Nghị định 44/2020/NĐ-CP quy định về cưỡng chế thi hành án đối với pháp nhân thương mại

THE GOVERNMENT --------	THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom – Happiness ---------------
No. 44/2020/ND-CP	Hanoi, April 08, 2020

 

DECREE

COERCIVE JUDGMENT ENFORCEMENT AGAINST COMMERCIAL JURIDICAL PERSONS

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Execution of Criminal Judgments dated June 14, 2019;

At the request of the Minister of Public Security;

The Government hereby promulgates a Decree on coercive judgment enforcement against commercial juridical persons.

Chapter I

GENERAL

Article 1. Scope

1. This Decree provides for rules, measures and procedures for applying coercive judgment enforcement measures against commercial juridical persons (hereinafter referred to as “corporations”) specified in Article 163 of the Law on Execution of Criminal Judgments.

2. The punishment specified in Article 77 and judicial measures against corporations specified in Point a Clause 1 Article 82 of the Criminal Code shall not be governed by this Decree.

Article 2. Regulated entities

1. Corporations that fail to serve or insufficiently serve the effective Court judgments and decisions.

2. Criminal judgment enforcement agencies of provincial police departments, criminal judgment enforcement agencies of military zones (hereinafter referred to as “competent criminal judgment enforcement agencies”), regulatory agencies supervising corporations and other organizations and individuals related to coercive enforcement.

Article 3. Rules for applying coercive judgment enforcement measures against corporations

1. The enforcement is only carried out after receipt of the written coercive enforcement decisions from competent criminal judgment enforcement agencies.

2. The decision to apply coercive enforcement measures is made according to the punishment and judicial measures imposed on corporations, contents, nature, degree and conditions for execution of coercive enforcement decisions and local actual conditions.

3. The time limit for application of a coercive enforcement measure for guarantee for execution of court judgments does not exceed the sentence-serving term specified in the effective court judgment or decision; the time limit for provision of guarantee for execution of a judicial measure is determined once such judicial measure is completely enforced.

4. A corporation may be subject to one or more enforcement measures at the same time if a single coercive enforcement measure does not guarantee their execution.

5. Legitimate rights and benefits of corporations, relevant organizations and individuals are protected upon coercive judgment enforcement.

Article 4. Coercive judgment enforcement measures against corporations

Coercive judgment enforcement measures against a corporation include:

1. Account freeze.

2. Distraint of property of which value is equivalent to the sum put up as guarantee for the execution of judicial measures (briefly called property distraint).

3. Impoundment of records and documents and devices containing electronic data; impoundment or withdrawal of seals of corporations.

Article 5. Make records on corporation’s failure to serve or insufficient serving of effective Court judgments and decisions

1. During the inspection and supervision of the corporation’s serving of the Court judgment/decision, it is found that the corporation fails to serve or insufficiently serves the effective Court judgment/decision, the competent criminal judgment enforcement agency shall take charge and cooperate with the regulatory authority supervising the corporation in making a record on its failure to serve or insufficient serving of the effective Court judgment/decision in witness of the legal representative of the corporation and representative of the local authority.

If the corporation's legal representative is absent or refuses to sign the record, the absence or refusal shall be mentioned in the record and the record shall be still made.

2. Date and place of making the record; grounds for making the record; full name and position of the person preparing the record; name, address and TIN of the corporation; result of corporation’s serving of the Court judgment/decision; opinions of the corporation’s legal representative and relevant organizations and individuals (if any) shall be clearly stated in the record.

3. The record mentioned in Clause 1 of this Article shall serve as one of the bases for competent criminal judgment enforcement agencies to issue coercive enforcement decisions.

Article 6. Sending decisions on coercive judgment enforcement against corporations

Within 03 working days from the date on which the coercive enforcement decision is issued, the competent criminal judgment enforcement agency shall send it to the Court that issued the judgment enforcement decision, procuracy at the same level, relevant regulatory agency supervising the corporation, corporation, corporation’s legal representative, National Business Registration Portal and other relevant organizations and individuals; if the coercive judgment enforcement measures specified in Clauses 2 and 3 Article 4 hereof, the coercive enforcement decision shall be sent to the People’s Committee of the commune where the distrained property is available or where records, documents or devices containing electronic data are impounded or where seals are impounded or withdrawn 03 working days before its execution.

Article 7. Summoning and notification of execution of decisions on coercive judgment enforcement against corporations

1. Within 03 working days from the date on which the coercive judgment enforcement decision is issued, the competent criminal judgment enforcement agency shall summon the corporation’s legal representative to the agency to notify the enforcement decision. When summoned by the competent criminal judgment enforcement agency, the corporation’s legal representative must not be absent, except for force majeure or objective obstacle.

