ENSURING THE RIGHTS OF JUDGMENT DEBTORS WHEN COLLECTING CIVIL JUDGMENT ENFORCEMENT FEES AS REQUIRED FROM THE PRACTICE APPLIED TO VIETNAMESE COMMERCIAL BANKS

ABSTRACT

When the litigants request judgment enforcement, the judgment enforcement agency will issue the judgment enforcement decision upon request and the judgment enforcement process will begin to be carried out in accordance with the order and provisions of law until the execution of the court's judgments and decisions is completed, the competent agency or the litigants requests to suspend the judgment enforcement process. Thus, it is easy to see that this judgment enforcement process is carried out first of all for the interest of the litigants who have requested judgment enforcement. Therefore, when their request is partially or fully implemented, the litigants are obliged to pay the required judgment enforcement fee. Within the scope of the article, the author analyzes the current provisions of Vietnam's civil judgment enforcement law on collecting civil judgment enforcement fees for the form of judgment enforcement at the request of the litigants, specifically when the Judgment Creditor is a commercial bank, from which the author will point out the shortcomings of the current legal regulations on collecting civil judgment enforcement fees on request and make recommendations to improve the law on this issue in the near future.

АННОТАЦИЯ

Когда стороны запрашивают исполнение судебного решения, орган по исполнению судебного решения выдает решение о приведении судебного решения в исполнение, и процесс приведения судебного решения в исполнение начнет осуществляться в соответствии с порядком и положениями закона. Пока исполнение судебных решений не будет завершено, компетентный орган или стороны могут просить приостановить процесс приведения решения в исполнение. Таким образом, легко заметить, что этот процесс приведения в исполнение судебного решения осуществляется, в первую очередь, в интересах тех сторон, которые обратились с просьбой о приведении судебного решения в исполнение. Следовательно, когда их просьба частично или полностью удовлетворена, стороны обязаны оплатить требуемый сбор за исполнение судебного решения. В рамках статьи автор анализирует действующие положения закона Вьетнама об исполнении гражданских судебных решений о взыскании сборов, а именно, исполнения судебного решения по просьбе сторон судебного процесса, когда кредитором по решению суда является коммерческий банк. Автор статьи указывает на недостатки действующих правовых норм о взыскании сборов за исполнение гражданских судебных решений, и дает рекомендации по совершенствованию законодательства по этому вопросу.

Keywords: civil judgment enforcement fee, civil judgment enforcement fee upon request, Vietnam's civil judgment enforcement law.

Ключевые слова: сбор за приведение в исполнение гражданского решения; сбор за приведение в исполнение гражданского решения по запросу; закон Вьетнама о приведении в исполнение гражданского решения.

1. Overview of civil judgment enforcement fees:

On the basis of the provisions of the current Vietnam’s Civil Judgment Enforcement Law, it also stipulates that the Judgment Creditor in civil or commercial business cases when performing his/her judgment enforcement request for a legally effective judgment or decision to a competent civil judgment enforcement agency, he/she must pay judgment enforcement fee the civil judgment enforcement agency has fulfilled part or all of its request. The regulation on payment of civil judgment enforcement fees in Vietnam has only stopped at the level of collection to partially offset the State budget in the process of civil judgment enforcement of the people. This means that most of the cost of civil judgment enforcement in Vietnam up to the present time is still being paid attention and supported by the State budget.

In the member countries of the European Union, the collection of civil judgment enforcement fees on request is built on the principle of protecting the interests of the litigants, avoiding arbitrariness in the process of requesting judgment enforcement and ensure the fairness and stability of remuneration for judgment enforcement activities performed by judicial officers at the request of involved parties [2, p. 44].

1.1. Concept of collection of civil judgment enforcement fees:

The civil judgment enforcement process is carried out at the request of the litigants when they want their rights restored. In order to carry out this process, the civil judgment enforcement agency must organize the judgment enforcement and use the State budget to fulfill the litigants' requests. Therefore, the current civil judgment enforcement law stipulates that the litigants who have written requests for judgment enforcement must pay a certain amount of money to offset the budget used for the judgment enforcement process after the litigants requesting judgment enforcement receive the restored benefits from the judgment enforcement. This amount is called the civil judgment enforcement fee. According to the provisions of the Law on Fees and Charges 2015: “A fee is an amount of money that an organization or individual must pay in order to basically offset costs and serve as a service when assigned by state agencies, public non-business units and organizations to provide public services specified in the list of fees promulgated together with this law” [4]. 

