Nghị định 152/2024/NĐ-CP sửa đổi Nghị định 62/2015/NĐ-CP hướng dẫn Luật Thi hành án dân sự

DECREE

AMENDMENTS TO SOME ARTICLES OF DECREE NO. 62/2015/ND-CP DATED JULY 18, 2015 ON ELABORATION AND GUIDANCE ON IMPLEMENTATION OF SOME ARTICLES OF LAW ON CIVIL JUDGMENT ENFORCEMENT AMENDED BY GOVERNMENT’S DECREE NO. 33/2020/ND-CP DATED MARCH 17, 2020

Pursuant to the Law on Government Organization of Vietnam dated June 19, 2015; Law on amendments to some Articles of the Law on Government Organization of Vietnam and Law on Local Government Organization of Vietnam dated November 22, 2019;

Pursuant to the Law on Civil Judgment Enforcement dated November 14, 2008 amended by the Law on Civil Judgment Enforcement dated November 25, 2014; the Competition Law dated June 12, 2018; the Law on amendments to some articles of the Law on Handling Admistrative Violations dated November 13, 2020; the Law on amendments to the Law on Public Investment, the Law on Public-Private Partnership Investment, the Investment Law, the Housing Law, the Law on Bidding; the Law on Electricity, the Law on Enterprises, the Law on Excise Duties, and the Law on Civil Judgment Enforcement dated January 11, 2022; the Land Law dated January 18, 2024;

At the request of the Minister of Justice;

The Government hereby promulgates Decree on amendments to some articles of Decree No. 62/2015/ND-CP dated July 18, 2015 on elaboration and guidance on implementation of some articles of Law on Civil Judgment Enforcement amended by Government’s Decree No. 33/2020/ND-CP dated March 17, 2020.

Article 1. Amendments to some articles of Decree No. 62/2015/ND-CP dated July 18, 2015 on elaboration and guidance on implementation of some articles of Law on Civil Judgment Enforcement amended by Government’s Decree No. 33/2020/ND-CP dated March 17, 2020

1. Point b clause 3 of Article 4 shall be amended as follows:

“b) Objective hindrance means a case where an involved party cannot receive a judgment/decision but it is not caused by their faults; the involved party is working in a border area or island or is forced to abide by the competent authority's decision and cannot request the enforcement on schedule; the involved party meets with an accident or suffers from illness to the extent that he/she completely loses consciousness or dies without an inheritor; an organization is consolidated, merged, divided, dissolved or converted or undergoes mandatory transfer or transfers 100% of shares/stakes and a new organization or individual entitled to request the enforcement has not yet been identified as prescribed by law or the involved party cannot request the enforcement before the deadline due to faults of the adjudication agency, the civil judgment-enforcing agency, another organization or individual or any objective hindrance specified in Article 156 of the Civil Code.";

2. Clause 4 of Article 5 shall be amended as follows:

“4. The enforcer shall act as a witness and sign the agreement at the request of the involved parties in the case specified in clause 2, clause 3 of this Article. The agreement shall be witnessed at the head office of the civil judgment-enforcing agency. With regard to any agreement on transfer of land use rights, house, property attached to land, custody of a minor, visitation or custody of minor, legally incapacitated person or person losing work capacity, the enforcer shall act as witness outside the head office of the civil judgment-enforcing agency if requested by the involved parties.

If it is detected that the agreement is illegal or immoral or impractical, affects legitimate rights and interests of a third party or is aimed at avoiding enforcement fees, the enforcer is entitled to refuse to witness it and shall clearly specify reasons for such refusal in the written agreement.”.

3. Clause 7 shall be added to Article 9 as follows:

“7. When verifying capability of executing judgment, the enforcer may conduct verification through the national database according to regulations of law. The verification result is one of the grounds for judgment enforcement according to regulations of law on civil judgment enforcement.”.

4. Clause 1 Article 12 shall be amended as follows:

“1. The notification of judgment enforcement according to Article 40, Article 41 or Article 42 of the Law on Civil Judgment Enforcement is initial notification. If the notified person gives consent, from the subsequent notification onwards, the civil judgment-enforcing agency may give notification through VneID or the website of the Department of Civil Judgment Enforcement and the web portal of the General Department of Civil Judgment Enforcement affiliated to the Ministry of Justice. If the notified person does not give consent, from the subsequent notification onwards, the civil judgment-enforcing agency shall give notification according to regulations of the Law on Civil Judgment Enforcement.

Involved parties and persons having related interests and obligations shall be directly notified as follows:

a) Enforcers and officials in charge of civil judgment enforcement shall deliver documents to be notified to recipients;

b) Postmen, people authorized by civil judgment-enforcing agencies; chiefs of neighborhoods, villages, hamlets; Presidents of the People’s Committees of communes and chiefs of police authorities of communes; heads of agencies and units; superintendents of prisons and detention camps, heads of criminal judgment-enforcing agencies and police departments of districts shall deliver documents to be notified to recipients that reside or work in their administrative divisions or are serving imprisonment sentences in their facilities.

