The limitation of the verification method through the declaration of the person subject to the judgment is that it depends on the will of the person subject to the judgment, meaning that if they want and are afraid, they will declare truthfully, if they are not afraid, do not want, they will not declare or declare dishonestly. Therefore, to control the will of the person subject to the judgment, forcing them to comply with the wishes of the person in power, there must be institutions to put pressure on their will. In Germany, the law controls the honesty of the information of the person subject to the judgment through penalties for the personal freedom of the person subject to the judgment such as imprisonment for a maximum period of 06 months [62]. In the US and Canada, the act of not complying with the request to provide information of the person subject to the judgment or the court's order to provide information is considered a crime and can be arrested for this act [93], [112]. In most other European countries (Austria, Denmark, Greece, Ireland, Portugal, Spain, Sweden, the UK), imprisonment (up to one or even two years) can be imposed on debtors [106, p.37]. In addition, in Germany, the penalty for debtors who are dishonest in declaring information about their assets includes the public publication of the debtor's asset declaration. According to German law, the debtor's asset declaration is entered in a public register, whether the debtor has sworn or not. This register is maintained at the local courts. In many local courts, these registers are maintained as electronic databases and the chambers of commerce and industry regularly receive copies (or even have access online). This affects the creditworthiness of the debtor [106, p.37].
In Vietnam, Decree No. 62/2015/ND-CP has laid the foundation for regulations on verification through declarations of the person subject to THA. Specifically, Clause 1, Article 9 of Decree No. 62/2015/ND-CP stipulates: When conducting verification, the CHV requires the person subject to THA to honestly declare and provide full information on assets, income, and THA conditions. The declaration must clearly state the type, amount of money, assets or property rights; cash, money in the account, money being lent or borrowed; estimated value and status of each type of asset; regular and irregular income, place of income payment; address and residence of the minor entrusted to another person for care; ability and conditions for performing THA obligations. The CHV must clearly state in the minutes of verification of THA conditions whether the person declares or does not declare assets, income, and THA conditions. In case the person subject to the THA fails to declare or is found to have made a dishonest declaration, depending on the severity of the violation, the CHV may impose a penalty or request a competent person to
The right to sanction administrative violations according to the provisions of law. And the level of sanction is stipulated in Decree No. 167/2017/ND-CP is 1,000,000-3,000,000 VND for the act of not declaring or making dishonest declaration and the person with the authority to sanction is the Director of the THADS Department. However, in reality, in the THA process, almost no person subject to THA voluntarily declares assets and no THADS agency has imposed administrative sanctions for this act of not declaring. It can be seen that Vietnamese law also raises the issue of collecting information on assets and income through the declaration of the person subject to THA, but the legal provisions are not deterrent enough and lack practicality when assigning the authority to sanction to the highest authority of the THADS agency system, leading to this provision being just a formality.
Thus, the verification method through the declaration of the person subject to the THA will only be effective when the competent authorities can control the honesty of the information of the person subject to the THA.
(ii) For verification method via register
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To better implement the 2003 Recommendation on Enforcement, the European Commission on the Effectiveness of Justice has issued a detailed guideline. The guideline sets out specific requirements for collecting information on persons subject to enforcement and their assets, with guidance on the right of access to information of the person subject to enforcement, the right of the enforcement authority to access information, the duty to provide information and data protection issues.
- Regarding the right to access information of the person subject to the enforcement, the guidelines require that: to ensure the right to full support for the proceedings, the person subject to the enforcement should be allowed access to public registers so that they can confirm the necessary information about the person subject to the enforcement, such as the identification of the person subject to the enforcement and his place of residence for the enforcement purposes and data accessible through public registers (e.g. land registers, court registers of companies…) in accordance with the freedom of information and data protection laws of the Member State.
- With regard to the right to access information by the tax authority, the guidelines require that: Member States should allow tax authorities to have prompt and preferably direct access to information on the assets of the debtor. Member States are encouraged to consider providing information on assets to the tax authority via the Internet through secure access, where possible. To prevent the dissipation of the assets of the debtor, Member States are encouraged to establish a single multi-source restricted access database on the assets of the debtor.
assets of the debtor (i.e. ownership of vehicles, real estate rights, debts, tax returns, etc.). Member States should provide databases with an acceptable level of confidentiality. Access by debtors to databases should be subject to careful control. Cooperation between different public and private agencies, in compliance with data protection laws, is essential to enable rapid access to multi-source information on the debtor’s assets.
- Regarding the duty to provide information, the guidance requires: all state agencies managing data with information necessary for effective THA should be obliged to provide information to THA agencies within the agreed time limit if that information is in accordance with data protection law.
- Regarding data protection, the guidelines require that: national laws on the protection of personal data should be carefully considered in cases where adjustments are required to enable effective THA procedures. THA authorities should be responsible for maintaining confidentiality when confidential or sensitive information comes to their attention during proceedings. In the event of a breach of this obligation, disciplinary measures should be applied, together with civil and criminal sanctions [100].
