In the typical case of Judgment No. 57/2016/HSST analyzed above, no matter how many times the Enforcement Officer verifies, the result is still the same as the first time. Therefore, it is proposed to adjust that after re-verification has been conducted 2 times or more and the result is still the same as the first time, the Enforcement Officer does not need to re-verify. In addition, it is necessary to enhance the coordination between the People's Committee, the People's Police at the ward and commune levels and the THADS agency in notifying when there is any information from the person subject to enforcement because these are the two agencies directly managing the people in the area.
3.1.4 Enforcement Delegation
This is a procedure that is very helpful for the Enforcement Officer, because in reality, the person who must execute the judgment has many places of residence. The entrustment of execution will help the Enforcement Officer save a lot of time. In order for this procedure to always be implemented in the best way, the heads of each THADS agency must urge and supervise the department receiving the Decision and the entrusted file to strictly comply with the provisions of the law, not for the benefit of individuals or agencies, not to pursue targets that delay the settlement of the execution file, harming the rights and interests of individuals, organizations as well as the State. In addition, it is recommended that competent authorities need to provide additional regulations on handling violations in delaying the receipt of files as well as returning the form to the agency that issued the Entrustment Decision. In addition, it is necessary to upgrade the software system to monitor and supervise agencies in the delivery and receipt of trust documents to limit the situation of receiving trust documents but not returning the deposit slip and issuing the Decision on Execution of the Judgment.
3.1.5 Provisions on exemption from execution of judgment
As for the exemption from execution of judgment, this is considered a procedure that demonstrates humanity as well as encourages the person subject to execution of judgment to voluntarily execute part of his obligation to receive leniency. However, with the condition that only part of the judgment must be executed, it causes difficulties in application.
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In fact. Typically, the two judgments 57/2016/HSST and 14/2020/HS-ST analyzed above, the verification results of these two judgments are that they have left their place of residence, where they went and what they did, the local authorities do not know because when they left the locality to live elsewhere, they did not declare to the local authorities, then these cases are not considered, exempted from the obligation to execute the judgment. That is also one of the reasons why the type of proactive judgment is the type of work in which the person who must execute the judgment must have the obligation to pay the State budget, including the execution of the increasingly large backlog of fines.
On the other hand, in reality, there are many Judgments and Decisions that sentence the person subject to enforcement to pay a very large amount of money to the State budget, over 5 million VND, but most of them do not have the conditions to enforce the judgment, although the Enforcement Officer has fully performed the procedural steps according to the provisions of law, and at the same time encouraged and persuaded them many times to pay a part of the enforcement obligation, equal to 1/50 of the amount of money subject to enforcement to be considered for exemption or reduction of the enforcement obligation, but the person subject to enforcement resolutely refuses to pay or they want to pay but do not have the conditions, in some cases even challenge the law, ignoring their obligations.[14]
Therefore, it is recommended that competent authorities need to amend and supplement the law and issue documents guiding the work of considering exemptions and reductions in the obligation to execute judgments for State budget payments that are more suitable to reality. Specifically, amend and supplement in the direction of reducing the time for considering exemptions and reductions and it is not necessary to force the person subject to execution to pay a part of the obligation to execute judgments, because in reality, the person subject to execution is the person who does not voluntarily execute the judgment and does not have the conditions to execute the judgment. If the law is amended in this direction, the number of pending cases each year will certainly be significantly reduced, not creating a burden for the THADS agencies.
3.2 Enhancing the position and role of the THADS agency in the enforcement of fines
3.2.1 Enhancing the position of the Enforcement Officer in the process of enforcing fines
In order for the THADS agencies in general and the Enforcement Officers in particular to fully demonstrate their role as enforcers of the Court's Judgments and Decisions, it is necessary to grant stronger power and add more tasks and powers to the Enforcement Officers to promptly handle acts of procrastination and resistance to the enforcement of judgments such as: The right to issue decisions to arrest people, search locations and means related to the enforcement of judgments.
In addition, it is necessary to stipulate more specific measures to support THADS such as stricter sanctions for THADS violations. In reality, when enforcing fines, the Enforcement Officers are not able to put strong pressure on the judgment debtor. In case the judgment debtor procrastinates or resists, the Enforcement Officers can only seek help from the Police to resolve the situation because the Enforcement Officers themselves do not have any other rights to suppress or handle the resistance of the judgment debtor.
