Decree No. 44/2020/ND-CP coercion of judgment execution against commercial legal persons

DECREE

Prescribing coercion of judgment execution against commercial legal persons^[1]

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

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

At the proposal of the Minister of Public Security;

The Government promulgates the Decree prescribing coerced judgment execution against commercial legal persons.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

1. This Decree provides principles, measures, order and procedures for application of measures to coerce judgment execution against commercial legal persons under Article 163 of the Law on Execution of Criminal Judgments.

2. Coerced execution of the penalty of fine prescribed in Article 77, and of judicial measures prescribed at Point a, Clause 1, Article 82, of the Penal Code against commercial legal persons is not regulated by this Decree.

Article 2.Subjects of application

1. Commercial legal persons that fail to serve or fully serve legally effective court judgments or rulings.

2. Criminal judgment execution agencies of provincial-level Departments of Public Security, military zone-level criminal judgment execution agencies (below collectively referred to as competent criminal judgment execution agencies), state management agencies in charge of commercial legal persons, and other agencies, organizations and individuals involved in coercion of judgment execution.

Article 3.Principles of coercion of judgment execution against commercial legal persons

1. Coercion may only be applied when there is a written decision on coercion of a competent criminal judgment execution agency.

2. Decisions on application of coercive measures shall be based on penalties and judicial measures applied to commercial legal persons; contents, characteristics and level of, and conditions for, execution of coercion decisions, and practical conditions of localities.

3. The time limit for application of coercive measures to secure judgment execution must not exceed that for serving penalties under legally effective court judgments or rulings; the time limit for securing execution of judicial measures shall be determined when such judicial measures are completely executed.

4. A commercial legal person may be subject to one or several of coercive measures at the same time if the application of one coercive measure is not enough to secure judgment execution.

5. Lawful rights and interests of commercial legal persons and related organizations and individuals in coercion of judgment execution shall be guaranteed.

Article 4.Measures to coerce judgment execution against commercial legal persons

Measures to coerce judgment execution to be applied to commercial legal persons include:

1. Freezing of accounts (monetary accounts, securities accounts).

2. Distraint of assets of value equivalent to money amounts needed to secure coerced execution of judicial measures (distraint of assets).

3. Temporary seizure of documents and electronic data-containing devices; temporary seizure or revocation of seals of commercial legal persons.

Article 5.Making of minutes of failure of commercial legal persons to serve or fully serve legally effective court judgments or rulings

1. In the course of inspecting and supervising the serving of sentences by commercial legal persons, if detecting that such commercial legal persons fail to serve or fully serve legally effective court judgments or rulings, a competent criminal judgment execution agency shall assume the prime responsibility for, and coordinate with state management agencies in charge of commercial legal persons in, making a minutes of such failure as witnessed by at-law representatives of commercial legal persons and representatives of local administrations.

In case at-law representatives of commercial legal persons are absent or refuse to sign the minutes, such minutes shall still be made clearly stating their absence or refusal.

2. A minutes must clearly state the date and place of and ground for its making; full name and position of its maker; name, address and tax identification number of the concerned commercial legal person; results of serving of sentence by the commercial legal person; and opinions of the at-law representative of the commercial legal person and related agencies, organizations and individuals (if any).

3. The minutes mentioned in Clause 1 of this Article constitutes one of the grounds for competent criminal judgment execution agencies to issue coercion decisions.

Article 6.Sending of decisions on coerced judgment execution against commercial legal persons

Within 3 working days after issuing a coercion decision, a competent criminal judgment execution agency shall send such decision to the court that has issued the judgment execution decision, same-level procuracy, state management agency in charge of the concerned commercial legal person, the concerned commercial legal person and its at-law representative, the national business registration portal, and other related organizations and individuals. In case of execution of the coercive measures specified in Clauses 2 and 3, Article 4 of this Decree, such coercion decision shall, at least 3 working days before being executed, be concurrently sent to the chairperson of the commune-level People’s Committee of the locality where distrained assets or temporarily seized documents and electronic data-containing devices or temporarily seized or revoked seals are situated for coordinated execution.

Article 7.Summoning of at-law representatives of, and notification of execution of judgment execution coercion decisions to, commercial legal persons

1. Within 3 working days after issuing a coercion decision against a sentence-serving commercial legal person, a competent criminal judgment execution agency shall summon the at-law representative of such commercial legal person to the former’s office for notification of such decision. When summoned by the competent criminal judgment execution agency, the at-law representative of the commercial legal person shall show himself/herself up, unless he/she cannot do so due to aforce majeureevent or another external obstacle.

