Features of Verifying Conditions for Enforcement of Civil Judgments

With the above analysis, NCS gives the following definition of verification of conditions for enforcement of civil judgments: “Verification of conditions for enforcement of civil judgments is a civil judgment enforcement procedure, in which the person authorized by the State performs the procedures prescribed by law to collect information on assets, income, and other conditions for enforcement of judgments of the person subject to enforcement as a basis for organizing enforcement of judgments according to the provisions of law.”

2.1.2. Characteristics of verifying conditions for civil judgment enforcement

- Verifying THADS conditions is a THADS procedure.

Verifying the conditions for THADS is a THADS procedure, and at the same time, one of the important procedures of THADS activities. One of the principles affirmed in the Guide to Better Implementation of the Council of Europe's Recommendation on THA is that "In order to maintain the law and for people to have confidence in the court system, effective THA procedures are needed. However, THA can only be achieved when the person subject to THA has the conditions or ability to satisfy the judgment" [100]. Thus, verifying THADS conditions is a procedure in the THADS process, therefore, without THADS activities, there is no THADS condition verification activity. This feature helps explain why the laws of many countries require that in order to have the right to collect information about the THADS conditions of the person subject to THA, the person subject to THA must present a document proving that he or she has the right to THA. In France and Spain, it is not allowed to search for information about the financial situation of the person subject to THA before having an official THA-able document (title) [106, pg.34]. This feature also helps to distinguish it from the verification and information collection activities of other subjects. For example, verification is also considered as the activity of collecting evidence in civil proceedings, but with the activity of verifying the THADS conditions, the person subject to THA is also supported by the regulation on the mandatory provision of information by the person subject to THA and the third party. Because, when starting the THADS process, the person subject to THA is having to perform an obligation, therefore, providing information is a mandatory thing to do, if evaded, it will be an act of violating the obligation and will be subject to punishment (as in the legal regulations of the US, UK, Canada).

- The subject of verification is closely linked to the THA organization system that each country chooses as well as the views of legislators on the verification of THADS conditions.

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Normally, other activities in the THA process such as THA notification, THA settlement, recording the agreement of the parties, THA enforcement are all performed by the competent person organizing THA (CHV/TPL/THA judge/court officer), so re-verification activities are not automatically regulated like that.

In countries that view the THADS activities as activities of public authorities, the person with the authority to organize THA is a state official, and the THA agency is a state agency (which can be within the court system or outside the court system). Therefore, the person who verifies the THADS conditions is a state official such as Russia [103, p.345], Italy [103, p.452], China [103, p.572].

In countries with common law systems such as the UK, US, and Canada, the option is to give the right to proactively verify to the person being granted the THA with support from the court and strict sanctions for the act of not providing information by the person being granted the THA [93], [102], [112].

For countries that choose a private or semi-private THA system, verification is assigned to TPL such as France [94, p.23], Estonia, Belgium, Montenegro [104, p.7], Bulgaria [103, p.419].

In Vietnam, all three entities including the CHV, the TPL, and the THA beneficiary have the right to verify the THADS conditions but with different scopes of authority. In which, the CHV is fully authorized, in all cases, if there is no other request from the THA beneficiary, it must verify. The TPL only conducts verification when the party or the person with related rights and obligations requests verification or requests the THA organization. The THA beneficiary can choose to verify himself or authorize another person to verify or let the CHV conduct the verification.

- The verification of THADS conditions is carried out at many different times and locations during the THADS process. The verification of THADS conditions is carried out at many different times during the THADS process. For example, in cases where THA actively verifies or verifies at the request of the litigant, the verification of THADS conditions is carried out after the voluntary THA period has expired. In cases where the person being THA verifies the THADS conditions of the person subject to THA and submits a THA request, but the CHV does not agree with the verification result, the CHV will re-verify the THADS conditions. In cases where a decision to apply temporary emergency measures is enforced, the verification of THADS conditions is carried out first.

During and after the application of temporary emergency measures. The verification of THADS conditions is also carried out at different locations depending on the subject of verification. For example, when verifying the current status of real estate, the verification location is where the real estate is located; when verifying the owner of a vehicle, the verification location is at the traffic police department; when verifying money and accounts, the verification location is at banks, credit institutions, etc.