5. Clauses 5,6,7 and 8 shall be added to Article 13 as follows:

“5. Securities that are being listed or registered for trading at Stock Exchanges shall be handled as follows:

a) The enforcer shall issue a decision to freeze such securities and send the decision to Vietnam Securities Depository and Clearing Corporation; and another agency/organization/individual according to regulations in Article 67 of the Law on Civil Judgment Enforcement. Within 01 working day from the date of receipt of the decision from the enforcer, Vietnam Securities Depository and Clearing Corporation shall freeze these securities according to regulations of the law on securities and notify the civil judgment-enforcing agency and depository member.

The decision to freeze securities shall contain contents, including requests for freezing securities; full name, number and issuance date of 9-digit ID card/ID card of each individual; name, number and issuance date of enterprise registration certificate or an equivalent document of each juridical person; ticker symbols and quantity of securities to be frozen.

b) The enforcer shall issue a decision to coercively distrain and handle securities according to regulations in clause 3 Article 71 of the Law on Civil Judgment Enforcement.

Within 05 working days from the date of receipt of the valid notification of the decision to coercively distrain and handle securities, the involved parties may reach an agreement on sale of securities according to regulations of the law on securities and notify in writing the civil judgment-enforcing agency of such agreement.

After this deadline, the civil judgment-enforcing agency shall request in writing Vietnam Securities Depository and Clearing Corporation to transfer the distrained securities to the civil judgment-enforcing agency. The civil judgment-enforcing agency has rights and obligations to these securities according to regulations of law. Within 05 working days from the date of receipt of the written request from the civil judgment-enforcing agency, Vietnam Securities Depository and Clearing Corporation shall transfer the securities. Within 02 working days from the date of completion of the transfer of securities, the enforcer shall sell them under the agreement reached by the involved parties. In case the involved parties fail to or cannot reach agreement, the enforcer shall sell the securities by matching orders at a reference price according to regulations of the law on securities.

If the decision on judgment enforcement is proactively issued, after issuance of the decision on coercive distraint, the civil judgment-enforcing agency shall request in writing Vietnam Securities Depository and Clearing Corporation to transfer the distrained securities to civil judgment-enforcing agency and sell them by matching orders at a reference price according to regulations of the law on securities.

6. The enforcer shall freeze securities that have not been listed or registered for trading and have been registered at Vietnam Securities Depository and Clearing Corporation for centralized management or securities that are being listed/registered for trading but cannot be sold according to regulations in clause 5 of this Article in accordance with Article 67 of the Law on Civil Judgment Enforcement; issue a decision to coercively distrain and handle property according to clause 3 Article 71 of the Law on Civil Judgment Enforcement. Procedures for valuation and sale of securities shall be followed according to Articles 98, 99 and 101 and other regulations of the Law on Civil Judgment Enforcement, the law on property auction and sale and relevant laws. After sale of the securities, the civil judgment-enforcing agency shall request in writing Vietnam Securities Depository and Clearing Corporation to transfer the ownership of securities to the purchaser according to regulations of law.

7. The enforcer shall distrain and handle securities, shares and contributed capital other than those specified in clause 5, clause 6 of this Article and valuable documents in accordance with Articles 71, 83, 92, 98, 99 and 101 and other regulations of the Law on Civil Judgment Enforcement, the law on property auction and sale, the law on enterprises and relevant laws. When issuing the distraint decision, the enforcer shall currently give written notification of the property distraint to the enterprise to which the judgment debtor contributes capital and relevant agencies and organizations in order to prevent transfer of the ownership or change the property conditions until the civil judgment-enforcing agency issues a decision.

8. If the civil judgment-enforcing agency implements measures to secure and coerce the judgment enforcement, corresponding to the obligations of the judgment debtor and the judgment enforcement fee according to regulations of clause 1 of this Article and the judgment debtor owns other property, the enforcer shall request in writing a relevant competent authority to immediately notify the civil judgment-enforcing agency when there is any transaction related to the property for cooperation in handling according to regulations of law.”.

6. Clause 3 shall be added to Article 15 as follows:

“3. The decision on transfer of the rights and obligations to the judgment enforcement specified in clause 1 Article 54 of the Law on Civil Judgment Enforcement shall be issued on the basis of the decision issued by the competent authority and be conformable with the law on civil judgment enforcement and other relevant laws.

Upon transfer of the rights and obligations specified in Article 54 of the Law on Civil Judgment Enforcement, the head of the civil judgment-enforcing agency shall issue a decision to revoke the judgment enforcement decision previously issued, and issue a new judgment enforcement decision, corresponding to the transferred rights and obligations and the remaining rights and obligations that have not yet been transferred (if any).”.