2. In case the at-law representative of a commercial legal person is duly summoned but fails to show himself/herself up, the competent criminal judgment execution agency shall make a minutes of his/her absence as witnessed and certified by the local administration’s representative and regard him/her as having been notified of execution of the coercion decision.

Article 8.Coercion in case of transfer of the judgment execution obligation of reorganized commercial legal persons

In case a commercial legal person that is serving a judgment execution coercion decision of a competent criminal judgment execution agency is divided, split up, consolidated, merged or transformed in accordance with law, its successor that inherits its rights and obligations shall continue executing such coercion decision.

Article 9.Responsibility to organize execution of coercion decisions

1. Competent criminal judgment execution agencies shall organize execution of coercion decisions; and promptly announce relevant decisions issued in the course of coercion on their websites.

2. State management agencies in charge of commercial legal persons and other related agencies and organizations shall, within the ambit of their functions and tasks, coordinate with competent criminal judgment execution agencies upon the latter’s request in organizing execution of coercion decisions; and announce on their portals or websites the decisions issued by competent criminal judgment execution agencies in the course of coercion upon receiving them.

3. The agency managing the national business registration portal shall publicize decisions issued by competent criminal judgment execution agencies in the course of coercion on such portal upon receiving them.

Chapter II

ORDER AND PROCEDURES FOR COERCION

Section 1

FREEZING OF ACCOUNTS

Article 10.Grounds for issuance of decisions on freezing of accounts

The issuance of a decision on freezing of accounts shall be based on:

1. A legally effective court judgment or ruling;

2. A minutes made under Article 5 of this Decree;

3. The fact that the sentence-serving commercial legal person has accounts at credit institutions, State Treasury offices, securities companies or the Vietnam Securities Depository (below referred to as accounts).

4. Documents verifying information on accounts of the commercial legal person.

Article 11.Cases of application of the measure of freezing of accounts

The measure of freezing of accounts may be applied in the following cases:

1. Coercion of the serving of the penalty of operation suspension for a definite term (in case of suspension from operation in all fields).

2. Coercion of the serving of the penalty of prohibition from doing business or operating in certain fields (in case of prohibition from doing business or operating in all fields); or prohibition from raising capital.

3. Coercion of the serving of judicial measures.

Article 12.Verification of information about accounts of commercial legal persons

1. Within 3 working days after making a minutes under Article 5 of this Decree, a competent criminal judgment execution agency shall issue a decision on freezing of accounts to request credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository to provide information about accounts of the concerned commercial legal person in accordance with law. The competent criminal judgment execution agency shall keep such information confidential and may only use such information in accordance with law.

2. A commercial legal person subject to a coercive measure shall notify the competent criminal judgment execution agency that has issued the decision on freezing of accounts of names of credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository where it opens its accounts, numbers of its accounts and other information about its accounts upon request.

Article 13.Issuance and sending of decisions on freezing of accounts

1. Within 3 working days after completing the verification of information about accounts of a commercial legal person, the head of a competent criminal judgment execution agency shall issue a decision on freezing of accounts.

For the cases specified in Clauses 1 and 2, Article 11 of this Decree, a competent criminal judgment execution agency shall issue a decision on freezing of whole accounts. For the case specified in Clause 3, Article 11 of this Decree, it shall issue a decision on freezing of money or securities amounts on accounts equivalent to money amounts needed to execute the judicial measure and expenses for organizing the coercion.

2. A decision on freezing of accounts must have the following principal contents: number and date of issuance of the decision; full name, position and agency of the issuer; name, address, enterprise identification number and tax identification number of the commercial legal person whose accounts are to be frozen; numbers of to-be-frozen accounts, purposes of freezing, names of to-be-frozen accounts, scope of freezing, money or securities amounts to be frozen, starting time of freezing, duration of freezing, responsibility of credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository, and other information (if any); signature of the decision issuer and seal of the competent criminal judgment execution agency.

3. Decisions on freezing of accounts shall be sent and notified under Articles 6 and 7 of this Decree.

Article 14.Responsibilities of credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository where commercial legal persons open their accounts

1. Within 3 working days after receiving a decision on freezing of accounts from a competent criminal judgment execution agency, credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository where the concerned commercial legal person opens its accounts shall freeze such accounts.

2. Credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository shall, within 3 working days after freezing accounts,  notify such freezing to the commercial legal person being the account holder, and report in writing results of the freezing of accounts to the competent criminal judgment execution agency within 3 working days after such notification.

Article 15.Deduction of money amounts on accounts, handling of securities amounts on securities accounts

1. Heads of criminal judgment execution agencies shall issue decisions on deduction of money amounts on accounts of commercial legal persons to secure execution of the judicial measures specified at Points b and c, Clause 1, Article 82 of the Penal Code.