- The content of verifying the conditions for THADS is mainly to disclose information about the income and assets of the person subject to THA. Most THADS obligations are obligations regarding assets. Therefore, except for special cases where it is necessary to verify the identity and attitude of the person subject to THA to fulfill the obligation to perform or not perform a certain task, the main content of the verification is to disclose information about the income and assets of the person subject to THA. To organize THADS, what assets and income of the person subject to THA must be disclosed? The specific quantity and type? Are the assets of the person subject to THA kept by them or by others? Are they intangible assets or tangible assets? Are they existing assets or assets formed in the future?...

- The verification of THADS conditions must be carried out fully and accurately in accordance with the procedures prescribed by law. THADS Law specifically stipulates the procedures for THADS to ensure the effectiveness of THADS. Verification of THADS conditions is a step in the THADS process. Therefore, the verification of THADS conditions must be carried out fully and accurately in accordance with the procedures prescribed by law, from the verification subject, the format of the document requesting information, the time limit for verification; the place of verification, the verification record... to avoid cases of arbitrary application.

In addition to the above characteristics, because verification of THADS conditions is a THADS procedure, verification of THADS conditions also has the following THADS characteristics:

Firstly, THADS activities directly affect the rights and interests of the parties and are always subject to fierce opposition from the parties.

The impact of adjudication activities on the rights and interests of others through the Court, on behalf of the State, declaring that a person or a group of people must bear one or more certain obligations. However, the Court's judgment is only on paper. In reality, the person with the obligation is not yet forced to perform his or her obligation under the supervision of a competent State agency. But

The activities of THADS directly affect the rights and interests of the individual litigants because they have to perform their obligations according to the decisions in the judgments and decisions of the Court and other competent agencies and organizations. During the THA process, the Court must affect the personal interests of the litigants, such as forcing them to pay money, if they do not voluntarily pay, their assets will be seized and sold, requiring the income management agency of the litigants to deduct from their income, requiring the person holding the money or assets of the litigants to hand over that money or assets to the THA agency... And that is also why THADS activities are always subject to fierce opposition from the litigants. In practice, litigants are not always satisfied with the judgments of the Court, in fact, the opposition to the judgments of the Court is relatively high. The litigants always think that they are right; their rights and interests are legitimate and need to be protected. Therefore, they will resist and resist to the end if the Court does not protect their rights and interests. However, the Court's adjudication also has its limits. At a certain point, within the legal limits, the Court's judgment is the final decision and the parties are forced to implement the judgment. And when the Court's judgment, or in other words, the Court's judgment or decision becomes legally effective, without appeal or protest, the enforcement agency is obliged to enforce that judgment or decision. At this time, the resistance and opposition of the person subject to enforcement will be stronger than ever. They believe that a certain property that should have belonged to them was taken away by the enforcement agency. After many years of having a decent house, they suddenly become "homeless" (in the case where the enforcement agency takes coercive measures to force the house to be handed over)...

Second, THADS activities are not absolutely independent but must always have close coordination with relevant individuals, agencies and organizations.

As analyzed above, due to the complexity of THADS activities, in the process of organizing THA, CHV needs to have the coordination and support of relevant individuals, agencies and organizations. This coordination relationship is reflected in the provisions of the law on THADS. Specifically, Article 169 of the Law on THADS stipulates the tasks and powers of the Ministry of Public Security in THADS, Article 170 of the Law on THADS stipulates the tasks and powers of the Court in THADS, Article 171 of the Law on THADS stipulates the tasks and powers of the Supreme People's Procuracy in THADS, Articles 173, 174, 175 of the Law on THADS stipulates the tasks and powers of the People's Committees at the provincial level, the People's Committees at the district level and the People's Committees at the commune level in THADS.

THADS; Article 176 of the Law on THADS stipulates the responsibilities of the State Treasury, banks and other credit institutions in THADS; Article 177 of the Law on THADS stipulates the responsibilities of Social Insurance in THADS; Article 178 of the Law on THADS stipulates the responsibilities of property registration agencies and secured transaction registration agencies in THADS...