Thus, judgment enforcement fee is an amount that the Judgment Creditor must pay into the State budget when he or she receives money or property under a judgment or decision of a court or a competent agency. It can be seen that the person responsible for paying the civil judgment enforcement fee is the Judgment Creditor, that is, the individual, agency or organization enjoying the rights and interests in the judgment or decision to be executed. In the above-mentioned concept, a subject is mentioned that is the Judgment Creditor and according to the provisions of the civil judgment enforcement law, in this case, it is defined as an individual, agency or organization enjoying rights and interests in judgments and decisions subject to judgment enforcement.

1.2. Meaning of collection of civil judgment enforcement fees:

In essence, the judgment enforcement fee is just an amount of money to offset a part of the investment and management costs of the organizations and individuals that have been provided to the beneficiaries, that is, the judgment enforcement fee is the amount that a judgment enforcer must pay when receiving material benefits from the operation of a civil judgment enforcement agency. The fee collection is direct reimbursement, so only when the Judgment Creditor receives material benefits that must be quantified in money, he/she must pay the fee, so the collection of judgment enforcement fees is important both from a legal and financial point of view [5, p. 344]. The on-demand civil judgment enforcement fee not only makes the litigants more aware and responsible in judgment enforcement, but also forces them to consider carefully before deciding to request judgment enforcement. From there, the civil judgment enforcement agency can significantly reduce the amount of work that would have to be done without collecting the judgment enforcement fee for the judgment enforcement agency. At the same time, civil judgment enforcement fees contribute to the state budget. For EU member states, the collection of civil judgment enforcement fees has two important meanings:

Firstly, to avoid arbitrariness and to ensure the protection of the interests of the parties: both the party who has to pay in advance fees, costs and disbursements (claimant) and the party who is ordered to pay and bear the costs of enforcement (debtor).

Secondly, it ensures equity and stability in the remuneration for the (enforcement) actions as performed by the judicial officer. This is considered an essential condition to safeguard the dignity and impartiality of the judicial officer. The payment of the fixed fees must provide the self-employed judicial officer with sufficient financial means to cover all their needs, the more since any other activities are prohibited. Thus, remuneration must ensure the independence and impartiality of the judicial officer [2, p. 44].

2. Fee collectors and rate of civil judgment enforcement fees

In principle, both the Judgment Creditor and the Judgment Debtor have the right to make a petition for judgment enforcement, but regardless of which subject, the judgment enforcement agency still for the sake of the debtor's legitimate rights and interests of the Judgment Creditor. Therefore, the collection of judgment enforcement fees is determined first of all on the principle that the Judgment Creditors have written requests, they must pay judgment enforcement fees for judgment enforcement amounts whose quota cost is calculated on the value of the property or the amount actually received by them. In case the judgment creditor makes a written request for judgment enforcement but has not yet received the property, he/she is not required to pay the required judgment enforcement fee. However, if the Judgment Creditor does not make a written request, but he/she is entitled to receive money and/or property, he/she will still have to bear the judgment enforcement fee at the prescribed rate.

2.1. Collectors of civil judgment enforcement fees

According to the provisions of Clause 7, Article 3, the Civil Judgment Enforcement Law of 2008 amended and supplemented in 2014 and Article 2, Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance, stipulating the collection rate, mode of collection, payment, management and use of civil judgment enforcement fees, the subject to pay civil judgment enforcement fees is the Judgment Creditor upon receipt of money and property according to the court's judgment or decision; decisions on handling of the competition case of the Council dealing with the competition case; judgments and decisions of commercial arbitration. In which, the judgment creditor is an individual, agency or organization enjoying the rights and interests in the judgment or decision to be enforced. In the EU member states, civil judgment enforcement fee collectors include the party requesting judgment enforcement and the party requested for judgment enforcement [2, p. 44].

Although the judgment debtor, upon receiving the judgment enforcement property, must pay the judgment enforcement fee, there are some cases where the actual amount received by the Judgment Creditor is not large but is essential for their minimum subsistence such as labor wages, job loss allowance, compensation for loss of life and health, etc., so Vietnam's civil judgment enforcement law has also provided for cases where the judgment creditor is not pay judgment enforcement fees on request [1]. Judgment creditors are not required to bear civil judgment enforcement fees when receiving money and property in the following cases:

Alimony; compensation for loss of life, health, honor and dignity; wages, labor wages; job loss allowance, severance allowance; social insurance payments; compensation for damage caused by dismissal or termination of labor contracts.

