05 things you should know about property distraint in Vietnam

05 things you should know about property distraint in Vietnam (Internet image) 

1. Subjects of the enforcement measure in which property whose value is equal to the penalty amount is distrained for auction in Vietnam

Subjects of the enforcement measure in which property whose value is equal to the penalty amount is distrained for auction according to Article 18 of Decree 166/2013/ND-CP are as follows:

- Persons who are not paid salaries or income or social security benefits by an entity or organization, and do not hold any account or whose money deposited in their accounts opened at credit institutions is not enough to cover the amount that is withheld or disallowed according to the enforcement measure to withhold or disallow money from accounts.

- Organizations that do not hold any account or whose money deposited in their accounts opened at credit institutions is not enough to cover the amount that is withheld or disallowed according to the enforcement measure to withhold or disallow money from accounts.

Only property of an affected organization or person whose value is equal to the penalty amount specified in the decision to impose administrative penalties or the decision to impose administrative remedies and the amount of costs incurred from carrying out enforcement activities shall be distrained.

2. Property exempted for being distrained in Vietnam

Article 19 of Decree 166/2013/ND-CP stipulates the property exempted for being distrained as follows:

- Only houses of persons and families of persons subject to enforcement that have the minimum space as prescribed by laws on residence.

- Medicines, food and food supplies used for meeting basic demands of persons and families of persons subject to enforcement.

- Working tools or common property necessary for daily life of persons and families of persons subject to enforcement.

- Articles or objects for worship, relics, medals or merit certificates.

- Property used for national defence and security.

- Property put up as a legal pledge or collateral.

3. Verification of information about property owned by subjects of enforcement measures in Vietnam

Article 20 of Decree 166/2013/ND-CP stipulates the verification of information about property owned by subjects of enforcement measures as follows:

- The person having jurisdiction to issue enforcement decisions shall assume responsibility for verifying information about property of subjects of enforcement, conditions for implementation of the enforcement decision on distraint of property whose value is equivalent to the penalty amount.

- Interested entities, organizations or persons shall be responsible for providing information about property of subjects of enforcement upon the request of the authority issuing the enforcement decision.

4. Enforcement decision on property distraint in Vietnam

According to Article 21 of Decree 166/2013/ND-CP, the decision on enforcement of asset distraint is as follows:

- The enforcement decision on distraint of property shall specify the

+ Decision numbe;

+ Date of issue of the decision;

+ Bases for issue of the decision;

+ Full name, title, workplace of the decision maker;

+ Full name, residence and workplace of person or organization subject to property distraint;

+ Penalty amount;

+ Distraint location;

+ Signature of the decision maker and stamp affixed by the decision-making authority.

- Distraint of property shall be notified to the person or organization subject to distraint, People's Committee of the commune where that person resides or that organization’s office is located or workplace of that person 05 working days prior to commencement of such distraint,

Unless such notification causes any difficulty in carrying out such distraint.

5. Process for carrying out property distraint activities in Vietnam

Process for carrying out property distraint activities according to Article 22 of Decree 166/2013/ND-CP as follows:

- Property distraint activities shall be carried out during daylight and time frame of 8 a.m. to 5 p.m.

- The enforcement decision maker or the person authorized to implement enforcement decisions shall undertake distraint activities.

- Upon distraint of property, it is required that affected persons or legally mature family members having full civil capacity, representatives of affected organizations, representatives of local authorities and witnesses must be present.

If affected persons or legally mature family members are intentionally absent, property distraint activities may be carried out as usual in the presence of representatives of local authorities and witnesses.

- Affected organizations or persons can suggest which property should be distrained first and the person authorized to undertake distraint activities must approve such request when considering that it will not cause any adverse impact on enforcement activities.

If affected persons or organizations do not make the said suggestion on which property should be distrained first, the property under private ownership shall be distrained first.

- Property under shared ownership between the affected person and others is distrained only if that affected person has none of his/her own property or his/her own property is not enough to ensure discharge of obligations defined in the enforcement decision.

In the event that property to be distrained is in dispute, distraint activities shall be carried out as normal and explanation for the right to initiate civil proceedings shall be given to the persons who have the shared ownership interest in such property.

The authority carrying out distraint activities shall be responsible for notifying time and location of distraint to co-owners of such property.

Upon expiration of the stipulated duration of 03 months from the date of distraint, if civil proceedings have not been brought, distrained property shall be auctioned in accordance with laws on property auction.

Quoc Dat

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