Chương III Nghị định 08/2020/NĐ-CP: Văn phòng thừa phát lại

Chapter III

BAILIFF OFFICE

Article 17. Bailiff office

1. Bailiff offices are practicing organizations of bailiffs in which bailiffs conduct assigned tasks as per this Decree and relevant law provisions.

A bailiff office established by a bailiff shall be organized as a sole proprietorship. A bailiff office established by at least 2 bailiffs shall be organized as a partnership company.

2. Name of bailiff offices must include the phrase “Văn phòng Thừa phát lại” (Bailiff office) followed by a formal name. Selection of formal name and installation of signboards must conform to regulations and law without sharing or mixing up with other bailiff office in Vietnam and without violating history, culture, ethics, and traditions.

3. legal representatives of bailiff offices are directors of bailiff offices. Directors of bailiff offices must also be bailiff offices.

Bailiff offices may include partner bailiffs, bailiffs under employment contracts, and professional secretaries.

Professional secretaries shall assist bailiffs in legal affairs. Professional secretaries must satisfy eligibility under Clause 1 Article 6 hereof, have intermediate law degree or higher, and not fall under any of the cases under Article 11 hereof.

4. Bailiff offices shall have their own head offices, seals, and accounts and operate on a financial autonomy basis.

Seals of bailiff offices must not bear the national emblem. Bailiff offices can forge and use seals after obtaining license to operate. Application for seal registration, management, and use of bailiff offices shall conform to regulations and law on seals.

Finance of bailiff offices shall conform to financial regulations applicable to respective form of enterprises as per the law.

5. Bailiff offices are not allowed to open branches, representatives, facilities, trade locations outside their head offices; conduct manufacturing, trading, service activities beyond the scope of bailiffs as per this Decree.

Article18. Rights and obligations of bailiff office

1. Bailiff offices have the rights to:

a) Enter into contracts with bailiffs and professional secretaries working for the offices;

b) Collect, manage, and use expenses for conducting bailiff tasks as per the law;

c) Enter into contracts, agreements with solicitors as per this Decree;

d) Exercise other rights as per this Decree and relevant law provisions.

2. Bailiff offices have the obligations to:

a) Manage bailiffs and professional secretaries in terms of compliance with the law and code of professional ethics of bailiffs;

b) Adhere to regulations and law on employment, tax, finance, report, and statistical data;

c) Publicize working hours, procedures, expenditure on bailiff work, and rules of reception at bailiff office;

d) Collect fees agreed upon with solicitors;

dd) Purchase professional liability insurance for affiliated bailiffs; pay damages (if any) as per the law;

e) Admit, facilitate, and manage apprentices during apprenticeship period;

g) Enable affiliated bailiffs to participate in training and refresher training;

h) Comply with request of competent authorities regarding report, inspection, examination, and provision of information on service contracts and professional dossiers of bailiffs;

i) Produce, manage, use, and store documents, professional dossiers as per the law;

k) Provide uniform regulated by Ministry of Justice to affiliated bailiffs;

l) Carry out other obligations according to this Decree and relevant law provisions.

Article 19. Tasks and powers of directors of bailiff offices

1. Organize implementation of rights and powers of bailiff offices in accordance with Article 18 hereof.

2. In civil enforcement, directors of bailiff offices have the tasks and powers to:

a) Request directors of Sub-departments of Civil judgment Enforcement where bailiff offices are located to issue decisions on judgment enforcement in accordance with Article 55 hereof and civil enforcement laws;

b) Request authorities, organizations, and individuals to cooperate in verifying judgment enforcement conditions and organize judgment enforcement;

c) Notify persons who have the power to file an appeal upon discovering violations of the law in legally effective judgments, decisions;

d) Respond to appeal request and propositions of competent People’s Procuracy; request competent authority to take disciplinary actions, impose administrative penalties, or initiate criminal prosecution against offenders as per the law.

3. Other tasks and powers according to this Decree and relevant laws.

Article 20. Communication and report

1. Bailiff offices are responsible for submitting 6-monthly and annual reports on their organization and operation to Departments of Justice where the bailiff offices are based.

On an annual basis, Departments of Justice are responsible for submitting reports on bailiff organization and operation in their provinces and cities to People’s Committees of provinces and cities (hereinafter referred to as “provincial People’s Committees”).

Bailiff offices shall produce irregular reports at request of Departments of Justice and Ministry of Justice; Departments of Justice shall produce irregular reports at request of provincial People’s Committees and Ministry of Justice.