2. If the corporation’s legal representative is legally summoned but is absent, the competent criminal judgment enforcement agency shall make a record on its his/her absence, which must be confirmed by the local government’s representative. The corporation’s legal representative is deemed informed of the enforcement decision.

Article 8. Coercive enforcement carried out in case of transfer of judgment enforcement obligation upon the restructuring of the corporation

If the convicted corporation engages in partial or total division, consolidation, acquisition, or conversion of its type of business in accordance with regulations of law, the successor corporation which takes on rights and obligations of the convicted corporation (predecessor) shall continue to implement the coercive judgment enforcement decision issued by the competent criminal judgment enforcement agency.

Article 9. Responsibility for organizing execution of coercive judgment enforcement decisions

1. Every competent criminal judgment enforcement agency shall organize execution of coercive judgment enforcement decisions and publish relevant decisions issued during the coercive enforcement on its website.

2. Regulatory agencies supervising corporations and other relevant organizations and individuals shall, within their jurisdiction and at the request of competent criminal judgment enforcement agencies, cooperate in organizing execution of coercive judgment enforcement decisions; and publish decisions issued by competent criminal judgment enforcement agencies during the coercive enforcement on their websites upon receipt thereof.

3. The authority that manages the National Business Registration Portal shall register decisions issued by competent criminal judgment enforcement agencies during the coercive enforcement on the National Business Registration Portal upon receipt thereof.

Chapter II

COERCIVE ENFORCEMENT PROCEDURES

Section 1. ACCOUNT FREEZE

Article 10. Bases for issuing account freeze decisions

An account freeze decision shall be issued on the basis of:

1. An effective Court judgment/decision;

2. A record made as prescribed in Article 5 hereof;

3. An account opened by the convicted corporation at a credit institution, state treasury, securities company or Vietnam Securities Depository (hereinafter referred to as the “account”).

4. Documents used for verifying the corporation's account.

Article 11. Cases in which account freeze measure is applied

An account freeze measure may be applied in the following cases:

1. Carry out coercive enforcement of serving of the decision to suspend operation (in case of suspension of all fields).

2. Carry out coercive enforcement of serving of the decision on prohibition from operating in certain fields (in case of prohibition from operating in all fields); prohibition from raising capital.

3. Carry out coercive enforcement of serving of the judicial measure.

Article 12. Verifying information about corporation’s account

1. Within 03 working days from the date on which the record is made as prescribed in Article 5 hereof, the competent criminal judgment enforcement agency issuing the account freeze decision shall request the credit institution, state treasury, securities company or Vietnam Securities Depository to provide information about the corporation's account in accordance with regulations of law. The competent criminal judgment enforcement agency provided with such information shall maintain its confidentiality and only use it in accordance with regulations of law.

2. The corporation against which the coercive enforcement measure is taken shall notify the competent criminal judgment enforcement agency issuing the account freeze decision of name of the credit institution, state treasury, securities company or Vietnam Securities Depository where its account is opened, corporation’s account number and other information about the account upon request.

Article 13. Issuing and sending account freeze decisions

1. Within 03 working days from the verification of information about the corporation’s account is done, the head of the competent criminal judgment enforcement agency shall issue the account freeze decision.

In the cases specified in Clauses 1 and 2 Article 11 hereof, the decision to freeze entire account shall be issued; in the case specified in Clause 3 Article 11 hereof, the decision to freeze the balance or securities in the account equivalent to the amount used for enforcing judicial measures and coercive enforcement cost.

2. An account freeze decision shall contain at least number of the decision; issuance date; full name and position of the decision maker and unit for which he/she is working; name, address, enterprise identification number and tax identification number of the corporation whose account is freezed; number and name of the freezed account, purposes of freeze, scope of freeze, freezed balance or securities, date of freeze, freeze duration, responsibility of the credit institution, state treasury, securities company or Vietnam Securities Depository and other information (if any); signature of the decision maker and seal of the competent criminal judgment enforcement agency.

3. The account freeze decision shall be sent and notified as prescribed in Articles 6 and 7 hereof.

Article 14. Responsibility of credit institutions, state treasuries, securities companies and Vietnam Securities Depository where corporations open their account

1. Within 03 working days from the receipt of the account freeze decision of the competent criminal judgment enforcement agency, the credit institution, state treasury, securities company or Vietnam Securities Depository where the corporation opens its account shall freeze the account according to the account freeze decision.