2. Deducted money amounts must not exceed money amounts needed to execute judicial measures and expenses for organizing the coercion.

3. Upon receiving a decision on deduction of money amounts on accounts of a commercial legal person subject to a judicial measure, credit institutions and State Treasury offices currently managing accounts of the commercial legal person, and securities companies where the commercial legal person opens its securities accounts shall deduct money amounts on such accounts and transfer them to a competent criminal judgment execution agency for organizing coerced execution of the judicial measure.

4. Security for execution of a judicial measure in case a commercial legal person has securities amounts on its securities accounts must comply with current relevant regulations.

Article 16.Termination of freezing of accounts

1. Within 3 working days after a commercial legal person completely serves a court judgment or ruling or right after agencies and organizations completely fulfill a request of a competent criminal judgment execution agency for deduction of money amounts on accounts or handling of securities amounts on securities accounts of the commercial legal person, the competent criminal judgment execution agency shall terminate the freezing of such accounts.

The termination of the freezing of accounts shall be carried out under decisions of competent criminal judgment execution agencies.

2. After issuing a decision on termination of the freezing of accounts, a competent criminal judgment execution agency shall send it to credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository currently managing accounts of the concerned commercial legal person for execution.

3. Credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository currently managing accounts of a commercial legal person shall terminate the freezing of such accounts upon receiving a decision on termination of the freezing of accounts, and notify in writing the termination of the freezing of accounts to the competent criminal judgment execution agency and sentence-serving commercial legal person within 3 working days from the date of termination of the freezing of accounts.

4. Decisions on termination of the freezing of accounts shall also be sent to the agencies, organizations and individuals specified in Article 6 of this Decree.

Section 2

DISTRAINT OF ASSETS

Article 17.Grounds for issuance of decisions on distraint of assets

The issuance of a decision on distraint of assets shall be based on:

1. A legally effective court judgment or ruling.

2. A minutes made under Article 5 of this Decree.

3. The fact that the sentence-serving commercial legal person has no accounts or money amounts on its accounts at credit institutions, State Treasury offices, securities companies and the Vietnam Securities Depository are not enough to secure coerced execution of a judicial measure.

4. Documents verifying information about assets of the commercial legal person.

Article 18.Cases of application of the measure of distraint of assets

The measure of distraint of assets shall be applied to secure coerced execution of the judicial measures specified at Points b and c, Clause 1, Article 82 of the Penal Code.

Article 19.Verification of information about assets of commercial legal persons

1. Competent criminal judgment execution agencies shall verify information about assets of commercial legal persons subject to coercion.

2. Related agencies, units, organizations and individuals shall provide information about assets of commercial legal persons subject to coercion upon request of competent criminal judgment execution agencies.

Article 20.Assets that may not be distrained

1. Assets banned from circulation in accordance with law; assets to serve national defense, security or public interests; assets allocated by the state budget to agencies and organizations.

2. Medicines to serve disease prevention and treatment for employees; food, foodstuffs, tools and other assets used to serve meals for employees.

3. Nurseries, schools and medical establishments, and their equipment, means and assets, unless they are assets for business operation.

4. Equipment, means and tools to be used to ensure occupational safety, fire and explosion prevention and fighting, and environmental pollution prevention and control.

Article 21.Distraint of assets currently in pledge or mortgage

1. In case a commercial legal person has no other assets or still has assets but their value is not enough for judgment execution, a criminal judgment execution agency may distrain and handle assets of such commercial legal person currently in pledge or mortgage if the value of such assets is larger than the secured obligation and expenses for coercion of judgment execution.

2. At least 2 days before distraining assets currently in pledge or mortgage, a criminal judgment execution agency shall notify such to the pledgee or mortgagee.

Article 22.Distraint of assets of commercial legal persons currently held by third parties

1. In case of determining that a third party is currently holding assets of a commercial legal person, even assets identified under other court judgments or rulings, a competent criminal judgment execution agency shall issue a decision on distraint of such assets. In case the third party is not willing to hand over assets, the competent criminal judgment execution agency shall coerce handover of assets for judgment execution.

2. In case distrained assets are currently for lease, lessees may continue leasing them under signed contracts.

Article 23.Distraint of capital contributions

Competent criminal judgment execution agencies shall request individuals, agencies and organizations to whom/which commercial legal persons have made capital contributions to provide information about such capital contributions in order to distrain them. In case of necessity, competent criminal judgment execution agencies may request competent agencies to identify capital contributions of commercial legal persons and solicit organizations or individuals with appropriate expertise to valuate capital contributions of commercial legal persons for coercion of judgment execution.

