agree to apply the measure of compulsory exploitation of assets for THA. The enforcement officer issued a Decision on compulsory exploitation of assets against Mr. A to exploit the above house. To implement this Decision on compulsory exploitation, Mr. A signed a contract with Mr. C to rent the first floor of the house for 10 million VND/month. In the contract, there is a provision that Mr. C must pay the rent to the THADS agency to fulfill Mr. A's obligations to Ms. B. Mr. C's payment of rent to the THADS agency will terminate when Mr. C pays the full amount of 50 million VND. At that time, the enforcement officer must issue a decision to terminate the exploitation of assets against Mr. A.
The forced exploitation of assets is terminated when the exploitation of assets is in the following cases (Article 109 of the Law on Civil Judgment Enforcement):
a) Ineffective exploitation of assets or obstruction of the execution of the judgment;
b) The person subject to enforcement and the person exploiting the property do not comply with the requirements of the Enforcement Officer regarding the exploitation of the property;
c) The person who must pay the fine has completed the payment obligation and the payment costs;
d) There is a decision to suspend THA.
The enforcement officer shall issue a decision to terminate the exploitation of the property. In the case specified in Point a and b, Clause 1, Article 109, the enforcement officer shall have to carry out the seizure and disposal of the property for enforcement.
From the above analysis, it can be seen the complexity in applying this enforcement measure. When applying, the Enforcement Officer must regularly monitor the exploitation of the property to ensure that they do not damage the exploited property and must fully pay the exploitation fee for THA. In addition, the Enforcement Officer must be responsible for forcing the exploitation person to return the property when the enforcement measure for exploitation of the property is terminated. With so many responsibilities and taking place over a long period of time, the enforcement measure for exploitation cannot be applied when there are few guiding legal regulations.
2.4.2. Measures to collect money from the person subject to enforcement
This enforcement measure is stipulated in Article 80 of the Law on Enforcement of Civil Judgments. This measure is applied when it is discovered that the person subject to enforcement is holding money and there is a basis to determine that it is the money of the person subject to enforcement, the enforcement officer shall issue a decision on enforcement and make a record of money collection and issue a receipt to the person subject to enforcement.
The Law on Enforcement of Judgments does not stipulate that the enforcement officer has the right to search the person subject to the judgment, so forcing the person subject to the judgment to hand over money is very difficult. On the other hand, it is not easy to prove that the money held by the person subject to the judgment belongs to them. The person subject to the judgment himself will declare that the money is being held, kept, or transferred to another person. It is for these reasons that the enforcement officer avoids applying this measure in practice.
2.4.3. Measures to seize money from business activities of the judgment debtor
The measure of compulsory confiscation of money from business activities has only been stipulated in Article 79 of the Law on Enforcement of Judgments : " In case the person subject to enforcement has income from business activities, the Enforcement Officer shall issue a decision to collect money from that person's business activities to enforce the judgment " [54] . This compulsory measure is a special type of compulsory deduction from the income of the person subject to enforcement. The difference is that this measure emphasizes that the source of the money to be enforced is from the business activities of the person subject to enforcement. The difference is that this measure emphasizes that the source of the money to be enforced is from the business activities of the person subject to enforcement.
Collection is carried out periodically every week, month, quarter or year depending on the nature of the business of the person subject to tax.
The condition for applying this measure is that the person subject to the judgment has income from business activities . When applying, the enforcement officer must leave a minimum amount of money for the business and living activities of the person subject to the judgment and his family.
To determine the minimum amount of money for business activities, the enforcement officer must base on the business results of the debtor on the books, documents and actual business situation of the debtor. The minimum amount of money left for living expenses must be based on the poverty line applicable to the locality where they live. To determine the minimum amount of money left for production and business activities, the enforcement officer must base on the nature of the business sector and profession; business assets (according to Article 13 of Decree 58/2009).
Having to leave a minimal amount of money for the living expenses of the person who has to pay the fine and his family leads to many possibilities:
- If the person subject to THA conducts many business activities or has many sources of income other than business activities, does he/she have to comply with this condition?