3.2.2 Strengthening the dissemination and propaganda of THADS law
The fact that people do not fully understand the role and work of THADS in general and the enforcement of fines in particular will sometimes cause many difficulties in the enforcement of judgments. Therefore, the dissemination and popularization of the law on enforcement of judgments is a matter that deserves attention and implementation in practice in many ways such as:
- Dissemination and oral propaganda:
This form of propaganda is mainly carried out by the Executive Officers, this popular method has many advantages in terms of flexibility, can be easily carried out anywhere, in any conditions, circumstances and number of listeners. The propagandist will have an advantage in explaining and analyzing.
as well as clarifying the contents that need to be disseminated and the two sides can directly respond to each other to meet each other's requirements. Thereby, it is necessary to improve the presentation and persuasion skills of the Enforcement Officers and the officers and civil servants working in THADS so that the dissemination, dissemination and education of the law on enforcement of judgments can be carried out in the most effective way.
- Dissemination and propaganda through loudspeakers and newspapers:
To carry out this work, it requires coordination between the enforcement agency and local press agencies and radio stations to disseminate information through forms such as loudspeakers. In addition, encourage and motivate officers and civil servants working in the enforcement of judgments to write articles, share knowledge about the law on enforcement of fines and post them on the information page of the Enforcement Agency.
- Dissemination and propaganda through organizing competitions to learn about the law on execution of judgments.
Opening competitions to learn about the law of execution is a bridge to convey legal content into life, an attractive and effective form of legal cultural activities. Through that, it will directly impact the legal awareness of the contestants, in addition, it will be a place to exchange, learn experiences, knowledge about the law and disseminate and educate both the contest organizers and the followers.
3.3 Application of fines by the People's Court
As mentioned, the fine will directly affect the economy of the person being applied. Therefore, when applying a fine to an individual or legal entity, it is necessary to consider the financial capacity and economic conditions of the person committing the crime.
For individuals who commit crimes, the financial capacity of the individual is the assets legally owned by the offender, documents proving their property rights that can be proven to the authorities.
The competent authority shall conduct proceedings on the possibility of enforcement of judgment if a fine is imposed. Proving the financial capacity of an individual committing a crime depends on many subjective and objective factors in the process of implementing the State's policy of managing citizens' assets.
For a commercial legal entity committing a crime, proving financial capacity is much easier than for an individual criminal entity. Through all input and output invoices, accounting books, business assets, outstanding debts... the competent authorities conducting the proceedings will prove the conditions for applying a fine to the commercial legal entity committing the crime.[10]
In addition, one of the factors that the competent authorities conducting the proceedings need to pay attention to in the process of applying fines is the "market price fluctuation factor", which can be said to be a flexible basis for those conducting the proceedings to be able to flexibly, reasonably and appropriately apply to the determination of specific fines for criminals. Currently, the application of fines is mainly based on the provisions of the 2017 amended Penal Code but has not yet taken into account the possibility of the person being subject to the fine being able to execute the sentence later.
In practice, the enforcement of fines in District 2 has many cases where the judgment cannot be enforced because the person subject to the judgment is unable to enforce the judgment. Therefore, when applying a fine as an additional penalty, the Court also needs to consider the offender's ability to enforce the judgment to avoid backlogs, increasing the number of cases that are not eligible for enforcement, causing difficulties for the Enforcement Agency. A fine is only applied as an additional penalty when there is documentation proving that the offender has the financial capacity to ensure enforcement.
Therefore, to help enforcement agencies to enforce fines more easily, there needs to be adjustments in the application of fines.
Current Penal Code. The application of fines should be adjusted based on the financial capacity and ability to pay the fine of the person subject to enforcement. Fines that exceed the ability of the person subject to enforcement will only make the enforcement of fines more pending in reality. The People's Court can base on the salary or actual circumstances of the person concerned to determine a reasonable fine. To do this, the investigation process must be carried out strictly, the Investigation Agency must verify the identity and financial capacity of the person concerned and then provide the verification results to the Court. Based on that, the People's Court will determine a reasonable fine for the person subject to enforcement as well as the enforcement of fines by the THADS agency later.