Article 24.Distraint of means of transport

1. In case of distraint of means of transport of commercial legal persons, competent criminal judgment execution agencies shall request the commercial legal persons and persons currently managing and using such means of transport to hand over registration papers thereof, if any.

2. Competent criminal judgment execution agencies may request competent agencies to prohibit the transfer, pledge, mortgage or lease of distrained means of transport or restrict the use of distrained means of transport on roads.

3. The distraint of aircraft and ships for judgment execution must comply with regulations on arrest of aircraft and ships.

Article 25.Distraint, use and exploitation of intellectual property rights

1. Competent criminal judgment execution agencies shall issue decisions on distraint of intellectual property rights held by commercial legal persons.

In case a commercial legal person holding intellectual property rights licenses the right to use its intellectual property rights to another agency, organization or individual, such rights shall still be distrained.

2. When distraining intellectual property rights of a commercial legal person, a competent criminal judgment execution agency may, depending on subject matters of intellectual property rights, seize papers related to such intellectual property rights.

3. In case the State decides to require an intellectual property rights holder being a commercial legal person to transfer his/her/its rights to another agency, organization or individual for use for a certain period in order to achieve national defense or security objectives, or ensure people’s livelihood or the State’s interests or public interests as provided in the Law on Intellectual Property, a competent criminal judgment execution agency may not distrain intellectual property rights of such commercial legal person during the period of compulsory transfer.

4. Competent criminal judgment execution agencies shall decide to permit agencies, organizations and individuals to use and exploit intellectual property rights. These agencies, organizations and individuals shall remit the proceeds after subtracting necessary expenses to criminal judgment execution agencies for securing execution of judicial measures.

In case of necessity, competent criminal judgment execution agencies may request specialized or professional organizations in charge of intellectual property to collect and manage revenues and profits earned from the use and exploitation of intellectual property rights of commercial legal persons.

5. In case a commercial legal person has licensed its intellectual property rights to another agency, organization or individual but has received no or only part of royalty from the licensee, a competent criminal judgment execution agency shall issue a decision to compel the licensee to fully pay the royalty in order to secure the execution of a judicial measure.

Article 26.Distraint of assets being land use rights and assets subject to ownership registration or secured transaction registration

1. When distraining land use rights, a competent criminal judgment execution agency shall request the concerned commercial legal person or person currently managing papers on land use rights to submit such papers to the former. To be distrained, land use rights of a commercial legal person must be those eligible for transfer in accordance with law.

2. When distraining rights to use land with attached assets under ownership of a commercial legal person, both land use rights and land-attached assets shall all be distrained.

In case assets attached to land of the commercial legal person are under ownership of another person, the competent criminal judgment execution agency shall distrain only land use rights and notify such to the person owning land-attached assets.

3. Before distraining assets being land use rights or assets subject to ownership registration or secured transaction registration in accordance with law, a competent criminal judgment execution agency shall request the registry office to provide information about registered assets or transactions.

4. After distraining an asset, a criminal judgment execution agency shall notify in writing the distraint of such asset to the registry office.

An asset or secured transaction registry office shall suspend or stop fulfilling requests related to transactions over assets of a commercial legal person registered with the former upon receiving a request of a competent criminal judgment execution agency.

Article 27.Distraint of land-attached assets

When distraining assets being construction works attached to land, criminal judgment execution agencies shall distrain also land use rights, except where land use rights are not eligible for distraint as prescribed by law or the separation of distrained assets from land does not considerably reduce the value of such assets.

Article 28.Issuance and sending of decisions on distraint of assets

1. Within 3 working days after completing the verification of information about assets of a commercial legal person, the head of a competent criminal judgment execution agency shall issue a decision on distraint of assets.

2. A decision on distrain of assets must have the following principal contents: number and date of and ground for issuance of the decision; full name, position and agency of the decision issuer; name, address, enterprise identification number and tax identification number of the commercial legal person having its assets distrained; money amounts and assets that need to be distrained; place of distraint; signature of the decision issuer and seal of the competent criminal judgment execution agency.

3. The sending and notification of decisions on distraint of assets must comply with Articles 6 and 7 of this Decree.

Article 29.Organization of distraint of assets

1. The distraint of assets shall be carried out from 8:00 to 17:00, except weekends and public holidays in accordance with law and other special cases specified by the Government.

2. Competent criminal judgment execution agencies shall assume the prime responsibility for distraint.

3. When distraining assets, at-law representatives of concerned commercial legal persons and organizations and individuals that have their assets distrained, representatives of administrations of the localities where to-be-distrained assets are situated, and witnesses must show up. In case at-law representatives of concerned commercial legal persons and organizations and individuals that have their assets distrained are absent though having been summoned or duly notified, the distraint of assets shall still be carried out and minutes of absence shall be made as witnessed by representatives of administrations of the localities where distrained assets are situated and of state management agencies in charge of commercial legal persons.