2. Bailiff offices shall produce reports in order to serve inspection, examination, and supervision regarding operation, financial management, and tax as per the law.

3. Minister of Justice shall elaborate documents, forms, and report regulations regarding organization and operation of bailiff.

Article 21. Establishment of bailiff office

1. The establishment of a bailiff office must rely on the following criteria:

a) Socio-economic conditions of the district where the bailiff office is expected to be established;

b) Number of cases accepted by court or civil enforcement authority of the district where the bailiff office is expected to be established;

c) Population density and demands of inhabitants of the district where the bailiff office is expected to be established;

d) No more than 2 bailiff offices in a district-level administrative division; no more than 1 bailiff office in a district.

2. Based on the criteria under Clause 1 of this Article, Departments of Justice shall cooperate with departments, local authorities in submitting Scheme for local bailiff office development to provincial People’s Committees for approval.

3. Based on the approved Scheme for bailiff office development, provincial People’s Committees shall issue notice of establishment of bailiff offices. Based on the aforementioned notice of provincial People’s Committees, bailiffs who wish to establish bailiff offices shall submit application for establishment of bailiff offices to local Departments of Justice in writing or via post service. Application consists of:

a) Application for establishment of bailiff office using form regulated by Minister of Justice;

b) Presentation regarding organization, name, personnel, head office location, facility conditions, and plans for implementation;

c) Certified true copies or copies accompanied by original copies of decision on assignment or reassignment of bailiff;

4. Within 20 days from the date on which adequate applications are received, Departments of Justice shall request provincial People’s Committees to consider and issue decision permitting the establishment of bailiff offices; provide written response and state reason in case of refusal.

Within 20 days from the date on which request of Departments of Justice is received, provincial People’s Committees shall consider and issue decision permitting the establishment of bailiff offices; provide written response and state reason in case of refusal.

5. Applicants for establishment of bailiff offices shall submit fees for appraising conditions for establishment and operation of bailiff offices in accordance with regulations and law on fees and charges.

Article 22. Registration for operation of bailiff office

1. Within 30 days from the date on which decisions permitting bailiff office establishment are received, bailiff offices must register for operation at Departments of Justice which grant permission for establishment.

Details of registration includes: Name and address of bailiff head office; full name of directors of bailiff offices; list of partnership bailiffs and list of bailiffs under employment contracts (if any) of bailiff offices.

2. Bailiff offices shall submit registration for operation to Departments of Justice in person or via post service. Registration consists of: Application using form regulated by Minister of Justice; certified true copies or copies accompanied by original copies of decisions permitting establishment of bailiff office; documents proving fulfillment of eligibility under Clauses 3 and 4 Article 17 hereof and application for operation of bailiffs in accordance with Clause 1 Article 15 hereof.

3. Within 10 days from the date on which adequate registration is received, Departments of Justice shall issue license to operate to bailiff offices; provide written response and state reason in case of refusal.

4. Bailiff offices can operate with the date on which Departments of Justice issues license to operate.

Article 23. Notice of bailiff office registration

Within 7 working days from the date on which license to operate is issued to bailiff office, Department of Justice must inform Department of Civil judgment Enforcement, provincial People’s Court, provincial People’s Procuracy, tax authority, statistical data authority, police authority, Sub-department of Civil judgment Enforcement, People’s Court, People’s Procuracy, People’s Committee of district, People’s Committee of commune where bailiff office is located, and Ministry of Justice in writing and upload on website of Department of Justice.

Article 24. Revision of bailiff office registration

1. As soon as any of the registration details under Clause 1 Article 22 hereof change, the bailiff office must register the changes at Department of Justice where they registered for operation.

Bailiff office shall submit application to Department of Justice in person or via post service. Application consists of: Application for revision to bailiff registration using form regulated by the Minister of Justice; documents proving the changes and original copies of license to operate.

2. In case directors of partnership bailiff offices are temporarily suspended from practicing, subject to decision on removal, deceased, or unable to act as legal representatives of bailiff offices due to other reasons, bailiff offices must revise registration regarding directors of the bailiff offices at Departments of Justice according to Clause 1 of this Article.

3. Within 07 working days from the date on which adequate registration is received, Departments of Justice shall issue revised license to operate to bailiff offices; provide written response and state reason in case of refusal.

For cases under Clause 2 of this Article, the revised license to operate shall be issued to bailiff offices within 3 working days from the date on which adequate application is received.