- Does the family of the person subject to the THA not live on the income from the business activities of the person subject to the THA have to comply with this condition?
The content of the new law simply means that the person who must pay tax has only one business activity and the person who must pay tax and their family (if any) will depend on this source of income.
In terms of application conditions, this measure is more favorable than the measure of deducting income of the person subject to THA, but complying with the above conditions is very difficult in practice, so the enforcement officer will avoid applying it.
Chapter 3
PROBLEMS
IN APPLYING COMPULSORY MEASURES TO ENFORCE THE OBLIGATION TO PAY MONEY AND MAKE SUGGESTIONS
3.1. PROBLEMS IN APPLYING COMPULSORY MEASURES TO ENFORCE THE OBLIGATION TO PAY MONEY
3.1.1. Legal problems in civil enforcement
With the promulgation of the Law on THADS and its guiding documents, many problems in the practice of THADS in general as well as THA enforcement activities have been resolved. However, due to the rapid development of society as well as the diversity and complexity of THADS activities, the promulgation of the Law on THADS and its guiding documents has continued to create problems that need to be resolved soon.
Specifically:
* Although the Law on THADS has many new regulations on compulsory THA procedures, because the law is only used to stipulate general work to be done, its application in practice is very difficult. We will see this clearly by studying a statistical table of records of a THA file that must implement compulsory measures of property seizure and auction as follows:
Statistical table of records of the THA execution file of judgment 85/2009/KDTM-ST dated May 5, 2009 by THA Decision No. 1244 dated August 21, 2009 of the Hanoi City THADS Department.
Table 3.1. Statistical table of execution file records
STT
Number, date | Name of document, paper | Number of pages | |
1 | 1224/21-8-2009 | Decision to grant pardon | 2 |
2 | 582/17-8-2009 | Application for THA | 2 |
3 | 3503/16-11-2007 | Power of Attorney | 1 |
4 | 85/5-5-2009 | First instance economic judgment | 5 |
5 | Copy of Credit Agreement | ||
6 | 1224/24-8-2009 | Voluntary notice | 2 |
7 | August 24, 2009 | Minutes of service | 2 |
8 | August 25, 2009 | Minutes of THA settlement | 2 |
9 | August 26, 2009 | Minutes of service | 2 |
10 | September 15, 2009 | Listing minutes | 2 |
11 | September 15, 2009 | Listing minutes | 2 |
12 | September 15, 2009 | Listing minutes | 2 |
13 | 1244/7-10-2009 | Notice of mortgaged property disposal | 1 |
14 | October 8, 2009 | Listing minutes | 2 |
15 | October 8, 2009 | Listing minutes | 2 |
16 | 10/9/2009 | Listing minutes | 2 |
17 | September 25, 2009 | Minutes of THA settlement | 2 |
18 | November 27, 2009 | Minutes of THA settlement | 2 |
19 | 323/7-1-2010 | Status check notice | 1 |
20 | 12/1/2010 | Status inspection report | 1 |
21 | 427/9-3-2010 | Official dispatch to Hanoi Real Estate Registration Office | 1 |
22 | March 23, 2010 | Minutes of work | 2 |
23 | 425/2-4-2010 | Official dispatch of Viet A Bank | 2 |
24 | 394/3-3-2010 | Official dispatch to the Business Registration Office | 1 |
25 | 44/26-4-2010 | Official dispatch to the Business Registration Office | 2 |
26 | 642/5-4-2010 | Official dispatch to Dong Da Tax Department | 1 |