7. Clauses 1, 3, 4 Article 27 shall be amended as follows:

“1. If the involved parties cannot reach agreement on selection of a property auction organization, the enforcer shall make selection according to law on property auction.

Before initial auction of the property, if the property is jointly owned by multiple owners and they wish to purchase the part of property owned by the judgment debtor at the set price, the enforcer shall request these owners to reach an agreement on the person holding the right to purchase the property. If the agreement cannot be reached, the enforcer shall select the purchaser by drawing lots.

3. In an auction, if there are multiple kinds of property to be auctioned for the judgment enforcement, the civil judgment-enforcing agency shall request the property auction organization to conduct the auction in descending order of the property value. If the collected amounts are enough to pay the debts and expenses according to regulations, the remaining property will not continue to be auctioned.

The purchaser of the auctioned property shall transfer the amount to the account of the civil judgment-enforcing agency within 30 days from the date of successful auction and this time limit shall not be extended. If the purchaser fails to pay or fully pay the amount within the prescribed time limit, the civil judgment-enforcing agency shall cancel the conclusion of the auctioned property purchase contract and the auctioned property purchase contract or request the court to make cancellation according to regulations of law.

Within 60 days from the date on which the purchaser fully pays the amount, the civil judgment-enforcing agency shall hand over the auctioned property to the purchaser, except for cases of force majeure events or objective hindrances. The property auction organization shall be responsible for cooperating with the civil judgment-enforcing agency in handing over the property to the purchaser. If any organization/individual that illegally intervenes in or obstructs the handover, resulting in the late handover, they shall pay compensation for any damage.

4. The civil judgment-enforcing agency shall pay the amounts for judgment enforcement according to Article 47 of the Law on Civil Judgment Enforcement within 10 days from the date on which the property is handed over to the purchaser.

The civil judgment-enforcing agency shall follow procedures for depositing that amount into a bank account with a term of 1 month until the property is handed over. The interest generated over the period before the property is handed over according to regulations in clause 3 of this Article shall be aggregated with the initial deposit for the judgment enforcement; the interest generated outside of the period before the property is handed over belongs to the purchaser. If the civil judgment-enforcing agency implements coercive measures, the judgment debtor, the property owner or the property manager shall incur all expenses for coercive judgment enforcement according to Article 73 of the Law on Civil Judgment Enforcement; if there is any damage, they shall pay compensation according to regulations of law.

If the property cannot be handed over to the purchaser by the deadline specified in the auctioned property sale contract, the purchaser may request cancellation of the contract according to regulations of law.".

8. Clause 2 Article 28 shall be amended as follows:

“2. If the property is the right to use land, house or property attached to land granted a certificate according to regulations of law and the certificate cannot be revoked:

a) The civil judgment-enforcing agency shall submit a written proposal for revocation of the certificate to the competent People's Committee specified in clause 1 Article 136 of the Land Law in case of initial issuance of the certificate or a land registration authority or its branch specified in clause 2 Article 136 of the Land Law in case the certificate is issued when procedures for registration of land-related changes or changes to the property attached to land are followed.

b) Within 25 working days from the date of receipt of the written proposal from the civil judgment-enforcing agency, the competent authority mentioned in point a clause 2 of this Article shall issue a decision to revoke or cancel the issued certificate. The issuance and re-issuance of the certificate shall comply with regulations of the land law.”.

9. Clause 6 shall be added to Article 38 as follows:

“6. Pursuant to Article 4 of this Decree and other relevant laws, the person having power to resolve complaints shall determine the period of occurrence of force majeure events or objective hindrances and this period shall not be included in the prescriptive period specified in clause 2 Article 140 of the Law on Civil Judgment Enforcement.”.

10. Point e clause 1 Article 43 shall be amended as follows:

“e) Costs of suspension of coercive judgment enforcement or completion of coercive judgment enforcement specified in points a,b,d, dd clause 1 Article 50 of the Law on Civil Judgment Enforcement.”.

11. Clause 7 shall be added to Article 49 as follows:

“7. In case of payment upon the property handling, if the property is distrained under a judgment or decision for the fulfillment of a specific obligation according to clause 3 Article 47 of the Law on Civil Judgment Enforcement and there are multiple judgment creditors, but only one or some judgment creditors request the judgment enforcement, the civil judgment-enforcing agency shall pay these judgment creditors (requesters) the amounts to which they are entitled and the remaining amounts shall be deposited into a bank account with a term of 1 month. At the same time, judgment creditors that have not yet requested the rights to make requests for judgment enforcement shall be notified, unless the prescriptive period of requesting judgment enforcement ends.