4. Within 7 working days from the date on which revised license to operate is issued to bailiff offices, Departments of Justice are responsible for notifying authorities under Article 23 hereof.

Article 25. Changing general partners

1. General partner status of a bailiff office shall be terminated when:

a) A general partner bailiff wishes so and other general partner bailiff agrees;

b) A general partner bailiff is removed, having reduced civil capacity, incapacitated, having cognitive and/or behavioral difficulty as per the Civil Code. In this case, assets of the bailiff at the bailiff office shall be returned to the bailiff after deducting liabilities of the bailiff;

c) A general partner bailiff is deceased or declared deceased by the court, heir of the bailiff shall receive the assets of the bailiff from which liabilities of the bailiff have been deducted. The heir can become a general partner bailiff of the bailiff office if he/she is eligible for bailiff profession and agreed by other general partner bailiffs.

2. A bailiff office has the right to accept new bailiffs if other general partner bailiffs also agree.

3. When changing general partner bailiffs as mentioned under Clauses 1 and 2 of this Article, bailiff offices must apply for revised registration in accordance with Article 24 hereof.

In case general partner status is terminated according to Clause 1 of this Article and bailiff office is unable to accept new general partner bailiffs to maintain method of operation, within 6 months from the date on which general partner status is terminated, the bailiff office must convert from a partnership company to a sole proprietorship in accordance with Article 26 hereof.

Article 26. Conversion of bailiff office model

1. Bailiff offices that wish to convert from a sole proprietorship to a partnership and vice versa shall submit application to Departments of Justice where they register for operation in person or via post service. Application consists of:

a) Application for business structure conversion using form regulated by Ministry of Justice;

b) Presentation regarding conversion of business structure, which state conversion methods, organization and operation of bailiff office up to the date of application, expected organization, name, head office location, personnel, and facilities;

c) Certified true copies or copies accompanied by original copies of decision on assignment or reassignment of bailiff;

d) Original copies of decision permitting establishment of bailiff office.

2. Within 15 days from the date on which adequate application is received, Departments of Justice are responsible for appraising and requesting provincial People’s Committees to consider and decide to permit conversion of business structure of bailiff office; provide written response and state reason in case of refusal.

3. Within 15 days from the date on which request of Departments of Justice is received, provincial People’s Committees shall consider and issue decision permitting the establishment of bailiff offices; provide written response and state reason in case of refusal.

4. Within 15 days from the date on which decision permitting business structure conversion is received, bailiff office must register for operation at Departments of Justice that permit the conversion. Bailiff offices shall submit registration for operation to Departments of Justice in person or via post service. Registration consists of: Application using form regulated by Minister of Justice; certified true copies or copies accompanied by original copies of decision permitting business structure conversion and documents proving eligibility for operation of bailiff office in accordance with Point b Clause 1 of this Article.

Within 07 working days from the date on which adequate registration is received, Departments of Justice shall issue revised license to operate to bailiff offices; provide written response and state reason in case of refusal.

5. Within 7 working days from the date on which license to operate is issued to bailiff offices, Departments of Justice are responsible for notifying authorities under Article 23 hereof.

6. Bailiff offices are allowed to convert business structure from the date on which Departments of Justice issue license to operate while inheriting all rights, obligations, and assuming responsibilities for storing all documents of the previous bailiff offices.

Article 27. Acquisition and merger of bailiff offices

1. 2 or more bailiff offices located in the same province can be merged into a new bailiff office by transferring all assets, rights, obligations, and benefits to the new bailiff office while terminating all merged bailiff offices.

2. One or multiple bailiff offices can be acquired by another bailiff office located in the same province by transferring all assets, rights, obligations, and benefits to the acquiring bailiff office while terminating all acquired bailiff offices.

3. Merged or acquired bailiff offices according to Clause 1 and Clause 2 of this Article shall submit application to Departments of Justice where they are located. Application consists of:

a) Application for merger or acquisition of bailiff office using form regulated by Minister of Justice;

b) Merger or acquisition contract which contains: Name and address of merged or acquired bailiff offices; time of merger, acquisition; solutions for disposal of assets and use of employees of bailiff offices; the inheritance of rights, obligations, and benefits of bailiff offices and other relevant details;

c) Audited tax declaration and financial statement in the closest year of bailiff offices up the date of application for merger or acquisition;

d) Inventory records of professional documents and inventory records of available assets of merged, acquired bailiff offices;

dd) List of general partner bailiffs and bailiffs under employment contracts (if any) in bailiff offices;

e) Original copies of Decision permitting establishment and License to operate of bailiff offices.

