The enforcement of civil judgments plays an important role in judicial activities in general and in the process of resolving cases in particular. Court judgments and decisions only truly have value when they are enforced in practice.
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The enforcement of judgments is the final stage and plays an important role in ensuring that the court judgments and decisions are executed, thereby ensuring the seriousness of the law, socialist legality, and protecting the legitimate rights and interests of organizations, individuals, and the State, contributing to maintaining political and social stability, and enhancing the effectiveness and efficiency of the State apparatus.
Therefore, the 1992 Constitution stipulates: “Judgments and decisions of the People's Courts that have taken legal effect must be respected by all state agencies, economic organizations, social organizations, units of the People's Armed Forces, and all citizens; concerned individuals and units must strictly comply.”
The Civil Judgment Enforcement Ordinance of 2004, after nearly 5 years of implementation, has achieved many important results such as: institutionally, adopting two specialized Ordinances on Civil Judgment Enforcement, the Civil Judgment Enforcement Ordinance of 1993 and the Civil Judgment Enforcement Ordinance of 2004, and approximately one hundred documents directly guiding or related to civil judgment enforcement work; organizationally, civil judgment enforcement agencies nationwide have gradually been consolidated: 63 provincial civil judgment enforcement agencies nationwide have Heads or Acting Heads and Deputy Heads; basically, all provincial-level civil judgment enforcement agencies have established at least two or three specialized divisions, in particular, the civil judgment enforcement in Hanoi has established four divisions, and in Ho Chi Minh City, five divisions. These divisions have generally appointed Heads, Deputy Heads, or Deputy Heads in charge; in terms of staffing, civil judgment enforcement agencies nationwide have recruited about 8,000 staff out of a total of 8,287 allocated positions, of which nearly 3,000 are executors, with the rest including titles such as accountants, specialists, clerks, warehouse keepers, and treasury officials; concerning training and development, the Ministry of Justice continually directs the functional units of the Ministry to continuously open training courses for executors and legal training classes to enhance professional capacity for the Heads of civil judgment enforcement agencies, long-appointed executors, and officials working in organization, accounting, clerical, and archival work in local civil judgment enforcement agencies.
Overall, the regulations on civil judgment enforcement have reflected the perspective of judicial and administrative reform suitable for the transition from a centralized bureaucratic subsidy mechanism to a market mechanism, promptly addressing several existing issues and obstacles in civil judgment enforcement, contributing to gradually improving the efficiency of civil judgment enforcement in recent times.
However, compared to the practical requirements and the set tasks in the new situation, the Civil Judgment Enforcement Ordinance of 2004 has shown limitations in personnel organization such as: the responsibilities and coordination mechanisms of concerned agencies and organizations in enforcement; management mechanisms, and organizational models of enforcement agencies are not commensurate with the assigned functions, tasks, and nature of work; the authority of enforcement agencies and executors is not proportionate with the job requirements; there is no effective coordination mechanism between civil judgment enforcement and criminal sentence enforcement, especially in criminal cases involving compensation for damages…
To address these limitations, continue to consolidate and restructure the civil judgment enforcement agency, and to continue institutionalizing the policies and guidelines of the Communist Party on personnel organization and judicial reform in the field of enforcement, at the 4th session of the XIII National Assembly on November 14, 2008, the Law on Civil Judgment Enforcement was approved with a majority of votes, consisting of 9 chapters and 183 articles containing many important reforms regarding personnel organization in civil judgment enforcement, including:
Firstly, concerning the civil judgment enforcement organizational system. It can be said that the civil judgment enforcement organizational system is one of the issues of great significance that reflects the legal status, functions, tasks, and authorities of civil judgment enforcement management agencies and civil judgment enforcement agencies in organizing the performance of tasks and in relations with relevant agencies. Building an appropriate and scientific enforcement organizational model will play a decisive role in the efficiency of enforcement work in general and civil judgment enforcement in particular in Vietnam in the coming time.