27 | 1758/2-6-2010 | Official dispatch of Dong Da Tax Department + Attached documents | 12 |
28 | 5/5/2010 | Minutes of THA settlement | 4 |
29 | 5/5/2010 | THA Verification Report | 2 |
30 | 815/2-6-2010 | Official dispatch of Viet A Bank | 1 |
31 | 50/24-6-2010 | Decision to seize assets | 1 |
32 | 1151/24-6-2010 | Notice of compulsory execution | 1 |
33 | 1150/24-6-2010 | Enforcement plan | 5 |
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Number, date | Name of document, paper | Number of pages | |
1149/24-6-2010 | THA coordination letter | 1 | |
35 | June 24, 2010 | Minutes of service | 2 |
36 | June 28, 2010 | Listing minutes | 2 |
37 | June 28, 2010 | Listing minutes | 2 |
38 | June 28, 2010 | Listing minutes | 2 |
39 | June 28, 2010 | Proposal for seizure force | 1 |
40 | 7/2/2010 | Minutes of attachment | 4 |
41 | 7/2/2010 | Minutes of property custody | 3 |
42 | 7/2/2010 | Absence record | 2 |
43 | 1301/13-7-2010 | Notice of property seizure | 1 |
44 | July 19, 2010 | Payment request | 3 |
45 | 400/2-7-2010 | Payment voucher | 1 |
46 | 1615/6-7-2010 | Receipt | 1 |
47 | 182/26-7-2010 | Official dispatch of Viet A Bank | 1 |
48 | 1424/29-7-2010 | Official dispatch to Nhan Thanh Company | 1 |
49 | July 29, 2010 | Receipt of application | 1 |
50 | 155/6-8-2010 | Valuation contract | 3 |
51 | 155/16-8-2010 | Valuation certificate | 17 |
52 | 1094/18-8-2010 | Notice of selection of auction organization | 2 |
53 | 325/25-8-2010 | Official dispatch of Viet A Bank | 1 |
54 | 1157/26-8-2010 | Official dispatch to Hong Ha Auction Company | 1 |
55 | August 26, 2010 | File delivery receipt | 1 |
56 | 84/1-9-2010 | Property Auction Contract | 5 |
57 | Hong Ha Company Profile | 1 book | |
58 | 195/6-9-2010 | Official dispatch of Hong Ha Company | 1 |
59 | 84/6-9-2010 | Auction Notice | 1 |
60 | 03/6-9-2010 | Notice of sale of seized assets | 1 |
61 | September 7, 2010 | Copy of listing minutes | 1 |
62 | September 7, 2010 | Copy of listing minutes | 1 |
63 | September 7, 2010 | Copy of listing minutes | 1 |
64 | 14589/1-9-2010 | Copy of newspaper invoice | 1 |
65 | September 9, 2010 | Newspaper published auction notice | 1 |
66 | September 6, 2010 | Newspaper published auction notice | 1 |
67 | 201/14-10-2010 | Official dispatch of Hong Ha Company | 1 |
68 | 1224/18-10-2010 | Notice of unsuccessful auction | 1 |
69 | 479/26-10-2010 | Official dispatch of Viet A Bank | 1 |
70 | 03/1-11-2010 | Decision to reduce price for auction | 1 |
STT
Number, date | Name of document, paper | Number of pages | |
71 | 1224/2-11-2010 | Official dispatch to Hong Ha Company | 1 |
72 | 10/1-11-2010 | Contract appendix | 2 |
73 | 84.2/16-11-2010 | Auction Notice | 1 |
74 | November 17, 2010 | Minutes of THA settlement | 2 |
75 | 170/22-11-2010 | Official dispatch of Hong Ha Company | 1 |
76 | November 16, 2010 | Listing minutes | 1 |
77 | November 16, 2010 | Listing minutes | 1 |
78 | November 16, 2010 | Listing minutes | 1 |
79 | 243/16-11-2010 | Newspaper invoice | 1 |
80 | November 20, 2010 | Newspaper published auction notice | 1 |
81 | November 23, 2010 | Newspaper published auction notice | 1 |
82 | 177/20-12-2010 | Official dispatch of Hong Ha Company | 1 |
83 | List of customers registered to buy auction | 1 | |
84 | 375/21-12-2010 | Auction Notice | 1 |