Funds for the implementation of the State's social policy programs on hunger eradication and poverty reduction, support for remote and disadvantaged areas, and special difficulties, funds directly serving the people's health care and education, not for business purposes, that the judgment creditors receive.

The received artifact has only spiritual meaning, associated with the recipient's identity, and cannot be exchanged.

Money or property value at the request of judgment enforcement must not exceed twice the base salary for cadres, civil servants, public employees and armed forces prescribed by the State.

Loan recovery for the social policy bank in case the bank lends to the poor and other policy beneficiaries.

Court judgments and decisions determining that there is no quota cost and no legal fees with quota cost are collected.

Money and property shall be returned to the litigants in case of proactive enforcement.

Money and property that litigants voluntarily execute within the voluntary judgment enforcement period (the time limit for voluntary judgment enforcement is 10 days from the date the judgment debtor receives the judgment enforcement decision or is notified valid judgment enforcement decisions) [3].

2.2. Charges for civil judgment enforcement upon request

Stemming from the purpose to ensure the legitimate rights and interests of the judgment debtor, the civil judgment enforcement will restore the legitimate rights and interests that the judgment debtor has infringed upon. Therefore, in principle, the basis for calculating the amount of judgment enforcement fees that will be collected is based on the value of the property or the amount actually received by the judgment creditor. According to the provisions of Article 4, Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance stipulating the collection rate, mode of collection, payment, management and use of civil judgment enforcement fees, the specific civil judgment enforcement fees are as follows: 

1. Judgment creditors must pay civil judgment enforcement fees as follows:

a) If the amount and value of property actually received from more than twice the base salary for cadres, civil servants, public employees and armed forces prescribed by the State up to 5,000,000,000 VND, the judgment enforcement fee civil is 3% of the amount, value of property actually received;

b) If the amount and value of property actually received is from over 5,000,000,000 VND to 7,000,000,000 VND, the civil judgment enforcement fee will be 150,000,000 VND plus 2% of the amount and the value of property actually received in excess of 5,000,000,000 VND;

c) If the amount and value of property actually received is from over 7,000,000,000 VND to 10,000,000,000 VND, the civil judgment enforcement fee will be 190,000,000 VND plus 1% of the amount and the value of property actually received in excess of 7,000,000,000 VND;

d) For the amount and value of property actually received from over 10,000,000,000 VND to 15,000,000,000 VND, the civil judgment enforcement fee will be 220,000,000 VND plus 0.5% of the amount and the value of property actually received in excess of 10,000,000,000 VND; 

đ) If the amount and value of property actually received is from over 15,000,000,000 VND, the civil judgment enforcement fee will be 245,000,000 plus 0.01% of the amount and the value of property actually received in excess of 15,000,000,000 VND.

3. For cases where many people are entitled to receive a specific property or the same sum of money according to a judgment or decision, but only one or a number of people have a judgment enforcement request that the enforcer has organized to hand over such property or sum of money to the requester or the requester's representative for management, such requester or representative must pay a civil judgment enforcement fee calculated on the entire value of money or property actually received at the rate specified in Clause 1 of this Article.

4. For cases where a civil judgment enforcement agency has issued a judgment enforcement decision but has not yet issued a coercive judgment enforcement decision or has issued a coercive judgment enforcement decision but has not yet carried out the enforcement of judgment enforcement but the litigants have personally handed over or received money or property to each other, the judgment creditor must pay one-third of the civil judgment enforcement fee specified in Clause 1 of this Article calculated on the actual received money and property, except for accordance with the provisions of Clause 8, Article 6 of this Circular.

5. In case the civil judgment enforcement agency has collected money or has carried out the enforcement of judgment enforcement, the judgment creditor must pay 100% of the civil judgment enforcement fee as prescribed in Clause 1 of this Article calculated on the amount of money and property actually received.

