28/07/2022 09:42

Bailiff’s certified reports and some highlight notes in Vietnam

 Bailiff’s certified reports and some highlight notes in Vietnam

Bailiff’s certified report is a document made by a bailiff, recording facts and acts used as evidence in trial and in other legal relations. Making a Bailiff’s certified report must comply with the provisions of the law on form and content. However, not all cases of making a Bailiff’s certified report meet all the conditions of the law.

Typically, in the judgment 67/2018/DS-PT dated April 13, 2018 of the People's Court of Dong Nai province, adjudicating the request to cancel the bailiff's certified report issued by the The bailiff's office between plaintiff Ms. Nguyen Thi H, Mr. Tran Xuan H1 with the defendant The bailiff's office B. Specifically:

"Mrs Nguyen Thi H, Mr. Tran Xuan H1 and Mr. Hoang Ngoc T have an agreement regarding land use rights, so the husband and wife and Mr. T went to the bailiff's office B to make a bailiff's certified report. 

On November 30, 2015 at the bailiff's office B made bailiff's certified report number 719/VB-TPLBH recorded the following behavioral events: "Witnessing records of Mr. Hoang Ngoc T with Mr. Tran Xuan H1, Ms. Nguyen Thi H confirms the joint transfer of land parcels 84, 87, 89, 168, map sheet No. 5; area 1858.3m2 located in Q ward, B city, Dong Nai province…”

Mr and Mrs H, H1 realized that the Bailiff's certified report issued by the Bailiff's Office B is not true, in the report, It is stated that Mr.T and Mrs. T have a joint purchase of land plot 84, so they request the Court to cancel the bailiff's certified report number 719/VB-TPLBH made on November 30, 2015 at the bailiff's office B ".

The trial panel, based on the provisions of Clause 2, Article 26 of Decree 61/2009/ND-CP together with the testimonies as well as other evidences provided by the parties, declares the cancellation of Bailiff's certified report of the Bailiff's office B.

Compare Clause 2, Article 26 of Decree 61/2009/ND-CP as follows:

Article 26. Procedures for preparing bailiff’s certified reports

"The bailiff's certified report provides record of events and acts witnessed by the bailiff in an honest and impartial manner."

In this case, the bailiff's certified report only records the presentation of the involved parties but does not directly witness that the two parties jointly pool money to buy land, which is inconsistent with the provisions of Clause 2, Article 26 of Decree No. 61/2009/NĐ-CP. CP. Therefore, the cancellation of this bailiff's certified report is reasonable.

Many cases have been established by the purchase and sale of real estate through the form of registration by recording the delivery and receipt of money. Misunderstanding making a contract is equal to notarizing and certifying real estate contracts, leading to fraud and loss of money.

Therefore, according to the Newsletter to find out the function of making a bailiff's certified report issued by the Department of Justice of Ho Chi Minh City in January 2019, it has been stipulated that cases of bailiffs are not allowed to be issued, specifically:

According to the current law and the guidance of the Ministry of Justice of Vietnam, the bailiff has the right to record events and acts at the request of the involved parties. However, the following cases should be noted:

1. Do not make up the bailiff's certified report related to the rights and interests of themselves and the relatives of the bailiff.

2. Do not set up the bailiff's certified report violating regulations on ensuring security and defence.

3. Do not set up the bailiff's certified report violating private life secrets and social ethics.

4. Do not make up the bailiff's certified report violated under the notarial competence of notarial practice organizations, under the authentication competence of People's Committees at all levels. Failing to make a certificate to certify the authenticity and legitimacy of the transaction contract; does not confirm the signature, copy from the original.

5. Do not make up with events or acts aimed at performing illegal transactions of the claimant, except for the case where the events or acts are only told through other people's accounts.

6. Do not make a violation of facts and acts of officials and public servants on official duty, unless such events or acts are clearly illegal, infringing on the rights and interests of the requester.

7. Not to intentionally make a mistake by buying and selling real estate through the form of recording the delivery and receipt of money to conceal the purpose that is not in accordance with the provisions of law.

8. Failing to commit violations in other prohibited cases as prescribed by law.

In addition, we should note that the bailiff's certified report is not a notarized or authenticated document. It is just a document made to objectively record a real event or behavior that happened. It does not certify, does not confirm the legitimacy of the contract, does not give rise to the rights and obligations of the parties. Especially, contracts and transactions on real estate are not the basis for registration and issuance of certificates of land use rights, ownership of houses and other assets attached to the land.

Thu Linh
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