The practice of THA shows that relevant individuals, agencies and organizations play a very important role in the organization of THA by the THADS agency. For example, to organize a THA enforcement session, the THA agency must coordinate with relevant agencies such as the People's Committee, the Department of Natural Resources and Environment, the Police, etc. For complicated cases, the THA agency must report to the THA Steering Committee to ask for instructions. Or in order for the THA agency to verify the account and income of the person subject to THA, there must be coordination from the State Treasury, the Bank, the Social Insurance, etc.

Third, THADS activities in Vietnam are increasing both in terms of the number of cases to be executed and the complexity of the cases.

With the policy of persistently pursuing the renovation policy in transforming the economy from a centrally planned economy to a multi-sector commodity economy with socialist orientation operating under a market mechanism under state management, Vietnam's socio-economic situation in recent times has been undergoing important changes in the direction of increasingly dynamic, rich and diverse development, the material and spiritual life of the people has been improved, and the intellectual level of the people has continued to be raised. However, besides that, the market mechanism also operates according to its own objective laws, which are the law of supply and demand, the law of value, and the law of competition. Accepting the market economy means acknowledging and being subject to the influence and impact of those objective laws. Previously, under the centralized subsidy mechanism, economic disputes were often resolved according to state economic arbitration procedures, civil disputes were often small, less complicated in nature, the scope of THA work was mainly to organize the enforcement of judgments and decisions of the Court on civil, marriage and family, the civil part of judgments and decisions on criminal matters. Currently, in the conditions of developing a socialist-oriented market economy, civil-economic exchanges are increasingly diverse and rich, "with a variety of economic entities of all economic sectors conducting production and business activities to seek profits, on the basis of the principles of freedom of business, freedom of contract, freedom of contract, will give rise to countless economic, civil, and commercial relations. The risk in these relations will certainly

giving rise to disputes over interests between subjects”. In particular, the provisions of the 2015 Civil Code have created an open legal environment, ensuring that organizations and individuals can exercise their civil rights proactively and safely in the market economy, contributing to the stability and development of civil life. Workers are considered the core element of the market economy, but with the shortcomings of the market economy being in a state of crisis and unemployment, they are always at risk of having their rights violated and being fired, without a job. In addition to the dynamic and positive aspects brought about by the market economy, the negative side of the market mechanism has also been revealed and affected all aspects of social life. Violations of the law and crimes, especially economic crimes, smuggling, major corruption, civil, economic, labor and administrative disputes are constantly increasing. The number of cases that the Courts at all levels have resolved is increasing, the value of money and assets to be executed is increasing, and the nature is increasingly complicated. Therefore, the number of THADS cases is increasing, both in terms of quantity, value of THA money and complexity. Specifically, the statistics of THA results nationwide from 2016 to present are as follows:

In 2016, the total number of cases requiring compensation was 642,885, the total amount of compensation was 46,505,104,227,000 VND [12];

In 2017, the total number of cases requiring compensation was 732,179, the total amount of compensation was 70,562,600,894,000 VND [13];

In 2018, the total number of cases requiring compensation was 779,298, the total amount of compensation was 95,108,655,390,000 VND [14];

In 2019, the total number of cases requiring compensation was 791,412, the total amount of compensation was 125,956,077,215,000 VND [15];

In addition to the increasing trend in the number of cases and the value of the THA, the nature of THA cases is also becoming more and more complicated. Specifically, the number of THA cases in commercial business is increasing rapidly, especially bank credit cases. At the conference to review the implementation of Regulation 01 on coordination between the State Bank of Vietnam and the Ministry of Justice in THADS work, Deputy Director General of the General Department of THADS Nguyen Van Son said: In 2015 and the first 6 months of 2016, the number of cases to be enforced for credit institutions and banks was 33,365 cases, corresponding to the amount to be enforced of about 130 trillion VND [41]. Not only is the number increasing, but bank credit cases are the type of cases that cause many difficulties and complications for the agency.