3. Practice on collection of civil judgment enforcement fees on request

3.1. Regulations on fee collection procedures

Judgment enforcement fee-collecting agency is a judgment-executing agency where the enforcement of a judgment or decision of a court or a competent agency is organized. The person who issues the decision to collect judgment enforcement fees is the Head of the judgment enforcement agency when paying money or property to the judgment creditor. For the fee to be collected many times, each time the fee is collected, the Head of the judgment enforcement agency shall issue a decision on collection of the judgment enforcement fee. When collecting fees, fee-collecting agencies must make and issue receipts to charge payers in accordance with current law. The time when the judgment creditor must pay the fee is when the money or property for enforcement is received, not when the petition is filed. In the EU member states and in particular in Bulgaria, the fee collection procedure is regulated to make advance payments for each enforcement action to be taken. The Bulgarian Supreme Court held that: “The Bulgarian Supreme Court was of the opinion that failure to pay the advance fees does not procedurally undermine the respective enforcement action, but systematic non-collection of advance fees is considered a disciplinary violation on behalf of the enforcement agent. Advance payment of fees by the creditor has been subject to professional debate in Bulgarian jurisprudence for the reason that it would increase the creditor’s discretion with regard to whether and to what extent enforcement action shall be taken” [2, p. 48].

The collection of civil judgment enforcement fees in Vietnam shall comply with the provisions of Clause 4, Article 5, Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance regulating the rate of collection, the mode of collection, payment, management and use of civil judgment enforcement fees. As follows:

a) In case the civil judgment enforcement agencies pay in cash, transfer or send by post to the judgment creditors, the deduction of the civil judgment enforcement fee amount paid by the judgment creditors shall be made before paying them.

b) In case the Court does not declare the value of the property or declares it but at the time of fee collection it is no longer appropriate (changes by more than 20%) compared with the market price, the the fee-collecting organization will value the property to determine the civil judgment enforcement fee payable by the judgment creditor. Valuation expenses shall be paid by civil judgment enforcement agencies from the source of retained civil judgment enforcement fees. At least 15 days before the property is handed over, the fee-collecting organization shall notify the amount of civil judgment enforcement fee that the judgment creditor must pay according to the provisions of this Circular…

3.2. Problems and recommendations for improvement of the law on collection of civil judgment enforcement fees as required

According to the provisions of Clause 4, Article 46 of Decree No. 62/2015/ND-CP dated July 18, 2015 of the Government of the Socialist Republic of Vietnam detailing and guiding the implementation of a number of articles of the law on civil judgment enforcement, which stipulates that civil judgment enforcement agencies shall collect judgment enforcement fees when paying money or handing over assets to judgment debtors and issuing receipts for collection of judgment enforcement fees. In case the judgment creditor fails to pay the judgment enforcement fee, the fee-collecting agency may apply security measures or coercive measures to collect the judgment enforcement fee, including the auction of property already assigned to the judgment creditors to ensure recovery of judgment enforcement fees. Expenses for property valuation and auction to collect fees shall be borne by the judgment creditors.  

Besides, in order to concretize regulations on collection of civil judgment enforcement fees in Decree No. 62/2015/ND-CP dated July 18, 2015 above, at Point a, Clause 4, Article 5 of Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance stipulating the rate of collection, the mode of collection, payment, management and use of civil judgment enforcement fees as prescribed: “Judgment enforcement agencies execute deducting the amount of civil judgment enforcement fees payable by the judgment creditors before paying them”. This regulation, in the author's opinion, is in conflict with Clause 4, Article 46 of Decree No. 62/2015/ND-CP dated July 18, 2015 of the Government detailing and guiding the implementation of a number of articles of the civil judgment enforcement law because in the spirit of the Decree, the collection of fees is done independently and can be done before or after the judgment enforcement agency pays money or property to the judgment creditors.

In case the judgment enforcement fee is collected after the judgment creditor receives the money or property for judgment enforcement: If the judgment creditor, after receiving the money or property, fails to pay the judgment enforcement fee as prescribed, the judgment enforcement fee-collecting agency has the right to apply security measures or coercive measures to collect judgment enforcement fees, including auctioning property already delivered to judgment creditors to ensure recovery of judgment enforcement fees.

In case the judgment enforcement agency collects the judgment enforcement fee upon request before the judgment creditor receives money or property according to the judgment or decision of a court or a competent agency, the fee collection procedure is as follows: The judgment enforcement agency shall deduct the required judgment enforcement fee before transferring the amount of money for property handling or the money paid by the judgment debtor to perform the obligation under the judgment and hand it over to the judgment creditor. The remaining amount after deduction of the required judgment enforcement fee will be transferred to the judgment creditor, so the actual transfer amount received by the judgment creditor will be lower than the amount that the judgment debtor has paid to the judgment enforcement agency to enforce the judgment or decision of a court or a competent agency. After the judgment creditor receives money and property from the judgment enforcement agency, the judgment creditor being an agency or organization must perform the accounting for at least 02 stages to ensure enough money transferred by the judgment enforcement agency, which are:

The first stage is to account for the amount actually received after the judgment enforcement agency deducts the required judgment enforcement fee to reduce the outstanding debt of the judgment debtor;

The second stage is to account for the judgment enforcement fees as required, which are deducted from the expenses of agencies and organizations to account for the reduction of outstanding debts of the judgment debtors.