If the prescriptive period of requesting judgment enforcement ends and the civil judgment-enforcing agency does not receive any request, the deposited amounts and interests shall be paid to the judgment creditors that have requested the judgment enforcement under such judgment/decision; the remaining amounts will be paid to judgment creditors under other judgment enforcement decisions (if any) before the payment or refunded to persons whose property is distrained or handled.”.

12. Clauses 2 and 3 Article 56 shall be amended as follows:

“2. The Ministry of Justice shall hold examinations to recruit enforcers and promulgate regulations on forms, procedures and contents of such examinations to recruit junior enforcers.

Contents and forms of examinations for promotion from junior enforcers to intermediate enforcers, and from intermediate enforcers to senior enforcers shall comply with regulations of law on officials and public employees and law on civil judgment enforcement.

3. The Minister of Justice shall issue regulations on codes, professional standards and payrolls applicable to enforcers at all ranks after reaching agreement with the Ministry of Home Affairs.”.

13. Clause 3 Article 66 shall be amended as follows:

“3. The Minister of Justice shall issue regulations on codes, professional standards and payrolls applicable to inspectors at all ranks after reaching agreement with the Ministry of Home Affairs.”.

14. Clause 1 Article 69 shall be amended as follows:

“1. The assignment or reassignment of inspectors; contents and forms of examinations for promotion from civil judgment enforcement inspectors to chief civil judgment enforcement inspectors and from chief civil judgment enforcement inspectors to senior civil judgment enforcement inspectors shall comply with regulations of the law on officials and public employees and the law on civil judgment enforcement.”.

15. Clause 1 and clause 2 Article 71 shall be amended as follows:

"1. An enforcement secretary is a civil judgment enforcement official who assists a junior enforcer, an intermediate enforcer or a senior enforcer in following civil judgment enforcement procedures or an inspector, a chief inspector or a senior inspector in performing inspection tasks according to regulations of law.

The assignment or reassignment of enforcement secretaries; contents and forms of examinations for promotion from intermediate secretaries to enforcement secretaries shall comply with regulations of the law on officials and public employees and the law on civil judgment enforcement.

2. The Minister of Justice shall promulgate regulations on codes, professional standards and payrolls applicable to enforcement secretaries at all ranks after reaching agreement with the Ministry of Home Affairs.”.

16. Clause 2 of Article 78 shall be amended as follows:

"2. Junior enforcers, intermediate enforcers, senior enforcers, enforcement inspectors, chief enforcement inspectors and senior enforcement inspectors will be entitled to the salaries of Group 1 of Categories A1, A2 and A3 of the currently applicable salary schedule of officials and public employees working in state agencies.

Each enforcement secretary will be entitled to the salary of Category A1 of the currently applicable salary schedule of officials and public employees working in state agencies. Each intermediate enforcement secretary will be entitled to the salary of Category A0 of the currently applicable salary schedule of officials and public employees working in state agencies.

17. Clause 4 shall be added to Article 83 as follows:

“4. Depending on the demands of agencies and units and practical conditions of regions, the Ministry of Justice shall decide allocation and use of uniforms and badges in accordance with regulations of law.”.

Article 2. Annulment of point c clause 2 Article 24 of the Decree No. 62/2015/ND-CP dated July 18, 2015.

Article 3. Transitional provisions

1. If procedures for judgment enforcement have not yet been followed to the date that this Decree takes effect according to regulations in the Decree No. 62/2015/ND-CP dated July 18, 2015, amended by the Government’s Decree No. 33/2020/ND-CP dated March 17, 2020, regulations of this Decree shall prevail.

2. If procedures for judgment enforcement according to the Decree No. 62/2015/ND-CP have already been initiated, procedures specified in this Decree are not required to be re-initiated.

3. If a judgment has been partially enforced or has not yet been enforced to the date that this Decree takes effect but some procedures for judgment enforcement according to the Decree No. 62/2015/ND-CP have already been initiated, such procedures are not required to be re-initiated according to regulations of this Decree. Other procedures for judgment enforcement shall comply with regulations of this Decree. If there is any conflict over procedures for judgment enforcement that have been initiated according to the Decree No. 62/2015/ND-CP , regulations of the Decree No. 62/2015/ND-CP shall prevail for initiation of such procedures.

Article 4. Implementation clause

1. This Decree comes into effect from January 01, 2025.

2. Section 3 point d clause 2 Article 1 of the Decree No. 17/2013/ND-CP dated February 19, 2013 shall be annulled.

3. Ministers, Heads of ministerial agencies, heads of Governmental agencies and Presidents of People’s Committees of provinces and central-affiliated cities shall be responsible for the implementation of this Decree./.

4. The Minister of Justice shall organize the implementation of this Decree; and issue regulations on imposition of penalties on enforcers, inspectors and secretaries that commit violations against regulations of law upon performance of their tasks but are not liable to disciplinary actions in order to meet requirements for state management of civil judgment enforcement.

Bài viết liên quan