Bản dịch văn bản 12/2001/TTLT/BTP-VKSTC
Joint circular 12/2001/TTLT/BTP-VKSTC
Cơ quan ban hành: Bộ Tư pháp
Ngày ban hành: 2001-02-26

JOINT CIRCULAR No JOINT CIRCULAR No. 12/2001/TTLT-BTP-VKSTC OF FEBRUARY 26, 2001 GUIDING THE IMPLEMENTATION OF A NUMBER OF LAW PROVISIONS ON EXECUTION OF CIVIL JUDGMENTS In order to apply a number of law provisions on execution of civil judgments and to meet the requirements in the practical execution of civil judgments, the Ministry of Justice and the Supreme People’s Procuracy hereby uniformly guide a number of law provisions on execution of civil judgments as follows: 1. WAY OF DETERMINING JUDGMENT EXECUTIONS 1. With a view to ensuring the uniform way of compiling judgment execution dossiers and gathering judgment execution statistics, now to provide that each judgment execution decision be regarded as one judgment execution. For each judgment or decision of the Court, which has come into force for execution (herein after collectively called judgment and decision), the heads of the judgment execution body may issue one or more than one judgment execution decision, specifically: a/ For a judgment or decision which contains many clauses, of which one or more than one clause regarding proactive execution and one or more than one clause regarding execution at written request, the head of the judgment execution body may issue a decision on execution of all clauses regarding proactive execution. For the clauses on execution at written request, basing himself/herself on the number of written requests for judgment execution on the case-by-case basis, he/she may issue one or more than one judgment execution decision. b/ For a judgment or decision involving many persons with joint rights and/or obligations, the head of the judgment execution body may issue a common judgment execution decision for all of these persons. 2. The following cases shall be determined as lacking conditions for judgment execution: a/ The judgment debtor has neither property nor lawful income for judgment execution; b/ The judgment debtor has property of a value negligible for judgment execution; c/ The judgment debtor only has property which has been inventoried and put up on auction but remain unsalable and declined by the judgment creditor for judgment execution while the judgment debtor has no other valuable property; d/ The judgment debtor has property which, however, is not allowed to be inventoried or has not yet been disposed of as prescribed by law. Cases of properties which have not yet been disposed of (like inherited properties not yet divided, properties under joint ownership, properties the ownership of which is in dispute…) where the judgment execution body has guided the judgment creditors and/or the persons with related interests to initiate lawsuits requesting the Court to settle but they have not yet initiated lawsuits or the Court has not yet issued a decision on the disposal of such properties. e/ The judgment debtor is obliged to return the land but there exist on such land real estate which were lawfully built before the Court issues the judgment or decision which fails to mention the disposal of such immovable properties, thus disabling the judgment execution body to effect the land assignment under the Court’s decision or judgment. In this case, the judgment execution body shall have to propose in writing the competent People’s Procuracy or the People’s Court to lodge a protest aiming to remedy the mistake in the Court’s judgment or decision; f/ The judgment debtor is obliged to deliver a distinctive thing which, however, has been lost or damaged while the two parties fail to reach agreement on the payment mode, and the judgment execution body has guided them to initiate a lawsuit requesting the Court to settle the compensation but there is not yet any settlement decision from the Court; g/ The Court’s judgment or decision is unclear or contains some data errors or mistakes, which makes its execution impossible, the judgment execution body has proposed in writing the competent People’s Procuracy or the People’s Court to give explanations thereon or lodge a protest aiming to remedy such mistakes in the Court’s judgment or decision but there has been no result so far; h/ The obligation performance is in personam , if for objective reasons (sickness, overseas working for one year or more…), and the judgment debtor cannot perform such obligations himself/herself or his/her address has not yet been identified; i/ Other cases where the judgment execution body cannot effect the execution due to objective reasons. In order to determine a Court’s judgment or decision as lacking execution conditions, the execution judgment body shall, within two months from the date of issuing the judgment execution decision, directly verify the judgment execution conditions of the judgment debtor. Such verification must be recorded in writing, certified by the local authorities, the agency or organization where the judgment debtor resides, works or has property. Once a judgment is determined as lacking execution conditions, the judgment execution body shall, on the case-by-case basis, issue an appropriate decision, either to postpone, suspend or return the judgment execution requests. In cases of proactive judgment execution, it shall open a separate monitoring book and verify at least every quarter the judgment execution conditions of the involved parties. II. STATUTE OF LIMITATIONS FOR CIVIL JUDGMENT EXECUTION When applying the provision on the statute of limitations for civil judgment execution, the judgment execution bodies must pay attention to the following points: 1. The statute of limitations for civil judgment execution shall be counted from the date the judgments or decisions take legal effect. Where part of a judgment or decision is appealed or protested and the Court’s consideration of such appeal or protest does not affect other parts, the statute of limitations for execution of the unappealed or unprotested parts shall still be counted from the date the judgment or decision takes legal effect. For a judgment or decision which is executed immediately before it takes legal effect, the judgment execution body may issue a judgment execution decision and the judgment creditor may make a written request when the judgment has not yet taken legal effect, but the statute of limitations for judgment execution shall still be counted from the date such judgment or decision takes legal effect. 