2. The credit institution, state treasury, securities company or Vietnam Securities Depository shall notify the corporation whose account is freezed of the account freeze from the date of freeze and send a written notification of freeze results to the competent criminal judgment enforcement agency within 03 working days from date on which the corporation is notified.

Article 15. Deduction of balance in accounts and settlement of securities in securities accounts

1. The head of the criminal judgment enforcement agency shall issue a decision to deduct balance in the corporation's account to provide guarantee for enforcement of the judicial measures specified in Points b and c Clause 1 Article 82 of the Criminal Code.

2. The deducted balance shall not exceed the amount used for enforcing judicial measures and coercive enforcement cost.

3. After receiving the decision to deduct balance in the account of the corporation that has to enforce the judicial measure, the credit institution or state treasury that manages such account or securities company where the corporation opens its securities account shall deduct account balance and transfer it to the competent criminal judgment enforcement agency to organize coercive enforcement of the judicial measure.

4. The provision of guarantee for enforcement of judicial measures in case the corporation has securities in its securities account shall comply with applicable regulations of law.

Article 16. Unfreezing accounts

1. Within 03 working days from the date on which the corporation completely serves with the Court judgment or decision or after the organization has completely complies with the competent criminal judgment enforcement agency’s request for deduction of balance or settlement of securities in the corporation’s account, the competent criminal judgment enforcement agency shall terminates the account freeze.

The account unfreeze is subject to a written decision by the competent criminal judgment enforcement agency.

2. After issuing the account unfreeze decision, the competent criminal judgment enforcement agency shall send it to the credit institution, state treasury, securities company or Vietnam Securities Depository managing the corporation's account for execution purpose.

3. The credit institution, state treasury, securities company or Vietnam Securities Depository managing the corporation's account shall unfreeze the account after receiving the account unfreeze decision and send a written notification of account unfreeze to the competent criminal judgment enforcement agency and convicted corporation within 03 working days from the date of account unfreeze.

4. The account unfreeze decision shall be also sent to the organizations and individuals specified in Article 6 hereof.

Section 2. PROPERTY DISTRAINT

Article 17. Bases for issuing property distraint decisions

A property distraint decision shall be issued on the basis of:

1. An effective Court judgment/decision.

2. A record made as prescribed in Article 5 hereof.

3. The convicted corporation does not have an account or the balance in the account opened at the credit institution, state treasury, securities company or Vietnam Securities Depository is insufficient to guarantee the coercive enforcement of a judicial measure.

4. Documents used for verifying the corporation's account.

Article 18. Cases in which a property distraint measure is applied

The property distraint measure shall be applied to guarantee the coercive enforcement of the judicial measures specified in Points b and c Clause 1 Article 82 of the Criminal Code.

Article 19. Verifying information about corporation’s property

1. The competent criminal judgment enforcement agency shall verify information about property of the corporation against which judicial measures are enforced (hereinafter referred to as “the enforced corporation”).

2. Relevant units, organizations and individuals shall, at the request of the competent criminal judgment enforcement agency, provide information about property of the enforced corporation.

Article 20. Property that is not allowed to be distrained

1. Property that is prohibited from circulation in accordance with regulations of law; property serving national defense, security and public purposes; property provided by the state budget to organizations and individuals.

2. Medicines for workers; foods, instruments and other property used for providing meals to workers.

3. Kindergartens, schools, health facilities, and their equipment, vehicles and other property which is not for business purposes.

4. Equipment, vehicles and instruments intended for assurance of occupational safety and fire safety, and environmental pollution prevention and control.

Article 21. Distraint of property put up as collateral

1. If the corporation does not have any other property or its property is insufficient to enforce a judgment, the criminal judgment enforcement agency is entitled to distrain or dispose the corporation’s property put up as collateral if its value exceeds the debt and coercive judgment enforcement cost.

2. At least 02 days before the distraint of property put up as collateral, the competent criminal judgment enforcement agency shall notify the person receiving property as collateral.

Article 22. Distraint of corporation’s property held by a third party

1. Where it is found that a third party is holding the corporation’s property and the property is determined according to another judgment or decision, the competent criminal judgment enforcement agency shall issue a decision to distrain such property; if the third party fails to voluntarily transfer the property, the competent criminal judgment enforcement agency shall take coercive enforcement measures.

2. If the property to be distrained is being leased, the lessee is entitled to lease it under the contract.

Article 23. Distraint of contributed capital

The competent criminal judgment enforcement agency shall request the individual or organization where the corporation’s contributed capital is available to provide information about the corporation’s contributed capital to distrain such contributed capital. Where necessary, the competent criminal judgment enforcement agency shall consult a competent organization/individual about determination of value of the contributed capital with a view to coercive judgment enforcement.