4. It is permitted to distrain only assets of commercial legal persons subject to coercion with the value of such assets equivalent to money amounts needed to execute judicial measures and expenses for organization of coercion.

5. Assets that are co-owned by commercial legal persons subject to coercion and other persons may only be distrained if the value of assets of the commercial legal persons is not enough to execute decisions on distraint of assets. Disputed assets shall still be distrained with explanations about the right to initiate lawsuits according to civil procedures given to asset co-owners.

A competent criminal judgment execution agency shall publicize the time and place of distraint to asset co-owners. Upon expiration of the time limit of 90 days from the date of distraint, if no one initiates a lawsuit, distrained assets shall be put for auction in accordance with the law on asset auction.

Article 30.Minutes of distraint of assets

1. The distraint of assets shall be recorded in minutes. Such a minutes must clearly state the time and place of distraint of assets; competent criminal judgment execution agency assuming the prime responsibility for distraint; at-law representative of the commercial legal person and organizations and individuals that have their assets distrained or their lawful representatives; witnesses; representatives of administrations of the localities where distrained assets are situated; names, and description of conditions and characteristics of distrained assets.

2. Representative of the competent criminal judgment execution agency, at-law representative of the concerned commercial legal person, organizations and individuals that have their assets distrained or their lawful representatives, representatives of local administrations and witnesses shall sign the minutes. In case any of these persons is absent or refuses to sign the minutes, the minutes must record such absence or refusal, clearly stating the reason.

3. A minutes of distraint of assets shall be made in 2 copies of equal validity, of which one shall be kept by the competent criminal judgment execution agency that has issued the coercion decision and the other shall be handed over to the at-law representative of the concerned commercial legal person.

Article 31.Handover of distrained assets for preservation

1. A competent criminal judgment execution agency that carries out distraint of assets shall:

a/ Handover the assets to the concerned commercial legal person or person currently managing and using such assets for preservation;

b/ Handover the assets to an organization or individual that has conditions for preservation; or,

c/ Handover the assets to one of co-owners for preservation, for assets under co-ownership.

2. Assets being gold, silver, precious metals, gems or foreign currencies shall be temporarily handed over to State Treasury offices for management. Other assets shall, on a case-by-case basis, be temporarily handed over to specialized state management agencies for management.

3. Upon handover of distrained assets for preservation, competent criminal judgment execution agencies shall make minutes of handover. Such a minutes must clearly state the time of handover; at-law representative of the commercial legal person subject to coercion, person assigned to preserve the assets, and witness of the handover; quantity and state (quality) of assets; and rights and obligations of the person assigned to preserve assets, and shall be signed on the bottom of every page.

The competent criminal judgment execution agency, person assigned to preserve assets, at-law representative of the commercial legal person subject to coercion and witness shall sign the minutes. Multiple-sheet minutes shall be signed on every sheet. In case one of above persons is absent or refuses to sign the minutes, the minutes must record such absence or refusal, clearly stating the reason.

The person assigned to preserve assets, at-law representative of the commercial legal person subject to coercion, witness, and person assuming the prime responsibility for distraint shall each keep one copy of the minutes.

4. Persons assigned to preserve assets, except those specified at Point a, Clause 1 of this Article, may have actual reasonable expenses for preservation of assets paid.

5. Persons assigned to preserve assets that cause damage to, alter, lose or destroy such assets shall pay compensations and, depending on the nature and severity of their violations, be handled in accordance with law.

Article 32.Valuation of distrained assets

1. The valuation of distrained assets shall be carried out at offices of commercial legal persons that have their assets distrained or places where distrained assets are stored, unless it is required to set up an asset valuation council or the valuation is carried out by a price appraisal organization.

2. Distrained assets shall be valuated under agreements between competent criminal judgment execution agencies and at-law representatives of commercial legal persons subject to coercion and asset co-owners in case of distraint of assets under co-ownership. The time limit for the parties to reach an agreement on asset prices is 5 working days after assets are distrained.

In case the parties cannot reach an agreement on asset prices, within 10 working days after assets are distrained, a competent criminal judgment execution agency shall issue a decision to set up an asset valuation council or sign a service contract with a price appraisal organization. An asset valuation council shall be composed of a chairperson being the head of a competent criminal judgment execution agency and members being representatives of a finance agency of the same level with the criminal judgment execution agency and related specialized agencies.