2. Where a judgment or decision specifies the time when the judgment debtor has to perform his/her obligation, the statute of limitations for judgment execution shall be counted from the date on which the obligation performance is due. For judgments and decisions which are executed on a periodical basis, the statute of limitations for judgment execution shall be counted for each period. 3. The statute of limitations for execution of judgments and decisions which took legal effect prior to January 1, 1990 (the date on which the 1989 Civil Judgment Execution Ordinance becomes effective) shall be as follows: - If not yet executed, the statute of limitations for judgment execution shall be counted from January 1, 1990. - If before January 1, 1990, such a judgment or decision had been put out for execution but had not yet been executed or had been executed only in part, the judgment execution body shall have to continue organizing the execution thereof; - If after January 1, 1990, the written requests for judgment execution have been returned because the judgment debtors do not have conditions for judgment execution, the statute of limitations for judgment execution shall be counted from the date the judgment debtors acquire conditions for judgment execution. III. AGREED AND VOLUNTARY EXECUTION OF JUDGMENTS 1. In the course of judgment execution, only individuals or private economic organizations may agree with one another on the contents of the judgment execution but such agreement must not be contrary to law and social ethics. Where the involved parties agree on abstention from requesting the judgment execution body to execute part or the whole of the Court’s judgment or decision, the judgment execution body shall make a record of the agreed details and issue a decision to suspend the execution of such part. 2. In the course of judgment execution, the involved parties may agree with one another on the time, venue and mode of judgment execution. The judgment execution body shall have to make a record clearly stating the agreed details and allow the involved parties to voluntarily execute such agreement. If the involved parties fail to voluntarily execute the agreed details, the judgment execution body shall effect the execution according to the Court’s judgment or decision. IV. INVENTORY, HAND-OVER FOR MAINTENANCE AND DISPOSAL OF PROPERTIES FOR JUDGMENT EXECUTION 1. Property inventory: a/ For properties for which the transfer, ownership and/or use right registration procedures must be completed, if there are grounds to determine that they have been lawfully bought by or donated to, the judgment debtors (accompanied with lawful sale and purchase papers, owner’s certification…) but the procedures for the transfer, ownership and/or use right registration of such properties have not yet been completed, the executors shall still be entitled to inventory them in order to secure the judgment execution. For the following cases where after the Court’s judgments or decisions are issued, and the judgment debtors have transferred all properties under their ownership, the executors shall still be entitled to inventory such properties and propose in writing the competent authorities to cancel such transactions. The judgment creditors and persons with related interests and obligations may request the competent authorities or initiate lawsuits to request the Court to cancel such transactions. b/ The inventory of dwelling houses shall be conducted only when other properties are not enough for judgment execution while the money amounts required for judgment execution are relatively large, thus requiring the inventory of dwelling houses, except cases where the judgment debtors request the inventory of their houses to secure the judgment execution. The determination of money amounts as relatively large should be based on the cost of living in each locality and the proportion of the money amounts required for judgment execution to the value of the house(s) at the time of inventory. In some special cases where the judgment debtors possess houses and land who have not yet been granted house ownership and land use right certificates but there are grounds to deem that such houses have been built and used by the judgment debtors in a stable manner without disputes, are not situated in the planned or to-be-relocated areas, who are eligible for consideration of granting of house ownership rights and land use rights, the judgment execution bodies may inventory such houses and land to secure the judgment execution. c/ The determination of common labor tools and daily-life essentials, which shall not be inventoried, should be based on the minimal labor conditions for each business line or trade or the minimum living conditions in the localities where the judgment debtors live, and such properties must be of small value. Essential common labor tools are minimum small-value labor tools in service of production, such as ploughs, harrows, hoes, shovels, pack-bikes, pedicabs… For valuable labor tools like motorbikes, cars, ships, boats, mechanical ploughs, grinders…, the executors shall still have to inventory and auction them for judgment execution and deduct a sum of money for the judgment debtors to buy other labor tools. Daily life essentials mean articles serving the minimum daily-life needs of the judgment debtors and their families, such as cooking pots, pans, bowls and plates, beds, cabinets, tables and desks, and other common articles. For valuable daily-life articles or jewelry like television sets, refrigerators, air-conditioners, washing machines, computers, gold rings…, the judgment execution bodies may still inventory them to secure the judgment execution. d/ Inventory of mortgaged or pledged properties For the judgment debtors’ properties which have been mortgaged or pledged