Article 24. Distraint of vehicles

1. In case of distraint of a corporation’s vehicle, the competent criminal judgment enforcement agency shall request the corporation, manager or user of such user shall transfer the vehicle registration certificate (if any).

2. The criminal judgment enforcement agency is entitled to request a competent authority not to transfer or lease the distrained vehicle or put up it as collateral or request it to restrict operation of the vehicle on road.

3. The distraint of aircrafts and ships to enforce the judgment shall comply with regulations of law on arrest of aircrafts and ships.

Article 25. Distraint and use of intellectual property rights

1. The competent criminal judgment enforcement agency shall issue decisions to distraint intellectual property rights under the corporation’s ownership.

If the corporation that is the owner of intellectual property rights has transferred them to another organization or individual, such intellectual property rights shall be still be distrained.

2. Upon distraint of corporation's intellectual property rights, depending on each subject matter of the intellectual property rights, the competent criminal judgment enforcement agency shall impound documents concerning the corporation’s intellectual property rights.

3. In order to achieve national defense or security objectives or serve everyday life and state and social interests specified in the Intellectual Property Law, the State may decide that the owner of the intellectual property rights shall transfer the intellectual property rights to another organization or individual for a certain period. In this case, the competent criminal judgment enforcement agency is not allowed to distrain the corporation’s intellectual property rights during the period of compulsory transfer.

4. The competent criminal judgment enforcement agency shall decide to transfer intellectual property rights to another organization or individual. The organization or individual assigned to use intellectual property rights shall transfer the amounts obtained after deducting necessary costs to the criminal judgment enforcement agency to guarantee the enforcement of judicial measure.

Where necessary, the competent criminal judgment enforcement agency shall request the specialized or professional intellectual property organization to collect and manage profits earned from the use of the corporation's intellectual property rights.

5. If the corporation has transferred the intellectual property rights to another organization or individual but has not been paid or fully paid for the transfer, the competent criminal judgment enforcement agency shall issue a decision to compel such organization or individual to make the payment to guarantee the enforcement of judicial measure.

Article 26. Distraint of property that is land use right, property subject to registration of ownership or security interests

1. Upon distraint of the land use right (hereinafter referred to as “land”), the competent criminal judgment enforcement agency shall request the corporation and person managing documents on the land shall submit such documents to agency.  The corporation’s distrained land shall be allowed to be transferred in accordance with regulations of law.

2. Upon distraint of land and property thereon under the corporation’s ownership, it is required to distrain both land and property thereon.

If the property on land is under the ownership of another person, the competent criminal judgment enforcement agency shall only distrain the land and notify the person who has property on land.

3. Upon distraint of property that is land or property subject to registration of ownership or security interests in accordance with regulations of law, the competent criminal judgment enforcement agency shall request the registry to provide information about the registered property and security interests.

4. After the distraint, the criminal judgment enforcement agency shall send a written notification of the property distraint to the registry.

The property and security interest registry shall suspend or terminate the compliance with requests related to the security interests on the corporation’s property after receiving the competent criminal judgment enforcement agency’s request.

Article 27. Distraint of property on land

Upon distraint of the property that is construction work on land, it is required to distrain the land, except for the case where the land is not distrained as prescribed by law or the separation of distrained property from land does not considerably reduce the value of such property.

Article 28. Issuing and sending property distraint decisions

1. Within 03 working days from the verification of information about the corporation’s property, the head of the competent criminal judgment enforcement agency shall issue the property distraint decision.

2. A property distraint decision shall contain at least number of the decision; issuance date; bases for issuing the decision; full name and position of the decision maker and unit for which he/she is working; name, address, enterprise identification number and tax identification number of the corporation whose property is distrained; amounts and property to be distrained; place of distraint; signature of the decision maker and seal of the competent criminal judgment enforcement agency.

3. The property distraint decision shall be sent and notified as prescribed in Articles 6 and 7 hereof.

Article 29. Organizing property distraint

1. The property distraint shall be carried out from 08 am to 17 pm, except for statutory public holidays and other special cases decided by the Government.

2. The competent criminal judgment enforcement agency shall preside over the distraint.

3. Upon distraint of property, the corporation’s legal representative, organization or individual whose property is distrained, representative of the local authority of the area where the property to be distrained is available and witnesses must be present. If the corporation’s legal representative or organization or individual whose property is distrained is legally summoned or notified but is absent, the property distraint shall be still carried out and a record on the absence shall be made in witness of the representative of the local authority of the area where the property to be distrained is available and representative of the regulatory agency for the corporation.

