, the nature and extent of the enforcement of the civil decision in the criminal judgment, the conditions of the person subject to enforcement... and the actual situation of the locality to apply the necessary coercive measures if the person subject to enforcement does not voluntarily comply.
Third, the enforcement of civil decisions in criminal judgments is carried out in strict accordance with the law.
The THADS procedure is a strict mechanism to serve the process of enforcing judgments in accordance with the law. The first thing is to ensure accuracy and objectivity. This procedure is shown right from the time of receiving the judgment from the Court or receiving the request of the person subject to enforcement, verifying the conditions for enforcement, notifying the enforcement, enforcing the enforcement... Ensuring the procedures and processes demonstrate democracy, publicity, and fairness, is the basis for ensuring the effective enforcement of the Court's judgments. In reality, it shows that many enforcement officers who do not apply the law correctly have had to compensate the State, and even enforcement officers have been disciplined or prosecuted.
Fourth, the enforcement of civil decisions in criminal judgments and the enforcement of civil judgments have similarities, but also have their own specific characteristics.
The characteristic of the enforcement of civil decisions in criminal judgments is that they must be legal in nature, that is, they must be prescribed by law. Therefore, decisions that are not prescribed in legal documents are not civil decisions in criminal judgments. The content of civil decisions in criminal judgments only includes court judgments on civil matters. These are decisions on fines, penalties for confiscation of property; on court fees; decisions on confiscation of objects and money directly related to crimes; decisions on return of property, repair and compensation for damages, decisions on public apologies, etc. Regarding the form of expression: civil decisions stated
The above must be shown in the criminal judgment or decision. Regarding the subject with the authority to issue these decisions, it must be issued by a competent Court. Regarding the subject of enforcement: the individual convicted or the convicted commercial legal entity. These individuals and organizations are required to comply, because it is their legal obligation. The enforcement of civil decisions in criminal judgments and the enforcement of civil judgments are the same in that they must comply with the legal procedures prescribed in the 2008 Law on Civil Judgment Enforcement (amended and supplemented in 2014) and other relevant guiding documents. The most basic difference is the subject of enforcement. The characteristic of the subject of enforcement of civil decisions in criminal judgments is that the person must bear two legal responsibilities for the same criminal act, which are criminal liability and civil liability. They are people who have had criminal records, are serving sentences in prisons, re-education camps, or often live on the streets, without a clear place of residence, or psychologically when released from prison due to inferiority complex, they leave their hometown to go elsewhere without informing the local authorities. In reality, it also shows that the subjects who commit crimes of theft, robbery, intentional injury, murder... are mostly poor people who do not have any property to carry out. In addition, many cases of them think that their crimes have been paid for by their days in prison, so they do not care about civil responsibility.
1.2.2. Meaning
The meaning of enforcement of civil decisions in criminal judgments can be summarized as follows:
One is: ensuring the legal validity and practical effectiveness of civil decisions in criminal judgments.
In order for the judgments and decisions of the Court to come into practice, to demonstrate the strictness of the law. It is necessary to best ensure the rights and legitimate interests of the parties, the application of active and optimal measures by the THADS agency, in the end, is to achieve the goal: "All judgments and decisions of the People's Court that have legal effect must be respected by agencies, organizations and individuals; agencies, organizations
Relevant organizations and individuals must strictly comply" in accordance with the provisions of Article 106 of the 2013 Constitution.
Due to the specific nature of the work of THADS, this activity is often related to many different organizations and individuals in society and is often closely linked to the property rights of citizens. Therefore, THADS easily leads to human rights and civil rights, so it is necessary to have a mechanism to monitor and inspect THADS activities. According to the provisions of Vietnamese law, there are currently many individuals, agencies and organizations that carry out inspection and supervision such as: the National Assembly, People's Councils at all levels, the Fatherland Front, the Steering Committee for the execution of judgments... and most often the People's Procuracy at all levels, this ensures that the execution of judgments is carried out in accordance with the law and is more effective; However, from reality, it is very necessary to have appropriate regulations to limit unfounded interference in the activities of enforcement agencies and enforcement officers.
Second, the enforcement of civil decisions in criminal judgments is one of the important methods to protect the rights of the person subject to enforcement, the legitimate rights and interests of individuals and organizations as well as the common interests of the State and society.
During the execution of judgments, the law on civil judgments stipulates and protects the right to voluntariness and the right to self-agreement between the parties. Strengthening education and persuasion of litigants and their relatives to voluntarily execute judgments is not only required for cases of execution of money and property in criminal judgments and decisions, but is also a necessary requirement for the execution of judgments and decisions in general. However, for cases of execution of civil decisions in criminal judgments, the issue of educating and persuading litigants and their relatives to voluntarily execute judgments needs to be given special attention by the Enforcement Officer.
In practice, we see that the parties in criminal cases are often people who have no assets or have assets but not enough to execute the judgment and have an uncooperative attitude with the enforcement agency, therefore, persuading them to voluntarily execute the judgment will help the enforcement process go more smoothly. In addition, for the type of subjects who must execute the judgment without assets, the Enforcement Officer needs to persuade them to voluntarily execute the judgment.
Serve the relatives of the litigant to support the litigant in executing the judgment so that the execution process achieves results.
During the course of their work, the Enforcement Officer needs to apply the skills of mass mobilization, influencing the psychology of the parties and their relatives to bring them to voluntarily execute the judgment. In order for the education and persuasion to be effective, the Enforcement Officer needs to grasp the current legal regulations on amnesty, in which the completion of the execution of civil decisions in criminal judgments is determined to be one of the criteria for consideration of amnesty.
Unlike many countries in the world, the Court is the competent authority to decide on the enforcement of judgments. In Vietnam, this authority has been transferred to the civil enforcement agency since July 1993. After all, although the authority to decide on the organization of enforcement of judgments is different, there is a common point in the laws of these countries, which is to ensure control over the use of sanctions in civil judgment enforcement, meaning that only the State has the right to enforce judgments. The State assigns the enforcement agency and the Enforcement Officer to do so. Any other individual or organization is not allowed to use the power to force others to perform their obligations if the law does not permit it.
When discussing the enforcement of judgments, Professor Claude Brenner, Pantheon-Assas University, said: “In a state of law, the state authority is the only authority that has the authority to enforce judgments. Therefore, enforcement of judgments only involves state authorities. When carrying out enforcement, state authorities need the support of public power. Individuals cannot manipulate this activity, nor can they distort the organization of enforcement according to the provisions of law. Because this is an activity based on power.”
When talking about the significance of civil judgment enforcement (CJE), former Prime Minister Phan Van Khai said: “Civil judgment enforcement is a difficult and complicated task, but it is very important in protecting the rule of law, protecting the rights and legitimate interests of citizens, and maintaining the discipline of the law.