Within 7 working days after an asset valuation council is set up or a service contract is signed with a price appraisal organization, such council or organization shall carry out asset valuation. Asset valuation shall be based on market prices of assets at the time of valuation. For assets subject to price management by the State, valuation shall be based on their prices set by the State.

3. Asset valuation shall be recorded in a minutes, clearly stating the time, place and method of valuation, valuation participants, names and value of valuated assets, and signatures of valuation participants and at-law representative of the concerned commercial legal person.

Article 33.Delivery of distrained assets for auction

1. For assets distrained for auction, reserve prices shall be determined under Article 32 of this Decree. Within 20 working days after assets are distrained, the persons who have issued coercion decisions shall sign auction contracts with professional auction houses for auction of such assets. In case of failure to sign a service contract with a professional auction house, an asset auction council shall be set up.

Auction of distrained assets shall be carried out in accordance with the law on asset auction.

2. After signing a contract on auction of assets, a competent criminal judgment execution agency shall deliver distrained assets for auction. The delivery of distrained assets for auction shall be recorded in a minutes which must clearly state the time of delivery; deliverer and recipient and their signatures; and quantity and state of delivered assets. A dossier of delivery of distrained assets to an agency responsible for auction must comprise a decision on coercion of distraint; documents and papers of title and evidencing lawful use rights (if any); document on asset valuation and minutes of asset delivery.

3. In case distrained assets are bulky cargoes or of a large quantity while agencies responsible for auction thereof have no places for storage, after completing procedures for delivery, contracts on asset preservation may be signed with the parties currently holding such assets. Expenses for performance of preservation contracts shall be covered by the proceeds from auction of assets.

4. Co-owners of auctioned assets under co-ownership are entitled to purchase such assets first.

5. In case the proceeds from auction of assets are larger than money amounts needed to secure execution of judicial measures and expenses for coercion, within 10 working days from the date of auction, competent criminal judgment execution agencies shall carry out procedures for returning the surplus to the commercial legal persons subject to coercion and record such in minutes of delivery and receipt.

Article 34.Transfer of asset ownership

1. Purchasers of distrained assets are recognized and have their ownership over such assets protected by law.

2. Competent state agencies shall carry out procedures for transfer of asset ownership to purchasers in accordance with law.

3. A dossier for transfer of asset ownership must comprise:

a/ A copy of the decision on coercion by the measure of distraint of assets for auction;

b/ A minutes of auction of assets;

c/ Other papers related to assets (if any).

Section 3

TEMPORARY SEIZURE OF DOCUMENTS AND ELECTRONIC DATA-CONTAINING DEVICES; TEMPORARY SEIZURE OR REVOCATION OF SEALS OF COMMERCIAL LEGAL PERSONS

Article 35.Grounds for issuance of decisions on temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of seals of commercial legal persons

The issuance of a decision on temporary seizure of documents and electronic data-containing devices or temporary seizure or revocation of the seal of a commercial legal person shall be based on:

a/ A legally effective court judgment or ruling;

b/ A minutes made under Article 5 of this Decree.

Article 36.Cases subject to application of the measure of temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of seals

1. Temporary seizure of documents and electronic data-containing devices or seals of commercial legal persons shall be applied in cases of coerced serving of the penalty of suspension from operation for a definite term; prohibition from doing business or operating in certain fields; or prohibition from raising capital under legally effective court judgments or rulings.

Only documents and electronic data-containing devices related to fields of operation of commercial legal persons subject to coercion of judgment execution under legally effective court judgments or rulings shall be temporarily seized.

2. Revocation of seals of commercial legal persons shall be applied in cases of coerced serving of the penalty of termination of operation.

Article 37.Issuance and sending of decisions on temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of seals of commercial legal persons

1. Within 3 working days from the date of making a minutes under Article 5 of this Decree, the head of a competent criminal judgment execution agency shall issue a decision on temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of the seal of the concerned commercial legal person.

2. A decision on temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of the seal of a commercial legal person must have the following principal contents: serial number, date, and grounds for issuance of the decision; full name, position and agency of the decision issuer; name, address, enterprise identification number and tax identification number of the commercial legal person; temporarily seized documents and electronic data-containing devices, or temporarily seized or revoked seal of the commercial legal person; place of temporary seizure or revocation; signature of the decision issuer and seal of the competent criminal judgment execution agency.

3. The sending and notification of decisions on temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of seals of commercial legal persons shall be carried out under Articles 6 and 7 of this Decree.