4. It is only allowed to distrain property of the enforced corporation in a manner that is equivalent to the amount used for enforcing the judicial measure and coercive enforcement cost.

5. If it is not sufficient to execute the property distraint decision, only distrain the property under joint ownership of the enforced corporation and another person. If the property is under dispute, continue to carry out distraint and explain to the co-owners of the property to be distrained about the right to make claims in accordance with civil proceeding procedures.

The competent criminal judgment enforcement agency shall make publicly available the date and place of distraint. After 90 days from the date of distraint, if no claim is made, the distrained property shall be put up for auction in accordance with regulations of law on property auction.

Article 30. Property distraint records

1. The property distraint shall be recorded. The record shall clearly specify date and place of distraint; competent criminal judgment enforcement agency that presides over the distraint; legal representative of the corporation whose property is distrained, organization or individual whose property is distrained or their legal representative; witness; representative of the local authority of the area where the property to be distrained is available; name, conditions and characteristics of property to be distrained.

2. Representative of the competent criminal judgment enforcement agency, legal representative of the corporation, organization or individual whose property is distrained or their legal representative, representative of the local authority and witness shall sign the record. The absence or refusal to sign the record shall be clearly specified in the record and reasons therefore shall be given.

3. The distraint record shall be made into 02 copies being equally authentic, 01 is kept by the competent criminal judgment enforcement agency issuing the coercive enforcement decision and 01 is kept by the corporation’s legal representative.

Article 31. Assigning responsibility to protect distrained property

1. The competent criminal judgment enforcement agency that distrains property shall assign the responsibility to protect distrained property to the following:

a) The corporation or the manager or user of the property;

b) Organization or individual that satisfies storage conditions;

c) One of the co-owners of the property.

2. The State Treasury shall be assigned to temporarily manage the property that is gold, silver, valuable metal, precious stone or currency; the specialized regulatory agency shall be assigned to temporarily manage other property, as the case may be.

3. Upon assigning the responsibility to protect the distrained property, the competent criminal judgment enforcement agency shall make a record. The record shall clearly specify the date of assigning the responsibility to protect the distrained property; legal representative of the enforced corporation, person assigned the responsibility to protect the distrained property; quantity and quality of the distrained property; and rights and obligations of the person assigned the responsibility to protect and shall bear signature put to the bottom of each page.

The competent criminal judgment enforcement agency assigned the responsibility to protect distrained property, enforced corporation’s legal representative and witness shall put their signature to the record. If the record has multiple pages, signature shall be put to each page. The absence or refusal to sign the record shall be clearly specified in the record and reasons therefore shall be given.

The record shall be kept by the person assigned the responsibility to protect the distrained property. The enforced corporation’s legal representative, witness and person presiding over the distraint shall each keep 01 copy.

4. Persons assigned the responsibility to protect distrained property shall reimbursed for the protection cost, except for the persons specified in Point a Clause 1 of this Article.

5. If persons assigned the responsibility to protect distrained property damage, swap, lose or destroy property, they shall provide compensation and incur penalties depending on the nature and severity of the violations.

Article 32. Valuation of distrained property

1. Distrained property shall be valuated at the premises of the corporation whose property is distrained or place where the distrained property is stored, except for the case where a property valuation council is required to be established or the valuation is carried out by a valuating body.

2. The distrained property shall be valuated under an agreement between the competent criminal judgment enforcement agency and the enforced corporation’s legal representative and co-owner in case of distraint of the shared property. The agreement shall be reached within 05 working days from the date of distraint.

In case of failure to reach an agreement, within 10 working days from the date on which the property is distrained, the competent criminal judgment enforcement agency shall issue a decision to establish a property valuation council or sign a service contract with a valuating body. The property valuation council shall be composed of a Chair, who is the head of the competent criminal judgment enforcement agency, representative of the finance authority at the same level and representative of relevant specialized agency.

Within 07 working days from the date of establishing the property valuation council or from the date of signing the contract with the valuating body, the valuation council or valuating body shall carry out the valuation. The property valuation shall be based on the market price at the time of valuation. Regarding the property whose price is solely managed by the State, the valuation of such property shall be based on the prices set by the State.

3. Valuation of the distrained property must be made into a record that specifies time and place of valuation, valuation methods, participants in valuation, name and value of the property after valuation, signatures of members participating in valuation and of the corporation’s legal representative.

Article 33. Transfer of distrained property for auction

1. Regarding the property distrained for auction, the starting price shall be determined as prescribed in Article 32 hereof. Within 20 working days from the date on which the property is distrained, the person issuing the coercive enforcement shall sign an auction contract with the professional auctioneering body; in case of failure to sign an auction contract with the professional auctioneering body, a property auction council shall be established.