3.4 Coordination between Civil Judgment Enforcement and other agencies
Through the above analysis, we can see that the THADS agency always has to coordinate with many other agencies. Typically, in verifying the conditions for execution of judgments, to obtain the most accurate and best verification results, the Enforcement Officer must coordinate very smoothly with other agencies. Because THADS work is an activity directly related to the property and personal rights of the parties, the THADS agency cannot rely solely on itself but needs to coordinate with relevant agencies and organizations. Good coordination with relevant agencies, organizations, departments and branches in THADS is one of the important factors determining the effectiveness of THADS work as well as the enforcement of fines.
In the process of organizing the execution of judgments, the THADS agency must carry out many stages and procedures that require close coordination with relevant agencies and organizations to improve the effectiveness of the execution of fines. However, if just one of the stages in the coordination work is not up to standard, it will affect the entire execution process, affecting the progress of the execution of judgments. Therefore, the Enforcement Officer and the enforcement agency need to
The need for greater coordination with relevant agencies and mass organizations in the entire political system so that the work of THADS brings the highest efficiency, meeting the requirements of the assigned tasks. In THADS, effective coordination not only allows THADS agencies and Enforcement Officers to effectively handle the work within their functions and authority, but also enables them to solve difficult and complicated problems beyond their capacity and authority, urgent and sudden problems, and key and priority issues that require the mobilization of many external resources to be resolved effectively. [7]
The activities of the THADS agency in general and the enforcement of fines in particular have somewhat affected agencies, organizations, enterprises and individuals. At the same time, relevant agencies, organizations and individuals have not yet fully realized their responsibilities or have recognized their responsibilities but have not implemented, or have not fully and promptly implemented the requirements of the Enforcement Officer, Head and Deputy Head of the THADS agency, leading to the undeniable fact that there are still many pending THADS files. In addition, the coordination work has been stipulated by law but has not been specific and strict in the implementation process. Sometimes, in some cases, there are still limitations and inadequacies, significantly affecting the progress of the enforcement of the judgment of the Enforcement Officer and the THADS agency. When organizing the enforcement of a Judgment or a Decision of the Court, it is a whole process. The THADS agency cannot perform all the work by itself but must coordinate with relevant agencies and organizations. Regarding land use rights, it is necessary to coordinate with the agency managing natural resources and environment, the agency registering security measures; regarding consideration of exemption or reduction of judgment execution, it is necessary to coordinate with the Court and the Procuracy; regarding handling confiscated assets and destruction of evidence, it is necessary to coordinate with the financial agency and the police.
However, the practice of enforcing fines shows that coordination does not always and everywhere have a positive effect, but sometimes it does not.
Coordination has negative effects that hinder the execution process or affect the legitimate rights and interests of agencies, organizations and individuals. If coordination exceeds the necessary needs, to the point of being abused, then coordination will become counterproductive, giving rise to negative problems in the execution organization process and in the management of civil judgments, leading to the limitation of development and improvement of management capacity of civil judgment enforcement agencies. That is the over-regulation of coordination responsibilities, over-emphasizing the need for coordination without taking into account the clear division of authority and specific responsibilities, then coordination can be abused, creating imposition on agencies and organizations responsible for coordination.
In short, in order to coordinate between agencies and the THADS agency in a serious, tight, timely, accurate and thorough manner, it is necessary to issue coordination regulations that clearly define the rights and obligations of each agency in coordinating with the THADS agency to avoid pushing and overlapping, causing a waste of time and effort of the Enforcement Officer when coordination between agencies is needed. Relevant sectors need to continue to thoroughly grasp and fully implement the contents of the issued inter-sectoral regulations, associated with the functions and tasks of each sector to coordinate, organize and effectively implement the contents of the regulations. It is necessary to accelerate the work of building institutions, especially the contents related to THADS to ensure the unity and synchronization of the legal system, contributing to improving the feasibility of Judgments and Decisions. There should be strict regulations and specific sanctions to implement in a synchronous and unified manner between relevant agencies and the THADS Agency .
In addition, each Enforcement Officer must also focus on improving their expertise and professionalism, and have the skills to handle unexpected situations to avoid relying on agencies and departments. In addition, Enforcement Officers must know how to use the art of communication to establish and maintain relationships.