+ There are cases where the Enforcement Officer directly sends an invitation to creditors with debt collection requests to come to the headquarters of the enforcement agency to compare debts, but there are cases where the Enforcement Officer is not familiar with the job, so he signs a summons and the Court officer sends a summons to the creditors and debtors to come to the enforcement agency to compare debts and thus the debt comparison record is made by the Court.
+ The enforcement officer is not active and proactive in performing the following tasks: making a list of creditors, a list of debtors, making a list of assets, checking and supervising the business activities of enterprises during the bankruptcy proceedings as well as implementing other decisions of the Judge, leading to ineffective and prolonged bankruptcy settlement.
+ The implementation of supervision and inspection of the use of assets of enterprises and cooperatives (Article 30, Bankruptcy Law 2004); the implementation of the right to request the Court to issue a decision to suspend the performance of a contract if it is considered that the suspension of the performance of a contract that is in effect and is being performed or has not been performed will be more beneficial to the enterprise (Article 45, Bankruptcy Law 2004)... by the Enforcement Officer are all confused and inaccurate.
2.4.3. Lack of binding responsibility of the Executor and the Asset Management and Liquidation Team during operation
Article 32 of Decree 67 stipulates that the Asset Management and Liquidation Team is responsible for compensating for damages in cases of “making an asset list that is not true to the actual situation; making a false list of creditors and debtors; failing to detect and not requesting the judge to issue a decision to recover assets that have been sold or transferred illegally as prescribed in Clause 1, Article 43 of the Bankruptcy Law”. It is thought that binding responsibility is necessary, but the above regulations are completely unfeasible when there is no mechanism to ensure the performance of duties and powers of the Executor and the Asset Management and Liquidation Team. Members of the Asset Management and Liquidation Team do not have sufficient basis and conditions to determine the above information. Everything depends on the documents and information provided by the enterprise. If there is no specialized intermediary organization such as an auditing agency or an agency
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If the valuation authority does not perform the valuation, the activities of the Team will not meet the requirements of the Bankruptcy Law and related documents.
2.4.4. Regulations on coordination between the Asset Management and Liquidation Team and Judges and Enforcement Officers are unclear.
When conducting bankruptcy proceedings, the duties and powers of the Asset Management and Liquidation Team are very important. Only when the Asset Management and Liquidation Team's work is going smoothly will the Judge organize a Creditors' Conference to consider and issue a decision to restore business operations or to liquidate the assets of the enterprise or cooperative in a timely, accurate and legal manner. In practice in localities, due to the lack of coordination between the Judge and the Enforcement Officer, the implementation is not really good, not unified, and there are many problems.
Firstly , according to the provisions of the Bankruptcy Law, the Asset Liquidation Management Team consists of: an enforcement officer; a court officer; a creditor representative; a legal representative of the enterprise or cooperative subject to bankruptcy proceedings. If necessary, there are representatives of the trade union and employees. The Asset Liquidation Management Team operates under the direction of the Head of the Asset Liquidation Management Team and is supervised by the Judge.
Looking at this provision, we can see that its practicality is very limited. Judges, court officials, and enforcement officers have a lot of work to do; experience shows that in localities where there are many bankruptcy cases brought to the court for settlement, there are also many civil, commercial, and criminal disputes in that locality. The above officials do not just pursue a bankruptcy settlement that lasts for years when the pressure of many other jobs is weighing heavily on them, so bankruptcy settlement, although it cannot be taken lightly, is not considered urgent. Other members such as representatives of creditors, enterprises, cooperatives subject to bankruptcy proceedings, union representatives, and workers are even more limited because they also have to worry about their daily lives. Ultimately, the progress of bankruptcy depends mainly on the activities of the head of the asset liquidation management team, who is the enforcement officer.
According to the provisions of Article 10 and Article 11 of the Bankruptcy Law, the asset liquidation management team and the team leader are responsible for implementing the decisions of the Judge and are legally responsible for the performance of their duties and powers. Article 21 of Decree No. 67/2006/ND-CP dated July 11, 2006 of the Government stipulates: "The head of the asset liquidation management team still works professionally at the Enforcement Agency and is professionally responsible to the head of the Enforcement Agency, and is responsible for all activities of the asset liquidation management team before the judge". There is no management constraint between the Judge and the head of the asset liquidation management team, so the judge's direction is very difficult, meaning that there will be a situation where you say, you say, whether I do it or not is my right. In short, the provisions of the current Bankruptcy Law make it difficult for those responsible for handling bankruptcy work, including judges and asset liquidation management teams, to devote themselves wholeheartedly to bankruptcy work. It is worth noting that there are cases where judges request the head of the asset liquidation management team to perform a specific task, but the head of the asset liquidation management team cannot do it because the head of the enforcement office, who is the direct leader, does not agree to let him do it. The reason is: there are too many other more necessary and urgent tasks. There are few tasks, but the resolution is prolonged. In some cases, the liquidation has been prolonged for more than 2 years and the asset liquidation has not yet been completed.