The distrained property shall be auctioned in accordance with regulations of law on property auction.

2. After signing an auction contract, the competent criminal judgment enforcement agency shall transfer the distrained property for auction. The transfer shall be made in a record, which specifies the date of transfer; transferor and transferee; signatures of the transferor and transferee; quantity and status of the property. Documentation required for transfer of the distrained property to the to the authority in charge of auction include a decision on coercive distraint, documents relating to the ownership or the right to use of such property (if any); a property valuation report and property transfer record.

3. If the distrained property is a bulky commodity or a commodity in large quantity but the authority in charge of auction is not able to put it into storage, after completion of the transfer procedures, that authority may sign a storage service contract with the authority that is keeping the property. Costs incurred in connection with execution of the contract shall be reimbursed by using the amount of money earned from auction.

4. Upon auction of the property under joint ownership, co-owners shall be given priority to buy such property.

5. In case where the amount of money earned from property auction exceeds the amount used for enforcing judicial measures and coercive enforcement cost, within 10 working days from the date of auction, the competent criminal judgment enforcement agency shall follow required procedures to return the difference to the enforced corporation and a record on transfer of such difference shall be made.

Article 34. Transfer of the property ownership

1. The buyer’s ownership of the distrained property shall be recognized and protected by law.

2. The competent authority shall follow procedures for transferring the ownership to the buyer in accordance with regulations of law.

3. Documentation required for ownership transfer includes:

a) A copy of the coercive enforcement decision that takes the form of distraint of property for auction;

b) A property auction report;

c) Other documents relating to the property (if any).

Section 3. IMPOUNDMENT OF RECORDS, DOCUMENTS AND DEVICES CONTAINING ELECTRONIC DATA; IMPOUNDMENT OR WITHDRAWAL OF SEALS OF CORPORATIONS

Article 35. Bases for issuing decisions on impoundment of records, documents and devices containing electronic data; impoundment or withdrawal of seals of corporations

A decision on impoundment of records, documents or devices containing electronic data; impoundment or withdrawal of corporation’s seal shall be issued on the basis of:

1. An effective Court judgment/decision;

2. A record made as prescribed in Article 5 hereof.

Article 36. Case in which measures for impoundment of records, documents and devices containing electronic data; impoundment or withdrawal of seals are applied

1. Records, documents or devices containing electronic data and seal of a corporation may be impounded in case of coercive enforcement of serving of the decision to suspend operation; the decision on prohibition from operating in certain fields; decision on prohibition from raising capital according to the effective court judgment or decision.

Only records, documents or devices containing electronic data related to the business line of the corporation against which the coercive judgment measure is taken according to the effective court judgment or decision.

2. The corporation’s seal shall be withdrawn in case of coercive enforcement of serving of the decision on permanent shutdown.

Article 37. Issuing decisions on impoundment of records, documents and devices containing electronic data; impoundment or withdrawal of seals of corporations

1. Within 03 working days from the date on which the record is made as prescribed in Article 5 hereof, the head of the competent criminal judgment enforcement agency shall issue the decision on impoundment of records, documents or devices containing electronic data; impoundment or withdrawal of seal of the corporation.

2. The decision on impoundment of records, documents and devices containing electronic data; impoundment or withdrawal of seal of the corporation contains at least number of the decision; issuance date; bases for issuing the decision; full name and position of the decision maker and unit for which he/she is working; name, address, enterprise identification number and tax identification number of the corporation; records, documents or devices containing electronic data to be impounded or seal to be impounded or withdrawn; place of impoundment or withdrawal; signature of the decision maker and seal of the competent criminal judgment enforcement agency.

3. The decision on impoundment of records, documents or devices containing electronic data; impoundment or withdrawal of seal of the corporation shall be made as prescribed in Articles 6 and 7 hereof.

Article 38. Organizing execution of the decision on impoundment of records, documents or devices containing electronic data; impoundment or withdrawal of seal of the corporation

1. Prepare for impoundment of records, documents or devices containing electronic data; impoundment or withdrawal of seal of the corporation

a) Records, documents, devices containing electronic data or seal of the corporation shall be sealed before the impoundment or withdrawal;

b) The competent criminal judgment enforcement agency presiding over the sealing of records, documents or devices containing electronic data or seal of the corporation shall notify the corporation’s legal representative, representative of the organization or individual whose rights, obligations and responsibilities are related to the records, documents, devices containing electronic data or seal of the corporation and invite representative of the local authority of the area where the sealing takes place to witness.

c) The competent criminal judgment enforcement agency presiding over the sealing of records, documents, devices containing electronic data, or seal of the corporation shall provide instructions on preparing equipment necessary for the sealing.