85 | December 22, 2010 | Minutes of THA settlement | 1 |
86 | December 24, 2010 | Minutes of property auction | 3 |
87 | December 24, 2010 | Asset purchase record | 4 |
88 | 181/28-12-2010 | Official dispatch of Hong Ha Company | 1 |
89 | 396/28-12-2010 | Notice of voluntary surrender of assets | 2 |
90 | December 28, 2010 | Minutes of service | 2 |
91 | 5/1/2011 | Minutes of voluntary inspection | 5 |
92 | 5/1/2011 | presentation | 1 |
93 | 514/17-2-2011 | Notice of delivery of auctioned assets | 1 |
94 | February 18, 2011 | Listing minutes | 1 |
95 | February 18, 2011 | Listing minutes | 1 |
96 | January 22, 2011 | Voluntary inspection report | 4 |
97 | 210/24-12-2011 | Official dispatch of Viet A Bank | 1 |
98 | March 1, 2011 | Minutes of THA settlement | 2 |
99 | February 22, 2011 | application | 1 |
100 | March 1, 2011 | Rental property inspection report | 3 |
101 | 4/3/2011 | Rental Agreement | 3 |
102 | March 7, 2011 | Minutes of the preparatory meeting for enforcement | 5 |
103 | 16/8-3-2011 | Decision on compulsory delivery of property | 1 |
104 | 603/8-3-2011 | Notice of property delivery | 1 |
105 | 604/8-3-2011 | Notice of enforcement | 1 |
106 | 593/8-3-2011 | Plan for compulsory delivery of assets | 6 |
107 | 597/8-3-2011 | Official dispatch to Hanoi city police | 2 |
STT
Number, date | Name of document, paper | Number of pages | |
108 | 598/8-3-2011 | Coordination letter | 2 |
109 | 599/8-3-2011 | Official dispatch to Thanh Tri Electricity | 1 |
110 | March 10, 2011 | Listing minutes | 2 |
111 | March 10, 2011 | Listing minutes | 2 |
112 | March 10, 2011 | Listing minutes | 1 |
113 | March 10, 2011 | Minutes of work | 2 |
114 | 37/9-3-2011 | Protection Plan Enforcement | 6 |
115 | March 15, 2011 | Minutes of THA settlement | 2 |
116 | March 16, 2011 | Minutes of handover of auctioned land and houses | 5 |
117 | March 16, 2011 | Application to the Department of Natural Resources and Environment, Hanoi | 1 |
118 | 732/16-3-2011 | Official dispatch to Hanoi city police | 1 |
119 | 408/18-3-2011 | Official dispatch of Viet A Bank | 1 |
120 | 776/22-3-2011 | THA Notice | 1 |
121 | March 28, 2011 | Minutes of work | 2 |
122 | March 28, 2011 | Power of Attorney | 1 |
123 | 440/29-3-2011 | Official dispatch of Viet A Bank | 1 |
124 | March 18, 2011 | Transfer order number 470 | 1 |
125 | List of funds distribution for THA | 1 | |
126 | 64/30-3-2011 | Decision on THA fee collection | 1 |
127 | 6155/30-3-2011 | Receipt of payment | 1 |
128 | 869/30-3-2011 | Receipt | 1 |
129 | 215/30-3-2011 | Money transfer letter | 2 |
130 | March 30, 2011 | Payment authorization | 1 |
131 | 229/01-4-2011 | Money transfer letter | 1 |
132 | April 13, 2011 | Payment authorization | 1 |
133 | 33931/29-3-2011 | Invoice for payment of valuation fee | 1 |
134 | March 29, 2011 | Contract liquidation minutes | 2 |
135 | 230/01-4-2011 | Money transfer letter | 2 |
136 | April 13, 2011 | Payment authorization | 1 |
137 | March 31, 2011 | Contract liquidation minutes | 2 |
138 | 67272/30-3-2011 | Auction Service Invoice | 1 |
139 | April 1, 2011 | Minutes of handover of THA asset documents | 1 |
140 | March 30, 2011 | Proposal for cash disbursement | 1 |
141 | 122/31-3-2011 | Payment voucher | 1 |
142 | Copy of the applicant's identity card | 2 | |
143 | Detailed comparison report of THA results | 2 |
STT
Source : [32].