Therefore, in National Assembly sessions, particularly at the third session of the XII National Assembly, many opinions focused on analyzing and contributing to the advantages and limitations of the current enforcement organizational model, proposing solutions to enhance the efficiency of the new enforcement organizational model in the future. After gathering and consolidating the contributions of the National Assembly delegates, the Law on Civil Judgment Enforcement of 2008 clearly stipulates the civil judgment enforcement organizational system, including civil judgment enforcement management agencies and civil judgment enforcement agencies, in which the civil judgment enforcement management agencies consist of civil judgment enforcement management agencies under the Ministry of Justice and enforcement management agencies under the Ministry of Defense. Civil judgment enforcement agencies include provincial-level civil judgment enforcement agencies, district-level civil judgment enforcement agencies, and regional-level enforcement agencies. Specifically, concerning the tasks and powers of civil judgment enforcement management agencies; names, structures, and organization of civil judgment enforcement agencies shall be regulated by the Government of Vietnam. Although the specifics of the tasks and powers of civil judgment enforcement management agencies will be regulated by the Government of Vietnam, this will provide an important new legal foundation for the Government of Vietnam to continue consolidating and upgrading the organizational apparatus of civil judgment enforcement management agencies to meet the new requirements and tasks. Also in line with the policy of enhancing the independence, position, role, and direct responsibility of local civil judgment enforcement agencies before the same level People’s Committee, the Law on Civil Judgment Enforcement of 2008 does not stipulate: "The local judicial agency assists the same-level People’s Committee and the superior judicial agency in managing civil judgment enforcement" as specified in the Civil Judgment Enforcement Ordinance of 2004.
Secondly, concerning the rank of executors. The Civil Judgment Enforcement Ordinance of 2004 stipulates the rank of executors according to administrative levels, including two levels: provincial-level executors and district-level executors. Practical implementation has revealed certain inadequacies, causing difficulties in arranging, mobilizing, and transferring executors between civil judgment enforcement agencies, not attracting staff sufficiently to work at civil judgment enforcement agencies, and not meeting the requirements of judicial reform. Moreover, the designation of executors in two ranks with a significant starting salary difference, without a clear scientific basis to classify the competence and qualifications between provincial-level executors and district-level executors, has not motivated or encouraged talented and experienced individuals, leading to limitations in the executor’s activities in the past time.
To address these issues and ensure the fairness between the efforts of the executors and the nature and requirements of their work, it is reasonable to stipulate three ranks of executors: primary, intermediate, and senior based on standards of professional skills, qualifications, competences, service seniority, and work experience regardless of administrative levels.
Thirdly, concerning the criteria for appointing executors. The criteria for appointing executors were a hotly debated topic during National Assembly sessions before passing the Law on Civil Judgment Enforcement. There was an opinion that the criteria for appointing primary executors should only require a person with a law diploma or higher to be appointed as an executor in civil judgment enforcement agencies in mountainous, remote, and distant areas to address the shortage of executors in these places. However, the majority of National Assembly delegates opined that the criteria for appointing executors should remain as a bachelor’s degree in law as per the current legal regulation to meet the requirements of judicial reform as stipulated in Resolution No. 08-NQ/TW dated January 2, 2002, of the Politburo: "Judicial officials must have a university degree in law and be trained in judicial professional skills according to their positions." Therefore, the Law on Civil Judgment Enforcement maintains the criteria for appointing executors requiring a bachelor’s degree in law. However, the notable new point in the executor appointment criteria is the requirement for years of legal work and passing the executor recruitment examination. Depending on the rank of executors, the required legal work experience to qualify for appointment also varies, specifically for primary-level executors it requires at least three years of legal work, for intermediate-level executors it requires at least five years of service as a primary-level executor, and for senior-level executors it requires at least five years of service as an intermediate-level executor. One of the mandatory criteria to be appointed as an executor is to pass the executor recruitment examination for the corresponding ranks. This new regulation aims to address the limitations in the selection and appointment process for executors as per current law. Appointing executors through recruitment exams will help select individuals who meet the standards and capabilities for executor appointment, create an attraction for officers working in other fields, and align with the requirements of judicial and administrative reform. Moreover, appointing executors through recruitment exams also aligns with the orientation specified in Resolution 49-NQ/TW of the Politburo: "Research and implement examination mechanisms to select individuals for appointment to judicial positions."
However, in the immediate future, there is an exception to the recruitment examination for executors, to adapt to the specific conditions of executing officials in mountainous and remote areas currently. The National Assembly's Resolution on the implementation of the Law on Civil Judgment Enforcement agreed to assign the Government of Vietnam to stipulate specific civil judgment enforcement agencies in these areas to select individuals with a bachelor’s degree in law as executors without going through the examination process for five years from the effective date of the Law on Civil Judgment Enforcement.
Fourthly, new regulations on the term of executor appointment. Implementing the appointment of executors according to a five-year term has revealed certain inadequacies in practice; therefore, the Law on Civil Judgment Enforcement 2008 provides new regulations on the indefinite term appointment of executors, inheriting the advantages and addressing the fundamental limitations of term-based executor appointment. Executors is a judicial position associated with the professional implementation of civil judgment enforcement work, so indefinite term appointment will assure executors can focus on their enforcement duties satisfactorily. This does not restrict disciplinary actions if an executor violates or disqualifies if an executor is not competent. Furthermore, the new indefinite term appointment regulation also aligns with the direction specified in Resolution 49-NQ/TW of the Politburo: "Extend appointment terms for judicial positions or implement indefinite term appointment policies."