Article 38.Organization of execution of decisions on temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of seals of commercial legal persons

1. Preparation for temporary seizure of documents and electronic data-containing devices; or temporary seizure or revocation of seals of commercial legal persons

a/ Before documents and electronic data-containing devices or seals of commercial legal persons are temporarily seized or revoked, they shall be sealed up;

b/ Competent criminal judgment execution agencies that assume the prime responsibility for sealing up documents and electronic data-containing devices or seals of commercial legal persons shall notify the sealing to at-law representatives of such commercial legal persons, and representatives of agencies, organizations and individuals with interests, obligations and responsibilities related to such documents, devices and seals, and invite representatives of administrations of the localities where the sealing is carried out to witness it.

c/ Competent criminal judgment execution agencies that assume the prime responsibility for sealing up documents and electronic data-containing devices or seals of commercial legal persons shall direct preparation of tools and means necessary for the sealing.

2. Order of sealing up documents and electronic data-containing devices or seals of commercial legal persons

a/ Checking for specific, adequate and accurate description of the actual state of documents and electronic data-containing devices or seals of commercial legal persons in minutes of sealing;

b/ Packaging or wrapping documents and electronic data-containing devices or seals of commercial legal persons which need to be sealed up;

c/ Notifying the sealing to at-law representatives of commercial legal persons, representatives of agencies, organizations and individuals with interests, obligations and responsibilities related to such documents, devices and seals, and representatives of administrations of the localities where the sealing is carried out. The above persons shall sign and write down their full names or give their fingerprints (together with footnotes of full names of the fingerprinting persons) on sealing papers (in hard-to-fade ink);

d/ Sticking sealing papers

For documents, sealing papers shall be stuck on envelop parts that can be opened to take out documents or that can affect the intactness of documents.

For electronic data-containing devices or seals of commercial legal persons, sealing papers shall be stuck on important parts that help identify origins.

On a case-by-case basis, sealing papers shall be protected in forms appropriate to transportation and preservation conditions;

dd/ Completion of sealing of documents and electronic data-containing devices or seals of commercial legal persons

A competent criminal judgment execution agency shall make a minutes of sealing. Such minutes must correctly describe the quantity, characteristics and actual state of documents and electronic data-containing devices or seal of the concerned commercial legal person before and after being sealed up, and bear signatures, full names or fingerprints (together with footnotes of full names of the fingerprinting persons) of persons organizing and participating in the sealing, temporary seizure or revocation. A minutes shall be made in 2 copies of equal validity, of which one shall be included in the judgment execution file and the other shall be handed over to the at-law representative of the concerned commercial legal person.

In case the at-law representative of the concerned commercial legal person refuses to sign the minutes and sealing papers, the competent criminal judgment execution agency shall record such refusal in the minutes.

In case the at-law representative of the concerned commercial legal person and representatives of agencies, organizations and individuals with interests, obligations and responsibilities related to the documents and electronic data-containing devices or the seal of the commercial legal person that are/is sealed, temporarily seized or revoked are absent though having been summoned, the competent criminal judgment execution agency shall still organize the sealing and temporary seizure of such documents and devices or temporary seizure or revocation of the seal but shall record their absence in the minutes.

3. Documents and electronic data-containing devices or seals of commercial legal persons that are sealed up, temporarily seized or revoked shall be kept intact at competent criminal judgment execution agencies throughout the course of temporary seizure.

Competent criminal judgment execution agencies and persons participating in the sealing of documents and electronic data-containing devices of commercial legal persons shall keep such documents and devices confidential.

Article 39.Termination of temporary seizure of documents and electronic data-containing devices or seals of commercial legal persons

1. Within 3 working days after a commercial legal person completely serves a court judgment or ruling, the competent criminal judgment execution agency that has issued a decision on temporary seizure of documents and devices data-containing devices or seal of such commercial legal person shall terminate the temporary seizure. The termination of temporary seizure of documents and electronic data-containing devices or seals shall be effected under decisions of competent criminal judgment execution agencies.

2. Decisions on termination of temporary seizure of documents and electronic data-containing devices or seals of commercial legal persons shall be sent to such commercial legal persons and their at-law representatives. The breaking of seals must comply with Article 40 of this Decree.

3. After issuing decisions on termination of temporary seizure of documents and electronic data-containing devices or seals, competent criminal judgment execution agencies shall hand over such documents, devices or seals.

4. Decisions on termination of temporary seizure of documents and electronic data-containing devices or sealsshall also be sent to the agencies, organizations and individuals specified in Article 6 of this Decree.

Article 40.Order and procedures for breaking seals for handover of temporarily seized documents, electronic data-containing devices or seals of commercial legal persons

1. Preparation for breaking seals

Competent criminal judgment execution agencies that assume the prime responsibility for breaking seals shall notify the breaking to at-law representatives of commercial legal persons and representatives of agencies, organizations and individuals with interests, obligations and responsibilities related to documents and electronic data-containing devices or seals of such commercial legal persons and of administrations of the localities where the seals are to be broken.