Second , according to the provisions of Clause 6, Article 20 of Decree 67/2006/ND-CP, the Head of the Asset Management and Liquidation Team has the right to use the Court's seal in the process of managing and operating the Team's activities. In reality, this provision is not feasible. In his/her activities, the Enforcement Officer can only use the seal of the Enforcement Agency because among the members of the Team, the Enforcement Officer is a person of the enforcement agency appointed according to the provisions of law and the signature of the Enforcement Officer is only guaranteed at the Enforcement Agency. On the other hand, Article 20 also stipulates that the Head of the Asset Management and Liquidation Team is stamped with the Court's seal and the enforcement agency's seal, but does not specify which types of documents will be stamped with the Court's seal and which documents will be stamped with the enforcement agency's seal?
In addition to the difficulties in applying legal regulations to the operations of the Asset Management and Liquidation Team, the relationship between the Asset Management and Liquidation Team and the Enforcement Officer - as Team Leader - still faces many difficulties that need to be resolved. In reality, the results of the operations of the Asset Management and Liquidation Team are used to serve the activities of resolving bankruptcy declaration requests at the Court. However, in the event of a decision to open asset liquidation proceedings, the results of the Team's operations are used to serve the stage of civil judgment enforcement. Therefore, how will the responsibility for managing records be determined in each stage? In reality, the relationship between the Enforcement Officer as Team Leader and the Judge in resolving enterprise bankruptcy records is still not well coordinated. The dossier for opening procedures, statistical information on creditors, debtors, and declaration of assets of the enterprise are all provided to the Court, while the Enforcement Officer is responsible for managing the operations of the Asset Management and Liquidation Team, making a list of creditors and debtors, reconciling debts, checking the assets of the enterprise... but the source of information and documents is completely dependent on the Court. In some cases, the Asset Management and Liquidation Team has been established for a long time but the information that the enterprise is required to provide to the Court according to the provisions of Article 50 of the Bankruptcy Law has not yet been implemented.
Third , the Court representative participating in the Asset Management and Liquidation Team is usually a secretary. The activities of this personnel not only depend entirely on the activities of the Enforcement Officer but also depend on the duties of the Secretary at the Court, so there is no independence. The Asset Management and Liquidation Team operates under the responsibility of the Enforcement Officer of the enforcement agency as the team leader throughout the process from when the Judge issues a decision to open bankruptcy proceedings until the completion of the liquidation of the assets of the bankrupt enterprise. The Bankruptcy Law also stipulates that the Enforcement Officer is responsible for reporting and is responsible to the Judge for the activities of the Asset Management and Liquidation Team. However, according to current regulations, the Enforcement Officer is the person assigned to organize the enforcement of the Court's effective judgments and decisions, and the enforcement activities are completely independent from the trial activities. Therefore, the failure to promptly issue documents guiding the coordination regulations
The coordination between the Civil Enforcement Agency and the Court, the operating regulations of the Asset Management and Liquidation Team will prolong the current poor coordination.
2.4.5. Regarding the working regime and operating documents of the Asset Management and Liquidation Team
Because the law does not have clear regulations on the working regime of the Asset Management and Liquidation Team, in practice, each Team Leader works according to a different regime. Some teams do it themselves, have preliminary results, then meet to notify other members of the team. Some Enforcement Officers call the Court Secretary to work at the headquarters of the enforcement agency to make a record together. There are also no instructions on the form and content of debt reconciliation and verification. Therefore, it is recommended that there should be a unified general guidance form for debt reconciliation records.
According to Article 51 of the 2004 Law on Bankruptcy, within 60 days from the last date of publication of the Court's decision to open bankruptcy proceedings, creditors must send debt collection notices to the Court. So the question is, when the Court receives debt collection notices from creditors, must the Court send those debt collection notices to the Asset Management and Liquidation Team or must it send them through the enforcement agency? And send the original or a copy? These issues have not been clearly regulated, so in reality, there are cases where, when comparing debts, the Asset Management and Liquidation Team requires creditors to submit debt collection notices along with documents proving the debt collection. In my opinion, it is necessary to clearly stipulate that when working, the Asset Management and Liquidation Team has the right to request creditors to submit debt collection notices along with documents proving the debt collection.