The judgment creditor being an agency or organization must make such accounting in accordance with the law on accounting because the expenses to be paid by the agency or organization are the compulsory fees that agencies and organizations are obliged to pay when receiving money and property for judgment enforcement as requested, so when the judgment enforcement agency deducts the judgment enforcement fee as required and transfers it to the judgment creditor being an agency or organization, there will be cases where the judgment debtor does not account from his/her account the payable expenses of his/her agency or organization in order to reduce the payable amount of the judgment creditor corresponding to the deducted judgment enforcement fee, the amount of judgment enforcement fee at the request of the judgment creditor which is borne by the judgment debtor on behalf of the judgment creditor will affect the rights and interests of the judgment debtor.  

Thus, according to the author, it is necessary to amend the regulations on collection of judgment enforcement fees as required at Point a, Clause 4, Article 5 of Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance in the direction of:

1. In case the civil judgment enforcement agency pays in cash, by transfer or by post to the judgment creditor, it shall deduct the amount of civil judgment enforcement fee payable by the judgment creditor before paying them if the judgment creditor is an individual. 
2. For cases where the judgment enforcer is an agency or organization, the judgment enforcement agency shall send a notice of payment of judgment enforcement fee upon request to such agency or organization before paying the money for judgment enforcement to them and request the judgment creditor to pay the judgment enforcement fee within a certain time limit. Judgment enforcement agencies shall transfer the collected enforcement money to the judgment creditor as soon as the time limit expires for requesting the judgment creditor to fulfill the obligation to pay the judgment enforcement fee as requested. In cases where the time limit has passed and these agencies or organizations fail to pay the judgment enforcement fees as prescribed, the judgment enforcement agencies may apply security measures or coercive measures to collect the judgment enforcement fees, including auctioning off assets already delivered to judgment creditors to ensure recovery of judgment enforcement fees.

Such provisions will ensure the lawful rights and interests of the judgment debtor, and limit the situation where the judgment debtor has to bear the judgment enforcement fee upon request on behalf of the judgment-executing agency or organization. In addition, such regulations will also create consistency between Decree No. 62/2015/ND-CP dated July 18, 2015 of the Government detailing and guiding the implementation of a number of articles of the law on judgment enforcement. and Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance of the Socialist Republic of Vietnam stipulating the collection rate, mode of collection, payment, management and use of civil judgment enforcement fees in the course of collecting civil judgment enforcement fees upon request.

References:

1. Circular No. 216/2016/TT-BTC dated November 10, 2016 of the Ministry of Finance of the Socialist Republic of Vietnam stipulating the collection rate, mode of collection, payment, management and use of civil judgment enforcement fees. Url: https://english.luatvietnam.vn/circular-no-216-2016-tt-btc-dated-november-10-2016-of-the-ministry-of-finance-on-prescribing-the-rates-collection-remittance-management-and-use-o-111245-doc1.html (date of application 24.12.2022)
2. Centre for European Constitutional Law. Comparative Report Civil enforcement in the EU: a comparative overview, 2021. Url: https://www.enforcementatlas.eu/wp-content/uploads/2021/03/EU-Enforcement-Atlas-Comparative-Report.pdf (date of application 24.12.2022)
3. Civil Judgment Enforcement Law No. 28/2008/QH12 of the National Assembly of the Socialist Republic of Vietnam dated November 14, 2008, as amended and supplemented in 2014. Url: https://fsvps.gov.ru/fsvps-docs/ru/importExport/vietnam/files/  (date of application 24.12.2022)
4. Law on Fees and Charges No. 97/2015/QH13 dated November 25, 2015 of the National Assembly of the Socialist Republic of Vietnam. Url: https://fsvps.gov.ru/fsvps-docs/ru/importExport/vietnam/files/  (date of application 24.12.2022)
5. Hanoi Law University. Textbook of Vietnam's civil judgment enforcement law. Hanoi: Public Security Publishing House, 2021. Url: https://fsvps.gov.ru/fsvps-docs/ru/importExport/vietnam/files/ (date of application 24.12.2022)