Fifthly, new regulations in the Law on Civil Judgment Enforcement regarding executors' use of support tools when performing duties. In the past, during civil enforcement, there have been many instances, although not organized coercion, where executors faced threats and fierce rebellion from parties, even being attacked with weapons causing injury and affecting their lives and health. From 1996 to now, according to the regulation of the Government of Vietnam, executors are among those entitled to use support tools while performing their duties. The effective use of support tools by executors has significantly contributed to limiting fierce opposition and attacks from parties during verification and asset inventory processes of those subject to enforcement. This regulation inherits the current law, enabling executors to have means of self-defense when facing opposition and attacks. Thus, to address the Civil Judgment Enforcement Ordinance 2004’s limitation, the new Law on Civil Judgment Enforcement stipulates that executors are entitled to use support tools during enforcement procedures, with specific details regarding types, usage, and storage to be regulated by the Government of Vietnam.
Sixthly, the XII National Assembly's Resolution at the 4th session dated November 14, 2008, on the implementation of the Law on Civil Judgment Enforcement has laid down the policy of socializing certain civil judgment enforcement-related tasks. Implementing the strategy for judicial and administrative reform in the judicial field in general and in civil judgment enforcement in particular, aimed at gradually reducing the burden on the State apparatus, staff, and budget serving civil judgment enforcement, the policy of socializing certain civil judgment enforcement tasks is considered one of the most effective solutions today. This policy has been stipulated in Resolution 49-NQ/TW of the Politburo: "Gradually implement socialization and stipulate forms and procedures to assign certain civil judgment enforcement tasks to non-state organizations…; study the institution of bailiffs (enforcers), initially implement on a pilot basis in certain localities, and based on practical summaries and evaluations after a few years, take further steps.”
Implementing this policy, in the Resolution on the implementation of the Law on Civil Judgment Enforcement, the National Assembly agreed to assign the Government of Vietnam to regulate and organize the pilot implementation of the bailiff institution (enforcers) in certain localities. The pilot implementation is from the effective date of the Law on Civil Judgment Enforcement (from July 1, 2009) to July 1, 2012. Based on the pilot results, the Government of Vietnam will summarize, evaluate the practicality, and report to the National Assembly for consideration and decision.
To ensure the effective implementation and preparation for the Law on Civil Judgment Enforcement 2008 along with the Resolution on its implementation right after the law's effective date, creating a breakthrough in organizing personnel in the field of civil judgment enforcement, the Ministry of Justice has promptly drafted the Plan for implementing the Law on Civil Judgment Enforcement and the National Assembly's Resolution on the implementation of this Law. From now until before the Law on Civil Judgment Enforcement 2008 takes effect (July 1, 2009), the Ministry of Justice will be responsible for drafting or cooperating with related ministries and sectors to draft many important documents for submission to the competent authorities to promulgate or promulgate under its authority, generally guiding the implementation of the Law respectively and on civil judgment enforcement personnel arrangements, such as:
Firstly, drafting the decree guiding the enforcement organizational system and personnel conducting enforcement work. This decree will cover basic contents such as: tasks and powers of civil judgment enforcement management agencies, names, structures, and detailed organization of civil judgment enforcement agencies; procedures for recruiting, appointing executors; procedures for dismissing executors; the right to use support tools during duty performance of executors; standards, procedures for appointing and dismissing Heads, Deputy Heads of civil judgment enforcement agencies and enforcement agencies in the military; uniforms, insignia to be used during duty performance, salary, appropriate allowance policies, and other preferential policies for executors, inspectors, and officials conducting civil judgment enforcement work, etc.
Secondly, drafting the regulations on the organization and operation of the bailiff. This document will include basic contents such as: principles of the bailiff's activities; the scope of work that bailiffs may perform in civil judgment enforcement; general procedures for enforcement actions by bailiffs; state management of bailiffs; standards, powers, and procedures for appointing bailiffs; complaints, denunciations related to bailiff enforcement actions, etc.
Thirdly, drafting the Prime Minister's Decision on issuing the list of civil judgment enforcement agencies in mountainous, remote, and distant areas allowed to select individuals with a bachelor’s degree in law as executors without going through the recruitment examination.
With significant reforms in organizing personnel in the field of civil judgment enforcement as stipulated in the Law on Civil Judgment Enforcement 2008, it is hoped that the implementation of this Law will result in new breakthroughs in civil judgment enforcement, contributing to the success of administrative and judicial reform strategies and building the socialist rule-of-law State of Vietnam in the coming time.
Source: thongtinphapluatdansu.edu.vn