In addition, the retention of documents and books related to the activities of the Asset Management and Liquidation Team is stipulated in Clause 4, Article 2 of Decree 67, accordingly, books related to the activities of the Asset Management and Liquidation Team are retained at the enforcement agency and the Court managed by the Head of the Asset Management and Liquidation Team. In case the enterprise is declared bankrupt and the Asset Management and Liquidation Team is dissolved, the records related to the activities of the Asset Management and Liquidation Team are retained at the People's Court that accepts the petition to open bankruptcy proceedings. Such a provision is unclear, leading to difficulty in determining which type is managed by the Court and which type is managed by the enforcement agency?
2.4.6. Regarding costs and remuneration for members of the Asset Management and Liquidation Team
According to the law, the Head and members of the Asset Management and Liquidation Team are entitled to remuneration according to the regulations of the Ministry of Finance, but up to now there has been no specific guidance document, so the practice in localities of paying remuneration to members of the Asset Management and Liquidation Team is also inconsistent. For some enterprises that have opened bankruptcy proceedings and still have cash funds, the Judge calculates the remuneration at 10,000 VND/day/person or an average working time of about 15 days/month (300,000 VND/month/person). In case there is no money left, no remuneration will be paid to members of the Asset Management and Liquidation Team. According to the author, to ensure uniform implementation, specific guidance is needed.
2.5. On the issue of recovering bankruptcy assets
Regarding this issue, LPS 2004 has not yet stipulated who will have the authority to resolve complaints about decisions to recover assets or resolve disputes related to recovered assets. The procedure for resolving complaints and disputes is also an open issue in LPS 2004. In addition, current law also lacks provisions on measures to ensure the enforcement of the Judge's decision to recover assets, as well as provisions allowing the Asset Management and Liquidation Team to apply coercive measures to individuals, organizations, and enterprises that do not comply with the Court's decision. Therefore, the enforcement of asset recovery decisions is very difficult and ineffective. The recovery of assets of enterprises in Hanoi City still faces many difficulties due to many different reasons:
Firstly , assets are often scattered in many different localities, while management is still weak, making verification very difficult, travel and transaction costs are high, while assets are degraded and lose value (In many cases, documents and proof papers are illegally dispersed and hidden). Currently, the Bankruptcy Law does not stipulate the authorization of asset recovery in cases where the assets of an enterprise are scattered in many places outside the locality where bankruptcy is being resolved. Therefore, when the assets of a bankrupt enterprise are scattered in many places, no one other than the Asset Management and Liquidation Team or the Judge must directly handle the case.
continue to collect, this leads to a situation where those entities have to travel back and forth to many places to execute, which is time-consuming, prolongs the case and increases unnecessary costs for bankruptcy settlement.
The Hanoi People's Court is handling the bankruptcy of Thanh Cong Garment Export Company, headquartered in Dong Da District, Hanoi. In addition to the assets at the head office, the company also has assets in Tay Ninh and Ho Chi Minh City. When handling the case, the Asset Management and Liquidation Team went directly to those localities to inventory the assets, but after completing the inventory, they did not know who would manage the assets.
Second , in some cases, when signing a contract to provide services to the city government, businesses were required to advance materials and labor, which would be repaid after a period of time. However, when the deadline came, the government did not pay and the businesses could not "sell" the "services" they had provided to compensate for their expenses. This is a type of property right that is difficult to recover during the bankruptcy process.
CHAPTER 3: DIRECTIONS AND SOLUTIONS TO ENHANCE THE ENFORCEMENT OF THE 2004 BANKRUPTCY LAW
I. Forecasting the trend of businesses declared bankrupt in Hanoi in the coming time
Forecasting bankruptcy trends, or in other words, forecasting the trend of businesses going bankrupt in the near future, is necessary to help authorities have the right direction in formulating policies for businesses.
1. Basis for forecasting
There are many factors that affect the bankruptcy of enterprises, but in this thesis, the author will consider the issue based on the analysis of two factors affecting the business activities of enterprises in the current period. These are:
Firstly, joining the WTO, Vietnamese enterprises in general and Hanoi enterprises in particular will have to face fierce competition right at home, the inevitable consequence of which is that more poor enterprises will go bankrupt.
It has been more than two years since Vietnam became an official member of the WTO (January 1, 2007). In addition to the opportunities that the WTO brings, we still have to face many challenges for Hanoi in particular and the whole country in general. The open market leads to increased competition, making it difficult for businesses, especially small and medium-sized businesses, to adapt. In addition, businesses have to face many problems such as: lack of skills and specialized knowledge in management, non-tariff trade barriers, language problems, other infrastructure problems such as roads, telecommunications, energy supply, standardization, compliance with regulations on labeling and origin, transparent legal framework for protection and reasonable legal assistance, etc. Difficulties in accessing capital from the formal financial sector. According to the Ministry of Planning and Investment, only 32.4% of enterprises have access to capital from the formal financial sector.