2. Seal records, documents or devices containing electronic data; seal of the corporation

a) Carry out an inspection to sufficiently and accurately specify the status of records, documents, devices containing electronic data or seal of the corporation in the sealing record;

b) Package or closely cover the records, documents, devices containing electronic data or seal to be sealed;

c) The competent criminal judgment enforcement agency presiding over the sealing shall notify the corporation’s legal representative, representative of the organization or individual whose rights, obligations and responsibilities are related to the records, documents, devices containing electronic data or seal of the corporation and representative of the local authority of the area where the sealing takes place. The aforementioned persons shall append their signature and full name or their fingerprints (together with name of the person appending their fingerprints) to the anti-tampering stamp (write or append fingerprints using durable ink);

d) Stick anti-tampering stamps

Regarding documents and records, it is required to stick anti-tampering stamps on openable parts of their container or parts that may affect the status quo of the records and documents.

Regarding the devices containing electronic data or seal of the corporation, it is required to stick anti-tampering stamps on important parts that aid in determining the origin.

As the case may be, measures shall be taken to protect anti-tampering stamps to satisfy transport and storage conditions;

dd) Terminate sealing of records, documents, devices containing electronic data or seal of the corporation

The competent criminal judgment enforcement agency shall make a sealing record. The record shall specify incorrect quantity, characteristics and status of records, documents, devices containing electronic data or seal of the corporation before and after the sealing, signature, full name or fingerprints (together with name of the person appending fingerprints) of the person organizing or participating in sealing, impoundment or withdrawal. The record shall be made into 02 copies being equally authentic, 01 is included in the judgment enforcement dossier and 01 is kept by the corporation’s legal representative.

If the corporation’s legal representative refuses to append his/her signature to the record or anti-tampering stamps, his/her refusal shall be specified in the record.

If the corporation’s legal representative or representative of the organization or individual whose rights, obligations and responsibilities are related to the sealed or impounded records/documents/devices containing electronic data or impounded or withdrawn seal of the corporation has been notified but absent, the competent criminal judgment enforcement agency shall still seal and impound records, documents or devices containing electronic data or impound or withdraw the seal but the absence shall be mentioned in the record.

3. The sealed or impounded records/documents/devices containing electronic data or impounded or withdrawn seal shall be stored at the competent criminal judgment enforcement agency and their status quo shall be maintained during the storage.

If records/documents/devices containing electronic data of the corporation are sealed, the competent criminal judgment enforcement agency and person participating in the sealing shall keep their confidentiality.

Article 39. Termination of impoundment of records, documents, devices containing electronic data or seal of the corporation

1. Within 03 working days from the date on which the corporation completely service the court judgment or decision the competent criminal judgment enforcement agency issuing the decision on impoundment of records, documents, devices containing electronic data or seal of the corporation shall terminate the impoundment. The termination of impoundment of records, documents, devices containing electronic data or seal is subject to a decision by the competent criminal judgment enforcement agency.

2. The decision to terminate impoundment of records, documents, devices containing electronic data or seal shall be sent to the corporation’s legal representative and corporation whose records, documents, devices containing electronic data or seal is impounded. The removal of anti-tampering stamps shall comply with Article 40 hereof.

3. After issuing the decision to terminate impoundment of records, documents, devices containing electronic data or seal, the competent criminal judgment enforcement agency shall transfer the impounded records, documents, devices containing electronic data or seal.

4. The decision to terminate impoundment of records, documents, devices containing electronic data or seal shall be sent to the organizations and individuals specified in Article 6 hereof.

Article 40. Procedures for removing anti-tampering stamps to transfer corporation’s impounded records, documents, devices containing electronic data or seal

1. Prepare for removal of anti-tampering stamps

The competent criminal judgment enforcement agency presiding over the removal of anti-tampering stamps shall notify the corporation’s legal representative, representative of the organization or individual whose rights, obligations and responsibilities are related to the records, documents, devices containing electronic data or seal of the corporation and representative of the local authority of the area where the removal of anti-tampering stamps takes place.

2. Remove anti-tampering stamps

a) Check the anti-tampering stamps stuck on records, documents or devices containing electronic data or seal of the corporation before the removal;

b) Remove anti-tampering stamps and open the packaged or closely covered records, documents or devices containing electronic data or seal.

Remove anti-tampering stamps of records, documents or devices containing electronic data or seal that is not packaged or closely covered;

c) Check the records, documents or devices containing electronic data or seal after the removal.