Within 15 days from the date on which adequate application is received, Departments of Justice shall request provincial People’s Committees to consider and issue decision permitting the merger, acquisition of bailiff offices; provide written response and state reason in case of refusal.

Within 15 days from the date on which adequate application is received, provincial People’s Committees shall consider and issue decision permitting the merger, acquisition of bailiff offices; provide written response and state reason in case of refusal.

4. Within 15 days from the date on which decision permitting merger, acquisition of bailiff offices is received, merged bailiff offices must register operation, acquiring bailiff offices must register changes to operation at Departments of Justice which grant permission for merger and acquisition. Bailiff offices shall submit registration for operation to Departments of Justice in person or via post service. Registration consists of: Registration or application for revision using form regulated by Minister of Justice; Decision permitting merger, acquisition; documents proving head office of bailiff offices, certified true copies or copies accompanied by original copies of decision on assignment, reassignment of bailiffs in bailiff offices.

Within 07 working days from the date on which adequate registration is received, Departments of Justice shall issue license to operate to merged or acquiring bailiff offices; provide written response and state reason in case of refusal.

5. Within 7 working days from the date on which license to operate is issued to bailiff offices, Departments of Justice are responsible for notifying authorities under Article 23 hereof.

6. While the merger, acquisition is being processed, bailiff offices continue to operate normally until new bailiff offices are licensed to operate by Departments of Justice.

Article 28. Transfer of bailiff offices

1. Bailiff offices can be transferred to other bailiffs which fulfill requirements under Clause 2 of this Article. Bailiff offices shall only be transferred after operating for at least 2 years from the date on which their license to operate is issued.

Bailiffs who have transferred bailiff offices are not allowed to establish new bailiff offices or join other bailiff offices for 5 years from the date of transfer but are allowed to practice as bailiffs under employment contracts.

2. Bailiffs receiving transfer of bailiff offices must meet the following requirements:

a) The bailiffs must guarantee to work for at least 2 years under the transferred bailiff offices and inherit rights and obligations of the transferred bailiff offices;

b) The bailiffs must guarantee to adequately carry out tasks under contracts, agreements between the transferred bailiff offices and solicitors, authorities as per this Decree;

c) The bailiffs are not being temporarily suspended according to Clause 1 Article 12 hereof at the time of receiving the transferred bailiff offices.

3. Bailiff offices that wish to transfer shall submit application to Departments of Justice where they are registered for operation in person or via post service. Application consists of:

a) Application for transfer of bailiff office using form regulated by Minister of Justice;

b) Notarized transfer agreements using form regulated by Minister of Justice;

c) Inventory records of professional documents of transferred bailiff offices;

d) Certified true copies or copies accompanied by original copies of decision on assignment, re-assignment of bailiffs of bailiffs receiving transferred bailiff offices;

dd) Original copies of decision permitting establishment and license to operate of transferred bailiff offices;

e) Audited tax declaration and financial statement in the last 2 years of transferred bailiff offices;

g) Written commitment for details under Points a and b Clause 2 of this Article.

Within 15 days from the date on which adequate applications are received, Departments of Justice shall request provincial People’s Committees to consider and issue decision permitting the transfer of bailiff offices; provide written response and state reason in case of refusal.

Within 15 days from the date on which request sent by Departments of Justice is received, provincial People’s Committees shall consider and issue decision permitting the transfer;

4. Within 20 days from the date on which decision permitting the transfer is received, bailiff offices must apply for revised license to operate in accordance with Article 24 hereof.

Application for revision to license to operate consists of: Application using form regulated by Minister of Justice; Decision permitting the transfer of bailiff offices; documents proving fulfillment of tax obligations in transfer of bailiff offices; documents proving head office of the transferred bailiff offices (if head office is also changed), and application for bailiff practice of bailiffs according to Clause 1 Article 15 hereof.

Within 07 working days from the date on which adequate application is received, Departments of Justice shall issue license to operate to bailiff offices; provide written response and state reason in case of refusal.

5. Within 7 working days from the date on which license to operate is issued to bailiff offices, Departments of Justice are responsible for notifying authorities under Article 23 hereof.

6. While transfer procedures are being processed, transferred bailiff offices are allowed to operate normally until license to operate is re-issued.