It can be seen that for the method of information through the register, the detailed instructions have set out the following requirements:
First, regarding the register, a multi-source database on the assets of the person subject to THA should be established;
Second, regarding the form of access, access should be allowed via the Internet; Third, regarding the method of access, direct access to information should be allowed;
Fourth, regarding access control to information systems, it is necessary to be subject to strict control;
Fifth, regarding the duty of providing information, all state agencies managing databases should be obliged to provide information to the THA agency;
Sixth, regarding data protection, there is a need for protection but also for the effectiveness of THA operations;
Seventh, the responsibility of the THA agencies when not ensuring the responsibility of information security.
These are requirements that help ensure the transparency of information about the assets of the person subject to THA through the registers. Although not all European countries
All of them have fulfilled the requirements as stated in the guidelines, but the reality of verification activities in Europe and some countries in the world has proven that the more requirements mentioned above are met, the more effective the verification of THA conditions will be. The lack of some requirements will reduce the effectiveness of the verification work. For example, in France, although France has built a unified information system on bank accounts, this information is not directly accessed by THA agencies but must go through the intermediary agency, FICOBA (the national registration agency for bank accounts). All requests are sent to the intermediary agency, causing this agency to be overloaded, and many information takes months to be answered [97, p.153].
In Germany and France, land registers are only managed at the municipal level [106, p.27]. This will limit the territorial limits when searching for information on land assets of the person subject to THA.
In China, an online investigation and control system has been established. This system enables the court to quickly find and promptly control various assets including real estate, deposits, ships, vehicles, securities, etc. of the person subject to the judgment. This is the reason why the judgment in China can be carried out even when the person subject to the judgment cannot provide clues about the assets of the person subject to the judgment [103, p.572].
The CHV of Tajikistan has the right to request tax authorities, banks and notaries to provide necessary information with commercial and banking secrets as well as information on notarial acts. Present business cards to enter the buildings of state agencies, enterprises, regardless of the form of ownership and at other locations and places of residence of the person subject to the tax and to inspect the property of the person subject to the tax [103, p.557]. This power of the CHV has brought about effectiveness to the work of tax and customs in Tajikistan.
(iii) For verification method through third party statement
As with the method of verification through the declaration of the debtor, verification through the declaration of a third party will only be transparent when the personal will of the third party can be controlled. Sufficiently deterrent legal responsibilities will be the basis for ensuring the honesty of the third party in providing truthful information about the assets of the debtor.
From the above analysis, it can be seen that the transparency of the information system on the assets of the person subject to THA has a great impact on the effectiveness of the verification work. Because
Therefore, building a transparent information system is one of the conditions to help improve the effectiveness of verifying THA conditions.
2.4.2. Professional qualifications and ethics of bailiffs, bailiffs, judges and court officials
Except for countries that choose the model of empowering the person being THA to actively verify, the remaining countries assign the verification task to the CHV/TPL/judge/court officer (hereinafter referred to as CHV). The professional qualifications and ethics of the CHV have a great impact on the effectiveness of THA in general and the verification of THADS conditions in particular.
Recognizing the importance of the professional and ethical qualifications of the CHV for the effectiveness of the THA activities, the 2003 Recommendation on THADS of the Council of Europe affirmed the principle that “In recruiting CHVs, consideration should be given to the ethical standards of the candidates, their legal knowledge and their training in relevant laws and procedures. At the end of the recruitment process, they should be required to take a test to assess their theoretical and practical knowledge” [98]. To better implement this principle, the European Commission's guidelines on the effectiveness of justice require that “Member States should only recognize CHVs if the candidates concerned have qualifications and training commensurate with the complexity of the tasks. The high quality of training of professionals is important for the delivery of justice and for increasing the confidence of citizens in the justice system. CHVs should also be subject to mandatory continuing education” [100]. The reality of THA activities has proven that the professional qualifications and professional ethics of the CHV greatly affect the effectiveness of THA work in general and the verification of THA conditions in particular. In Serbia, to work as a CHV, no special training or knowledge is required, and at the same time, low salaries and lack of motivation have led to the situation where CHVs cover up the behavior of concealing assets of people subject to THA [103, p.447]. This leads to the ineffectiveness of THA work in Serbia. In China, experts have assessed that low-quality and incompetent personnel in THA are one of the main reasons for the delay in THA activities. In Sweden, the THA agency is a part of the State administration, and senior officers will be qualified lawyers. In Sweden, the THA agency seems to operate very effectively due to the high professional qualifications of its staff and easy access to a wide range of public records related to people subject to THA [108, p.208].