lawfully in civil transactions, if no other properties are available and such properties are of a value larger than all the obligations secured under mortgage or pledge contracts, including costs related to the mortgaged or pledge properties plus expenses for the property inventory and auction, the executors may inventory them to secure the judgment execution even if the mortgage or pledge contracts are not due, but before inventorying such properties, the executors must notify the mortgagees or pledgees thereof. In cases of property inventory, if there arise disputes related to the inventoried properties, the judgment execution body must explain to the persons with related rights and interests on their right to initiate lawsuits to the Court within the time limit generally prescribed. If the cases are processed settled by the Court, the disposal of the inventoried properties shall be effected only after the Court’s dispute-settlement decisions take legal effect. 2. Hand-over of inventoried properties for maintenance a/ After inventorying properties, the executors shall hand over them to the judgment debtors, their relatives or the current managers or users of such properties for maintenance. If the judgment debtors, their relatives or the current managers or users of such properties refuse to maintain them or it is deemed that they may disperse and/or destroy such properties, the executors can hand over such properties to the functional bodies or hire the management thereof. For the above-mentioned cases of hand-over for maintenance and hired maintenance, written records must be made, clearly determining the state of the properties. b/ For the type of properties which are prescribed to be managed and maintained by other functional bodies, such as gold, silver, gems, cultural and art works…, after inventorying such properties, the judgment execution bodies shall hand them to the functional bodies for maintenance according to law provisions. 3. Disposal of inventoried properties a/ After the property inventory and valuation, if the judgment debtor and the judgment creditor can reach agreement on the receipt of the inventoried properties for judgment execution, the judgment execution body shall assign the inventoried properties to the judgment creditor for deduction into the judgment execution obligation. b/ For properties which are raw and fresh or quickly rot such as vegetables and fruits, fresh and raw foodstuffs…; after inventorying them, the judgment execution bodies shall immediately organize their sale in the presence of the representatives of the People’s Procuracy of the same level and the People’s Committee of the commune or ward where the properties are sold and make written record of the property sale. c/ In cases where houses are returned or handed to the purchasers according to the auctioning procedures or where the judgment creditors receive houses for judgment execution, the judgment execution bodies shall request the judgment debtors and/or their family members to remove on their own properties from the houses. If the judgment debtors and/or their family members do not voluntarily do so, the judgment execution bodies shall make a detailed list of properties, get the properties removed from the houses and request the judgment debtors and their family members to receive such properties. If the judgment debtors and/or their family members refuse to receive the properties, the judgment execution bodies shall hire the maintenance of such properties, notify such and fix an appropriate time (at least three months) for the judgment debtors and/or their family members to receive back their properties. Past the fixed time limit, if the judgment debtors and/or their family members fail to come and receive back their properties, the judgment execution bodies shall deal with such properties as follows: - For valuable properties, the judgment execution bodies shall organize their auction and deposit the proceeds therefrom into banks and concurrently notify the judgment debtors thereof for receiving such proceeds. Past one year after the date of such notice, if the judgment debtors still fail to come and receive the proceeds, the judgment execution bodies shall remit them into the State Treasury for confiscation into public fund. - For damaged properties, the judgment execution bodies shall proceed with the destruction thereof according to law provisions. Particularly for assorted papers, documents, certificates and diplomas or objects of spiritual value, the judgment execution bodies shall continue hiring the maintenance thereof. The property sale and maintenance expenses in the above-mentioned cases shall be borne by the judgment debtors. d/ Before the auction of the judgment debtors’ properties which are under joint ownership by other persons, the co-owners have the pre-emptive right to buy such properties within three months, for immovables, and within one month, for movables, at the prices fixed by the property valuation boards. Past the priority time limits, if the co-owners do not buy, such properties shall be auctioned according to general procedures. e/ For properties which remain unsalable after being put up for auction at least twice, the judgment execution bodies shall request the judgment creditors to receive them for judgment execution. The property receipt must adhere to the principle that the property recipients shall only enjoy a part of the properties’ value proportional to the amounts they may receive in the priority order and at the percentages of money payment for judgment execution as prescribed in the Ordinance on Execution of Civil Judgments and at Point g, Section 3, Part IV of this Circular, if the properties are sold out. f/ Where the judgment execution body authorizes the property auction to the Property Auction Center, it shall have to inform the involved parties thereof and monitor the contract performance by the Property Auction Center. g/ Payment of the property sale proceeds: - By the time of money payment for judgment execution, the proceeds from the sale of the judgment debtors’ properties shall be paid to all judgment creditors who have filed