Article 29. Suspension of bailiff office

1. A bailiff office shall be suspended when:

a) Director of the bailiff office which is established by a bailiff or all general partner bailiffs of the bailiff office are suspended from working as bailiffs; or

b) The bailiff office fails to fulfill other eligibility as per this Decree and relevant laws.

2. Departments of Justice where bailiff offices are located shall issue decisions on suspension of bailiff office in cases under Clause 1 of this Article.

3. Suspension period shall not last longer than 12 months. During suspension period, the suspended bailiff office must pay unpaid tax, settle other debts, and fulfill obligations under contracts signed with employees; regarding signed service agreements that have not been adequately implemented, the bailiff office must terminate the agreements, unless otherwise agreed upon.

Documents shall remain in storage at suspended the bailiff office.

Article 30. Termination of bailiff office

1. A bailiff office shall be terminated when:

a) The bailiff office terminates voluntarily; or

b) Decision permitting establishment of the bailiff office is revoked according to Article 31 hereof; or

c) The bailiff office is merged or acquired.

2. In case of termination according to Point a Clause 1 of this Article, at least 30 days prior to the expected date of termination, the bailiff office must produce reports to Department of Justice where the bailiff office registers for operation. Prior to the date of termination, the bailiff office is responsible for paying unpaid tax, settling other debts, fulfilling procedures for terminating contracts signed with employees, and completing signed service agreements; if signed service agreements cannot be cannot be completed, the bailiff office must discuss the implementation of said contracts with the solicitors.

Department of Justice where the bailiff office is located is responsible for suspending license to operate of the bailiff office, requesting the provincial People’s Committee to issue decision suspending decision permitting establishment, uploading information on termination of bailiff office on website of the Department of Justice, and notifying authorities under Article 23 hereof in writing.

3. In case of termination according to Point b Clause 1 of this Article, within 7 working days from the date on which decision suspending decision permitting establishment, Department of Justice where the bailiff office is located is responsible for revoking license to operate of bailiff office, uploading information on termination of bailiff office on website of the Department of Justice, and notifying authorities under Article 23 hereof in writing.

Within 60 days from the date on which Decision permitting establishment is revoked, the bailiff office is responsible for paying unpaid tax, settling other debts, terminating employment contracts signed with employees; if signed service agreements cannot be cannot be adequately implemented, the bailiff office must terminate contracts. If the bailiff office fails to settle asset obligations by the end of this time limit or the bailiff office is terminated as a result of decision permitting establishment being revoked due to the fact that the director of bailiff office or all general partner bailiffs of the bailiff office are deceased or declared deceased by the court, assets of the bailiff office and general partner bailiffs shall be used to settle remaining debts of the bailiff office as per civil laws.

4. Documents stored by a bailiff office terminated according to Points a and b Clause 1 of this Article shall be dealt with as follows:

a) Documents on civil judgment enforcement shall be transferred to Department of Civil Judgment Enforcement where the bailiff office is located to store in accordance with regulations on storage of civil judgment enforcement documents. Regarding cases where enforcement is not complete, Department of Justice where the bailiff office is located is responsible for notifying and guiding solicitors to adopt procedures for transferring documents to civil judgment enforcement authority;

b) Bailiff’s reports and other relevant documents shall be transferred to Department of Justice where the bailiff is located for storage.

5. In case of termination in accordance with Point c Clause 1 of this Article, rights and obligations of the bailiff office shall be inherited by the merged or acquiring bailiff office.

6. Department of Justice is responsible for monitoring and requesting the bailiff office to carry out works.

Article 31. Revocation of Decision permitting establishment of bailiff office

1. A bailiff office shall have its Decision permitting establishment revoked when:

a) The bailiff office fails to registers according to Article 22 hereof; or

b) The bailiff office has not started operation after 6 months from the date on which license to operate is issued; or

c) The bailiff office fails to operate for at least 12 consecutive months or fails to operate once the maximum suspension period under Clause 3 Article 29 hereof expires;

d) Director of the bailiff office established by 1 bailiff or all general partner bailiff of the bailiff office is removed, deceased, or declared deceased by a court without an eligible bailiff;

dd) The bailiff is met with an administrative penalty in form of revocation of license to operate for at least 6 months as per administrative penalty laws.

2. Departments of Justice are responsible for examining, reviewing, and requesting provincial People’s Committees to issue decision revoking Decision permitting establishment of bailiff office.