THA in the process of enforcement from the verification of THA conditions to the handling of mortgaged assets. In many cases, the mortgaged assets are land use rights with an area difference between the land use right certificate recorded in the judgment and the actual verification, or overlap with the land area of others. The mortgaged assets are movable assets such as cars, boats, etc. When requesting THA, the bank can only provide the mortgage documents but cannot determine where the assets are currently located, which is also a big problem for the THA agency when verifying THA conditions. In addition, many cases of mortgaged assets being factories built on the right to use leased land in industrial parks also cause a lot of trouble for the THA agency...

In addition, there are also some prominent cases of THA recently, which have attracted public attention, which are cases related to economic crimes, with crimes such as intentionally violating state regulations on economic management causing serious consequences, fraud and appropriation of property, taking advantage of positions and powers in performing official duties, with some typical cases emerging, such as: Pham Thanh Binh case (Vinashin), Nguyen Duc Kien case, Vu Quoc Hao case (Financial Investment Company II), Huynh Thi Huyen Nhu case... In addition to being sentenced to severe penalties, the person who must THA in these cases must also perform civil liability with a very large value to be enforced, in some cases the amount to be THA is up to thousands of billions of VND. Although the amount to be THA is large, the assets to secure THA are of very small value, not enough to fulfill the obligations declared by the judgment. For example, in the case of Duong Chi Dung in the Vinalines case, according to the judgment, Duong Chi Dung and his accomplices must jointly compensate Vietnam National Shipping Lines over 358 billion VND (divided by portion: Duong Chi Dung must pay 110 billion VND). During the judgment, the judgment enforcement agency handled the seized assets and collected over 14 billion VND, while Duong Chi Dung's judgment enforcement obligation is still very large. In addition to the assets that have been seized and declared for handling in the judgment and decision of the Court, the judgment enforcement agency can hardly verify additional assets or other sources of income, because corrupt criminals often find ways to disperse, conceal, and rationalize assets...[82]

2.2. The significance of verifying conditions for execution of judgments in civil execution activities

Verification plays an important role in most of the different stages of the THADS process. Verification results will be the basis and orientation for CHV to organize implementation in accordance with legal regulations, on the basis of comprehensive verification results.

and fully, the Court can process the THADS file in the direction of: entrusting, suspending, putting it into the category of work that is not yet eligible for execution or the Court can apply security measures or apply compulsory THA measures.

Verification of THADS conditions must be carried out regularly and continuously by the CHV, both following the developments of the THA case and according to legal regulations. To answer the question of whether or not the person subject to THA has the THA conditions, this question can only be answered through the verification results.

Therefore, it can be said that verification work plays a very important role in the chain of THADS activities. In fact, the time for CHV to perform verification work on average must take up more than half of the time of a file from the time it is assigned by the head until the file is completed, not to mention that for files that require the application of coercive measures with the mobilization of a large force, the time and content of verification are very diverse and complicated due to the nature of the assets and property ownership. Even files that have been verified without conditions, classified as work that does not have THA conditions, but every year (6 months or no more than 12 months depending on the type of work), CHV still has to periodically verify.

Verification work is of decisive significance to the work of classifying THA records. Classification of THA records has become one of the contents of the set of criteria assigned annually when evaluating the level of task completion, and is also one of the emulation criteria of individuals and THADS agencies. The work of classifying records aims to reduce work pressure and increase the efficiency of THADS work in general and the implementation of task targets in particular.

Thus, through the verification work, a series of other operations have arisen in the process of organizing the enforcement of judgments and decisions of the Court. At the same time, the verification work makes the work of classifying files accurately, reducing work pressure and increasing the effectiveness of the THADS work. The verification skill of the CHV is one of the very basic skills in organizing the enforcement of judgments and decisions. The effectiveness and legality are clearly shown in the verification results for the CHV to process the files according to regulations.

Verifying the conditions for THADS of the person subject to THA is the legal basis for the CHV to apply subsequent measures to organize THADS such as entrusting, postponing, temporarily suspending, suspending THA, determining the lack of conditions for THA, applying security measures, measures to enforce THA... On the other hand, verifying the conditions for THADS

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