2. Breaking of seals

a/ Checking of seals of documents and electronic data-containing devices or seals of commercial legal persons before breaking them;

b/ Taking off sealing papers from and opening packaged or wrapped documents, electronic data-containing devices or seals.

Taking off sealing papers from unpackaged or unwrapped documents, electronic data-containing devices or seals;

c/ Checking documents, electronic data-containing devices or seals of commercial legal persons after breaking seals.

3. Completion of breaking of seals

Upon completion of breaking of seals, minutes thereof shall be made. A minutes of breaking of seals must truthfully describe the state of seals before the breaking of seals, actual state of documents, electronic data-containing devices or seals of commercial legal persons after the breaking of seals, and bear signatures and full names or fingerprints (together with footnotes of full names of the fingerprinting persons) of the persons directly assuming the prime responsibility for and those participating in the breaking of seals. A minutes shall be made by a competent criminal judgment execution agency that organizes the breaking of seals in 2 copies of equal validity, of which one shall be handed over to the at-law representative of the concerned legal person and the other shall be included in the judgment execution file.

In case seals are detected to be no longer intact, a minutes of the actual state of seals and documents, electronic data-containing devices or seals of commercial legal persons shall be made for verification and handling in accordance with law.

4. Upon completion of breaking of seals, competent criminal judgment execution agencies shall hand over documents, electronic data-containing devices or seals. Such handover shall be recorded in a minutes bearing signatures, full names or fingerprints (together with footnotes of full names of the fingerprinting persons) of the persons directly assuming the prime responsibility for, and those participating in, the breaking of seals in accordance with law and this Decree.

Chapter III

SECURITY FOR EXECUTION OF COERCION DECISIONS AND EXPENSES FOR COERCION

Article 41.Measures to secure execution of coercion decisions

1. When a decision on application of a coercive measure is issued, if there is a sign showing that the commercial legal person subject to the coercive measure commits an act of dispersing or damaging assets, the decision issuer may request related agencies and organizations and administration of the locality where the head office of the commercial legal person is located or where assets are located to take a measure to prevent the dispersal or damage of assets.

2. In case a commercial legal person subject to coercion commits an act of opposing or shirking execution of a coercion decision, a competent criminal judgment execution agency may mobilize forces and means to secure the coercion.

3. To secure coerced execution of judicial measures, after deducting money from accounts, handling securities or auctioning distrained assets, competent criminal judgment execution agencies shall, in pursuance to relevant regulations, hire agencies, organizations or individuals with appropriate expertise to execute judicial measures under legally effective court judgments or rulings.

Article 42.Transfer of coercion decisions to secure execution

1. In case a commercial legal person is subject to coercion in a provincial-level locality but located in another provincial-level locality and cannot serve the coercion decision at the place where it has committed a violation, the coercion decision shall be transferred to an agency with coercion competence of the same level in the locality where the commercial legal person is located or has assets for execution.

2. An agency that transfers a coercion decision for execution shall transfer the whole case file to an agency of the same level in the locality where the commercial legal person subject to coercion is located or has assets for execution.

Within 10 working days after receiving a notice of transfer of the coercion decision and the case file, the same-level agency in the locality where the commercial legal person subject to coercion is located or has assets for execution shall organize execution of such decision and notify execution results to the transferring agency.

Article 43.Determination of expenses for coercion

1. Expenses for coercion shall be determined on the basis of actual expenses arising in the course of execution of coercion decisions and conformable with local prices.

2. Expenses for coercion include:

a/ Expense for mobilization of persons to execute coercion decisions;

b/ Expenses for payment of remuneration to asset valuators for organizing auction, and for organizing auction of assets;

c/ Expense for renting means for dismantling and transporting objects and assets;

d/ Expense for hiring safekeeping or preservation of distrained assets;

dd/ Expense for transfer of coercion decisions for execution;

e/ Expense for execution of judicial measures;

g/ Other actual expenses (if any).

Article 44.Advance payment, refund and payment of expenses for coercion

1. Expenses for coercion may be advanced from the state budget and refunded right after money amounts are collected from commercial legal persons subject to coercion.

2. Commercial legal persons subject to coercion shall bear all expenses for coercion-related activities.

3. The Ministry of Finance shall guide the management, allocation, advance payment and refund of expenses for coercion in accordance with the law on the state budget.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 45.Effect

This Decree takes effect on June 1, 2020.

Article 46.Implementation responsibility

1. The Minister of Public Security shall guide the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC