Results of Applying Compulsory Measures to Enforce Payment Obligations in Hanoi City in 2009 and 2010

- Asset seizure;

- Deduct from the income of the person who must pay the fine.

- Deduct from the assets of the person subject to forgone judgment that are being held by another person.

These three measures of enforcement of payment obligations continue to be inherited and remain unchanged in the 1993 THADS Ordinance.

However, the three enforcement measures stipulated in the 1993 THADS Ordinance were not suitable for the rapid development of the socio-economy in the renovation period. This required amendments and supplements to the enforcement measures for payment obligations in the 2004 THADS Ordinance. Continuing to inherit the three enforcement measures mentioned above, the 2004 THADS Ordinance had the following fundamental amendments and supplements:

Firstly , the 2004 THADS Ordinance stipulates a new enforcement measure in Clause 3, Article 37: Freezing accounts and assets of the person subject to THA at banks, credit institutions, and state treasury.

Second , the 2004 THADS Ordinance stipulates the attachment and handling of assets of the person subject to THA held by a third party in the measure of attachment of assets instead of considering it as a form of coercive measure: Deducting from the assets of the person subject to THA held by another person.

Third , the 2004 THADS Ordinance stipulates that the measures: "Deducting from accounts, deducting from money, and recovering valuable papers of the judgment debtor" are separated and stand alone, not included in the measures of deducting from the assets of the judgment debtor that are being held by others.

The above fundamental amendments to the measures for enforcing payment obligations have improved the effectiveness of enforcing payment obligations in THADS activities. However, in practice, difficulties continue to arise due to the rapid development of the socio-economy, so amending and supplementing regulations related to enforcing payment obligations is an urgent requirement.

Therefore, the Law on THADS 2008 was passed by the 12th National Assembly on November 14, 2008 with many new and supplemented contents, including measures to enforce payment obligations.

Measures to enforce payment obligations as prescribed in Article 71 of the Law on Civil Judgment Enforcement include:

1. Deduct money from the account; collect and handle money and valuable papers of the person subject to THA.

2. Deduct from the income of the person subject to FORGIVENESS.

3. Seize and handle assets of the person subject to enforcement, including assets held by a third party.

4. Exploiting the assets of the person subject to FORGIVENESS.

Thus, the Law on THADS has on the one hand added a new measure of THADS enforcement: Exploiting the assets of the person subject to THA and at the same time eliminated the measure of account freezing as a measure of enforcement.

In short, along with the development of THADS law, measures to enforce payment obligations have also been increasingly improved to be more suitable to the realities of life.

Chapter 2

CURRENT STATUS OF APPLYING COMPULSORY MEASURES TO ENFORCE PAYMENT OBLIGATIONS IN ACTIVITIES

ENFORCEMENT OF CIVIL JUDGMENTS IN HANOI CITY

2.1. RESULTS OF APPLYING COMPULSORY MEASURES TO ENFORCE THE OBLIGATION TO PAY MONEY IN HANOI CITY IN 2009 AND 2010

To evaluate the effectiveness of the application of regulations on compulsory enforcement of payment obligations under the Law on Civil Judgment Enforcement in Hanoi, the author conducted statistics on the number of compulsory enforcement cases applied at the Hanoi Civil Judgment Enforcement Department and some district-level civil judgment enforcement units.

2.1.1. Results of applying compulsory measures to enforce payment obligations at the Civil Judgment Enforcement Department of Hanoi City

Table 2.1: Statistics of survey results on the actual application of payment enforcement measures by the Hanoi City Department of Civil Judgment Enforcement in 2009; 2010

STT

Coercive Measures	Year 2009 (job)	Year 2010 (job)
1	Deduction of money from the assets of the person subject to THA	15	12
2	Collecting money from the business activities of the person subject to the THA	0	0
3	Collect money from the person who must pay the fine	0	0
4	Collecting money from the executor held by a third party	0	0
5	Seize documents and sell valuable papers	1	0
6	Seizure, use and exploitation of intellectual property rights	0	0
7	Asset seizure and auction	28	30
8	Compulsory exploitation of assets to enforce judgments	0	0
	Total	44	42

Maybe you are interested!

Source : [31], [33].

Through the survey results, we can clearly see the advantages of the two enforcement measures: deducting money from the account of the person subject to enforcement and seizing assets. At the same time, it also affirms the effectiveness of the measure of deducting money from the account. In 2010, the measure of deducting money from the account alone applied by the enforcement officer of the Hanoi City Enforcement Agency collected over 35 billion VND.

2.1.2. Results of applying compulsory measures to enforce payment obligations at some district and county level units.

Table 2.2. Statistics of survey results on actual application

Measures to enforce payment obligations of some Hanoi City THADS Sub-Departments in 2009

(unit: work)

STT

Coercive measures	Long Bien District	Tay Ho District	Gia Lam District	Hoang Mai District
1	Deduction of money from the assets of the person subject to THA	1	0	0	2
2	Collect money from the business activities of the debtor sentence	0	0	0	0
3	Collect money from the person who is subject to execution of judgment	0	0	0	0
4	Collecting money from the executor held by a third party	0	1	0	0
5	Seize documents and sell valuable papers	0	0	0	0
6	Seizure, use and exploitation of intellectual property rights	0	0	0	0
7	Asset seizure and auction	2	0	0	0
8	Compulsory exploitation of property to enforce judgment	0	0	0	0
	Total	4	1	0	2

Source : [12], [13], [14], [15], [16], [17], [18], [19].

Table 2.3: Statistics of survey results on actual application

Measures to enforce payment obligations of some Hanoi City THADS Sub-Departments in 2010

(unit: work)

STT

Coercive measures	Long Bien District	Tay Ho District	Gia Lam District	Hoang Mai District
1	Deduction of money from the assets of the person subject to THA	5	2	1	2
2	Collecting money from the business activities of the judgment debtor	0	0	0	0
3	Collect money from the person who owes the execution the case is being held	0	0	0	0
4	Collecting money from the executor held by a third party	0	1	0	1
5	Seize documents and sell valuable papers	0	0	0	1
6	Seizure, use and exploitation of intellectual property rights	0	0	0	0
7	Seize and auction property that is material	2	0	1	2
8	Compulsory exploitation of assets to enforce judgments	0	0	0	0
	Total:	7	3	2	6

Source : [12], [13], [14], [15], [16], [17], [18], [19].

Through the summary table of survey results on the application of compulsory measures to enforce payment obligations in some district-level THADS units in Hanoi, the following conclusions can be made:

There are 03 enforcement measures that have not been applied in 02 years:

Delay in exploitation of assets for THA.

Seizure, use and exploitation of intellectual property rights.

Collect money from the business activities of the debtor.

The reason why the three coercive measures mentioned above are not applied is not because the need to apply them does not arise in reality, but because

The lack of legal regulations leads to avoidance of applying these measures by the enforcement officers.

The number of cases requiring enforcement measures compared to the total number of cases requiring enforcement is not large. For example, in 2010, Hoang Mai unit had to enforce 1,975 cases, but the total number of cases requiring enforcement was: 06 cases.

However, the role of enforcement should not be underestimated because of the small number of cases applying enforcement measures. At Hoang Mai unit in 2010, the total amount of money and value subject to enforcement was 18 billion, of which 01 case of compulsory seizure of valuable papers in the form of shares was enforced for 4 billion. On the other hand, the fact that enforcement is rarely applied proves the effectiveness of the application of voluntary enforcement measures by enforcement officers at these units. In particular, there is a unit such as the Ha Dong District Enforcement Office in 2010 that did not have to apply enforcement measures even though the number of cases to be enforced was 702 and 467 cases were completed.

The application of compulsory measures to enforce payment obligations is common in developed socio-economic areas. For example, in 2010, the Long Bien District Enforcement Office had to enforce 1,344 cases and enforce 07 cases, of which the Gia Lam District Enforcement Office had to enforce 950 cases and enforce 02 cases.

Through the survey, the application of compulsory measures to enforce payment obligations in Hanoi city only occurs mainly in civil, economic, and marriage and family cases, while in civil cases in criminal cases, it is usually only to handle the assets of the person subject to the judgment that have been seized by the investigation agency or the Court. The reason for the above phenomenon is that most of the people subject to the judgment who are serving a prison sentence do not have assets to apply compulsory measures.

In summary, in Hanoi, the number of cases requiring compulsory measures to enforce payment obligations is not common and accounts for a small proportion compared to the total number of cases eligible for enforcement. There are only a few compulsory measures.

Enforcement measures for payment obligations are frequently applied such as deduction of money from accounts and seizure and auction of assets. Other enforcement measures are rarely applied, and there are some measures that are not applied such as enforcement of asset exploitation for debt collection.

2.2. COMMONLY APPLIED MEASURES TO ENFORCE THE OBLIGATION TO PAY IN HANOI CITY

2.2.1. Measures to deduct money from the judgment debtor's account

2.2.1.1. Overview of measures to enforce deduction of money from the judgment debtor's account

This enforcement measure was first prescribed in the 2004 THADS Ordinance. Previously, this measure was prescribed in the 1989 THADS Ordinance and the 1993 THADS Ordinance with the enforcement measure of Deducting from the assets of the judgment debtor currently held by another person and the third party in this regulation when applying this measure is the bank.

This measure is stipulated in Article 76 of the Law on Enforcement of Judgments as follows: "The enforcement officer shall issue a decision to deduct money from the account of the person subject to enforcement. The amount deducted must not exceed the obligation to enforce the judgment and the enforcement costs" [54].

To ensure the implementation of enforcement measures, the Law on THADS clearly stipulates the responsibilities of the State Treasury, banks and other credit institutions to coordinate with the enforcement officer in Article 176 as follows:

1. Provide correct, complete and timely information and data on the judgment debtor's account as requested by the Enforcement Officer and civil judgment enforcement agency.

2. Strictly and promptly implement the request of the Enforcement Officer regarding account freezing, asset freezing; money deduction in

account; release of account freeze, release of property freeze of the judgment debtor.

3. Fully comply with other requests of the Enforcement Officer and civil enforcement agencies as prescribed by this Law [54].

However, in practical application, the Enforcement Officer must also use the provisions of Decree 70/2000/ND-CP dated November 21, 2000 of the Government on keeping secret, storing and providing information related to customers' deposits and assets to be able to apply this enforcement measure .

The priority of applying this measure comes from the fact that the procedure for applying this measure is quite simple, takes little time and often brings results immediately after issuing the Decision to deduct money from the account of the person subject to THA.

2.2.1.2. Practical application

As mentioned in Chapter 1, Hanoi is the second largest economic center in the country, so the development of the banking system and other credit institutions as well as the use of payment via accounts is very popular. On the other hand, as an important trading hub, businesses in Hanoi are quite common tax payers. For this reason, the measure of deducting money from accounts is quite popular. In fact, if the tax payer is a business or organization, this is the first priority measure to be applied. Through a survey in 2010, the Hanoi Tax Department applied this measure 12 times and the amount collected was 35 billion VND.

The difficulty in applying this measure in Hanoi is that there are too many banks in the area. Hanoi is the location of the headquarters and branches of all commercial banks in Vietnam and a large number of branches of foreign banks. Therefore, with a dense network of branches and transaction offices, the verification of accounts and available balances in the accounts of the debtors by the Enforcement Officer has encountered many difficulties. The year

Comment