written requests for judgment execution in the order and at the percentages prescribed in the Ordinance on Execution of Civil Judgments despite the fact that the involved parties’ written requests for judgment execution are made at different points of time. - Where there are many judgment creditors but only some of them have made written requests for judgment execution and the judgment debtor has merely a single valuable property (house, land…), part of the proceeds from the sale of such property shall be temporarily deposited by the judgment execution body into a bank, which is proportional to the amount to be received by those judgment creditors who have not filed written requests and at the same time inform them of the right to file written requests for judgment execution and fix a time limit not exceeding three months for them to exercise this right. Past the notified time limit, if the judgment execution body does not receive any written requests from such creditors, the remaining amount shall be further paid to those who have already filed written requests for judgment execution. - The proceeds from the sale of lawfully mortgaged or pledged properties or properties which have been inventoried under the Court’s declaration as security for performance of a particular obligation, shall be used for prioritized payment for such obligation. - If the judgment debtors have no other valuable properties besides their dwelling houses which are the only places where they and their families live, when inventorying and auctioning such houses, the judgment execution body may, depending on the practical conditions of the involved parties and after consulting with the People’s Procuracy of the same level, deduct a sum of money as lodging support for the judgment debtors and their families. - Where either spouse is the judgment debtor, if the other spouse does not initiate a lawsuit requesting the Court to divide their common property, when selling such property, the judgment execution body shall pay the other spouse the proceeds from the property sale in accordance with the Law on Marriage and Family (without subtracting the property inventory and auction expenses). V. EXECUTION OF JOINT OBLIGATIONS AND OBLIGATIONS OF DECEASED JUDGMENT DEBTORS 1. Where under a Court’s judgment or decision the joint obligation does not clearly determine the obligation of each obligee, the judgment execution body shall request one or several joint obligees who has/have conditions to execute the judgment to perform the whole joint obligation. 2. Where under a Court’s judgment or decision the joint obligation clearly determines the obligation of each of the joint obligees and they all have conditions to execute the judgment, the judgement execution body shall request each obligee to fulfill his/her own obligation. If one of the joint obligees does not have conditions to execute the judgment, the judgment execution body shall request those who have conditions to fulfill such obligee’s obligation. 3. Anyone who has performed another person’s judgment execution obligation may request such person to pay for the obligation he/she has performed for the latter according to Article 304 of the Civil Code. 4. The performance of the property obligation of a deceased judgment debtor shall comply with the provisions of Article 640 of the Civil Code. VI. INSPECTION OF LAW OBSERVANCE AND THE RELATIONS of COORDINATION IN THE JUDGMENT EXECUTION WORK 1. The Procuracy shall inspect law observance in the auction of properties for judgment execution according to the provisions in Articles 19, 20 and 21 of the Law on Organization of the People’s Procuracy and the provisions of the Ordinance on Execution of Civil Judgments. Within seven days after signing contracts with the Property Auction Service Center for property auction for judgment execution, the judgment execution body shall have to notify such to the People’s Procuracy of the same level for inspection according to its function. 2. Coordination in the judgment execution work: a/ Annually, the leadership of the Supreme People’s Procuracy and the leadership of the Ministry of Justice shall meet at least once in late September or early October to draw experiences, discuss the measures to remedy mistakes, and reach agreement on the direction as well as measures to carry out the judgment execution work. b/ To assign the Judgment Execution Inspection Department and the Civil Judgment Execution Management Department to coordinate with each other in inspecting and supervising the civil judgment execution work in the localities at least once a year. c/ To assign the Judgment Execution Inspection Department and the Civil Judgment Execution Management Department to reach agreement on the statistical forms and data for reporting on the civil judgment execution results in March and October every year so that the two branches can present reports thereon before the National Assembly. d/ The leadership of the People’s Procuracy and the heads of the judgment execution bodies in the localities shall have to regularly coordinate with one another in order to well carry out the judgment execution work and inspect the judgment execution. e/ Where the People’s Procuracy withdraws judgment execution dossiers in order to discharge its inspection function, such must be made in writing. Within 30 days after receiving such dossiers, the People’s Procuracy shall have to notify the inspection results regarding the cases and return the dossiers to the judgment execution bodies so that the latter can have basis to continue the judgment execution. For complicated cases where the concerned branches need to exchange their opinions and reach agreement among themselves, the above-mentioned time limit must not also exceed 60 days. VII. ORGANIZATION OF IMPLEMENTATION 1. This Circular takes effect 15 days after its signing. 2. Any problems arising in the course of implementation should be promptly reported to the Ministry of Justice and the Supreme People’s Procuracy for solution. For the Minister of Justice Vice Minister NGUYEN VAN SAN For the Chairman of the Supreme People’s Procuracy Vice-chairman TRAN THU