3.  Follow the instructions below after the removal of anti-tampering stamps is done:

After the removal of anti-tampering stamps is done, a record shall be made. The removal record shall specify status of anti-tampering stamps prior to the removal, status of records, documents, devices containing electronic data or seal after the removal and bear signatures, full names or fingerprints (together with full name of the person appending his/her fingerprints) of the person presiding over and participating in the removal. The record shall be made by the competent criminal judgment enforcement agency into 02 copies being equally authentic, 01 is included in the judgment enforcement dossier and 01 is kept by the corporation’s legal representative.

If the anti-tampering stamps fail to remain intact, it is required to make a record on status of anti-tampering stamps for verification purposes.

4. After the removal of anti-tampering stamps is done, the competent criminal judgment enforcement agency shall transfer records, documents or devices containing electronic data or seal of the corporation. The transfer shall be made into a record, which shall bear signatures, full names or fingerprints (together with full name of the person appending his/her fingerprints) of the person presiding over and participating in the removal in accordance with regulations of law and this Decree.

Chapter III

GURANTEEING EXECUTION OF COERCIVE ENFORCEMENT DECISIONS AND COERCIVE ENFORCEMENT COSTS

Article 41. Measures to guarantee execution of coercive enforcement decisions

1. When a decision to take coercive measure is issued, if it is suspected that the against which the coercive enforcement measure is taken hides or damages property, the decision maker is entitled to request relevant organizations and local authority of the area where the corporation against which the coercive enforcement measure is taken has its headquarters located or where the property is available to freeze such property.

2. If the corporation against which the coercive enforcement measure is taken fails to execute the coercive enforcement decision, the competent criminal judgment enforcement agency is entitled to deploy forces and vehicles to guarantee the execution.

3. In order to guarantee the coercive enforcement of a judicial measure, after deducting the balance in the account or settling the securities or auctioning property, the competent criminal judgment enforcement agency shall hire a capable organization or individual under a fixed-price contract to take the judicial measure according to the effective court judgment or decision. The signature of the fixed-price contract shall comply with regulations of law.

Article 42. Transfer of the coercive enforcement decision to guarantee execution thereof

1. If the corporation against which the coercive enforcement measure is taken is located in a province but has its headquarters located in another province and is not able to execute the coercive enforcement decision in the area where it committed the violation, the coercive enforcement decision shall be transferred to the competent enforcement agency at the same level of the area where the corporation against which the coercive enforcement measure is taken has its headquarters located or where the property is available.

2. The authority in charge of transfer of the coercive enforcement decision shall transfer the case file to the agency at the same level of the area where the corporation against which the coercive enforcement measure is taken has its headquarters located or where the property is available.

Within 10 working days from the date on which the notice of transfer and file case are received, the agency at the same level of the area where the corporation against which the coercive enforcement measure is taken has its headquarters located or where the property is available shall execute the coercive enforcement decision and notify result to the transferor.

Article 43. Determination of coercive enforcement costs

1. The coercive enforcement costs shall be determined according to the costs incurred during execution of a coercive enforcement decision in a manner that suits prices in each area.

2. The coercive enforcement costs include:

a) Cost of deploying persons to execute the coercive enforcement decision;

b) Remuneration for persons that carry out property valuation for auction, cost of conducting property auctions;

c) Cost of hiring vehicles to carry out dismantling and transport objects and property;

d) Cost of distrained property protection;

dd) Cost of transfer of coercive enforcement decisions;

e) Cost of taking judicial measures;

g) Other actual costs (if any).

Article 44. Advance payment, return and payment of coercive enforcement costs

1. Part of the state budget shall be advanced to pay the coercive enforcement costs and reimbursed after receiving payments made by the corporation against which the coercive enforcement measure is taken.

2. The corporation against which the coercive enforcement measure is taken shall incur all coercive enforcement costs.

3. The Ministry of Finance shall provide guidance on management, provision, advance payment and reimbursement of coercive enforcement costs in accordance with regulations of the Law on State Budget.

Chapter IV

IMPLEMENTATION CLAUSE

Article 45. Effect

This Decree comes into force from June 01, 2020.

Article 46. Responsibility for implementation

1. The Minister of Public Security shall provide guidance on the implementation of this Decree.

2. Ministers, heads of ministerial agencies, heads of Governmental agencies, Presidents of People's Committees of provinces and central-affiliated cities are responsible for the implementation of this Decree./.

 

ON BEHALF OF THE GOVERNMENT THE PRIME MINISTER Nguyen Xuan Phuc