In Vietnam, to be appointed as a primary CHV, a candidate must have graduated from a university with a major in law, have worked in the legal field for at least 03 years, have been trained in THADS profession and passed the primary CHV exam [75, Clause 2, Article 18]. From the above legal provisions, it can be seen that in recent times, the professional qualifications, conditions and standards of CHVs in Vietnam have been significantly improved. However, the quality of work of CHVs still does not meet the practical needs of the job. From the statistics of the General Department of THADS, it can be seen that there are still many violations of CHVs leading to disciplinary action. For example, in 2016, 96 cases were disciplined [12]. In 2017, 101 cases were disciplined [13]. According to the assessment of the General Department of THADS, one of the reasons leading to the problems and shortcomings in THADS is that the capacity, qualities and working skills of some officers are still limited, not meeting the requirements of the tasks in the new situation. Some officers have a low sense of responsibility and lack determination, leading to low work efficiency [14], [15].
The above analysis shows that the professional qualifications and professional ethics of CHV are closely related to the quality and effectiveness of THADS in general and the verification of THADS conditions in particular. Therefore, it is necessary to pay more attention to training and fostering CHV to improve professional qualifications on the one hand and to focus on cultivating professional ethics on the other hand. Moreover, the issue of professional ethics of CHV also needs to be strictly controlled.
2.4.3. Coordination of relevant agencies and organizations
In cases where the information system on the assets of the person subject to the enforcement is not a public system, and at the same time, the collection of information on the assets of the person subject to the enforcement is not through the declaration method of the person subject to the enforcement, the verification must be coordinated with the agency or organization holding information on the assets of the person subject to the enforcement. For the verification to be effective, there must be an effective enforcement coordination mechanism, so that the agencies holding the information are required to provide information to the competent person for verification. In Tajikistan, to enhance the effectiveness of enforcement work, other state agencies and organizations are obliged to support the CHV in ensuring enforcement [103, p.557]. Since September 2018, Uzbekistan has built a unified system of internal electronic interaction. The system provides for rapid information exchange between the THA Department and 18 state agencies, organizations and banks in searching for assets of the THA debtor [103, p.369]. This system has
help improve the effectiveness of THADS in Uzbekistan. In Vietnam, the law on THADS always focuses on the coordination of relevant agencies and organizations in the verification of THA conditions. Article 44 of the THADS Law stipulates the responsibility of agencies, organizations and individuals to provide information when requested by those with the right to verify, and also stipulates legal responsibility when violating the obligation to provide information. However, because the penalties prescribed by law are either unclear or do not ensure deterrence, the issue of coordination in verification work still has shortcomings and inadequacies. In the summary report of the THA sector, the General Department of THADS assessed that "Coordination between sectors and levels with THADS agencies in some cases, especially difficult, complicated and valuable cases, is not really effective" [15].
Thus, it can be seen that the coordination of relevant agencies and organizations is extremely important for the verification of THA conditions. In Vietnam, this issue is even more decisive, because the main verification method currently applied in Vietnam is through registration books or statements of third parties (providing information of third parties). Although Vietnamese law has laid the foundation for the verification method through the declaration of the person subject to THA (declaring assets when conducting verification), this provision has not been effective in practice and has not been implemented resolutely. Meanwhile, the registration books are mainly managed by a number of different agencies, depending on the type of assets of the person subject to THA, which have not been made public or accessed online. Therefore, for this verification method to be implemented effectively, it is necessary to build an effective and synchronous coordination relationship.
Chapter 2 Summary
Chapter 2 has built the theoretical foundation for verifying THADS conditions on the basis of approaching this as a stage of THADS activities. The purpose of verifying THADS conditions is to organize the enforcement of effective judgments and decisions. The results of verifying THADS conditions are decisive for the success of the THADS organization process.
Being essentially a “link” in the THADS activity, the subject of verifying the THADS conditions is closely linked to the subject of the THADS activity and is governed by the THADS organizational model. In addition, the legal value of effective judgments and decisions
The act also gives verification subjects different “powers” than other subjects and/or in other verification activities.
In addition, because the verification of the conditions for execution of judgments involves collecting information about the assets and conditions for execution of judgments of the person subject to execution, the collection of information depends on the person subject to execution and the entities managing information about the assets and conditions for execution of judgments of the person subject to execution. Therefore, the verification method is also built with differences in relation to the method of information management and the obligation to respect the judgments and decisions with effective enforcement of the relevant entities.
The law on THADS is essentially procedural law, so as a stage of the THA process, verifying THA conditions also requires procedural regulations to guide the activities of related entities.
Furthermore, verifying the conditions for THADS will affect the subject of information about the assets and personal status of the person subject to THA. These issues are related to the obligations of the person subject to THA, to the basic rights of the person subject to THA, which are ownership rights, and are also related to the right to enjoy the benefits recorded in the judgment and decision of the person subject to THA. This characteristic determines the contents that need to be verified and the scope of verification by the competent authority.
Finally, with the main content being the activity of collecting information about the assets of the person subject to THA, the transparency of information and management of information about assets; the professional qualifications and ethics of the information collector and the coordination and responsibility of the information manager will affect the effectiveness of the activity of verifying the conditions for THADS.
The above research contents will be the theoretical foundation for the thesis to assess the current status of laws and practical implementation of laws on verification of THADS conditions in Vietnam, thereby proposing solutions to improve the effectiveness of verification of THADS conditions.