According to Article 90 of the Law on Civil Judgment Execution (Law on Civil Judgment Enforcement), in case the judgment debtor has no other assets or has property but not enough for judgment enforcement, the enforcer has the right to distrain and handle the judgment. manage the property of the judgment debtor who is pledging or mortgaged if the value of such property is greater than the secured obligation and the cost of judgment enforcement. Accordingly, enforcers have the right to distrain and handle assets of judgment debtors that are legally mortgaged or mortgaged before a court judgment or decision is issued for judgment enforcement when such assets satisfy fully meet the conditions prescribed by law.
1. A number of contents to be noted when distraint, property handling with respect to the property being pledged or mortgaged:
In addition to fully meeting the conditions prescribed by law, when distraint and handling of pledged or mortgaged property for judgment enforcement, it is necessary to note a number of the following contents:
One is: Regarding the conditions for handling mortgaged or mortgaged properties
According to the provisions of Clause 2, Article 4 of Joint Circular No. 11/2016/TTLT-BTP-TANDTC-VKSNDTC, in case the pledged or mortgaged property is eligible for distraint and handling according to the provisions of Article 90 of the Law If the mortgagee or mortgagee is handling the loan in order to recover the loan in accordance with the law on handling of security assets, the enforcer shall not distrain and handle such property. but must make a written request to the person handling the pledged or mortgaged property to immediately notify the result of asset handling to the civil judgment agency, retain the remaining amount (if any) for settlement by the civil judgment agency according to regulations. under the law.
Second: In case the value of the distrained property is lower than the secured obligation and the enforcement costs
In case the enforcer has distrained and handled the pledged or mortgaged property according to Article 90 of the Law on Civil Law, but after reducing the price according to law provisions, the price of the property after the reduction is not greater than the obligation granted by law. If the person competent to issue a judgment enforcement decision must immediately issue a decision on revoking the decision on enforcement, distraint and handling of property as prescribed at Point c, Clause 1 Article 37 of the Law on Civil Law concurrently requires the mortgagee or mortgagee to immediately notify the result of asset handling to the civil judgment agency, retain the remaining amount (if any) for the civil judgment agency to settle. according to regulations of the Law.
Regarding the payment of enforcement costs, according to the provisions of Clause 3, Article 73 of the Law on Civil Law and Point b, Clause 1, Article 43 of Decree No. 62/2015/ND-CP, the coercive property shall comply with Article 90 of the Law on Civil Law, but after reduction prescribed price whose value is equal to or less than the secured cost and obligation; the coerced property is no longer or has lost its use value, the cost of judgment enforcement in this case will be covered by the state budget.
Third: Regarding payment of judgment enforcement fees
According to the provisions of Clause 3, Article 47 of the Law on Civil Law: “In case the pledged or mortgaged property is handled and the mortgagee or mortgagee is not the bailee, the pledgee or mortgagee shall have priority for payment. before paying the amounts specified in this Article”. Thus, in cases where the mortgagee or mortgagee is not the judgment debtor, the enforcer should give priority to paying the mortgagee or mortgagee first and then paying the amounts specified in Clause 1 of this Article. Clauses 1 and 2, Article 47 of the Law on Civil Law.
Fourth: Regarding the collection of judgment enforcement fees
According to the provisions of Clause 7, Article 3 of the Law on Civil Enforcement, judgment enforcement fee is the sum of money that the judgment creditor must pay when receiving money and property according to the judgment or decision. Therefore, when making payment to the mortgagee or mortgagee who is not the judgment debtor, it should be noted that no judgment enforcement fee is charged to the pledgee or mortgagee. Because, although the mortgagee or mortgagee is entitled to receive money, the pledgee or mortgagee is not the judgment debtor, moreover, the pledgee or mortgagee accepts this amount of money not as a payment. money according to the judgment or decision.
2. Some difficulties in distraint, handling of property pledged as mortgage for judgment enforcement
Although the legal provisions on civil law already have provisions on distraint and handling of mortgaged assets. However, in practice, the distraint and handling of pledged and mortgaged assets for judgment enforcement still face many difficulties.
One is: Regarding the conditions for distraint and handling of mortgaged or mortgaged properties
According to Article 11 of Resolution No. 42/2017/QH14 on piloting bad debt settlement of credit institutions effective from August 15, 2017, the security assets of bad debts of the debtor of the debtor The court that is securing debt repayment obligations at credit institutions, foreign bank branches, bad debt trading and settlement organizations, is not distrained to perform other obligations as prescribed in Article 90 of the Law on Civil Law. , except for the case of enforcement of judgments or decisions on alimony and compensation for loss of life and health and the case with the written consent of credit institutions, foreign bank branches, financial institutions buying and selling, handling bad debts. Accordingly, the civil judgment agency only distrains the security assets of bad debts according to the provisions of Article 90 of the Civil Law Law when it falls into one of the following cases: (i) To enforce the Court's judgments or decisions on granting maintenance, compensation for loss of life,health; (ii) The credit institution's written consent for distraint. The credit institution is responsible for certifying in writing that the property is being pledged or mortgaged to secure the debt repayment obligation for the bad debt. This condition also partially limits the cases of distraint and handling of mortgaged or mortgaged properties in practice.
Second: Coordination of mortgage and mortgage recipients
According to the law, the distraint and handling of property being mortgaged or mortgaged lawfully for judgment enforcement does not require the consent of the pledgee or mortgagee. When distraint the pledged or mortgaged property, the enforcer must immediately notify the pledgee or mortgagee. However, in reality, in order to distrain and handle property while the mortgagee or mortgagee does not coordinate with the civil judgment agency, it is also a huge barrier when applying the provisions of the law. Although Clause 2, Article 64 of Decree No. 82/2020/ND-CP of the Government stipulates the sanction of administrative violations in the field of judicial assistance; judicial administration; Marriage and family; civil enforcement; Bankruptcy of enterprises and cooperatives has regulations on behavior: “Failing to provide information,failing to hand over papers related to property to be handled for judgment enforcement at the request of a person competent to execute judgment without plausible reasons” with a fine of between VND 1,000,000 and 3,000,000. However, the treatment of these cases is still very limited. Therefore, there should be more specific guidelines on the order of procedures for these cases as well as more effective legal sanctions for cases where the property meets the conditions for handling. according to the provisions of law, but there is no cooperation from the mortgagee or mortgagee, causing difficulties or hindering the process of organizing judgment enforcement.Therefore, there should be more specific guidelines on the order of procedures for these cases as well as more effective legal sanctions for cases where the property meets the conditions for handling. according to the provisions of law, but there is no coordination from the mortgagee or mortgagee, causing difficulties or hindering the process of organizing judgment enforcement.Therefore, there should be more specific guidelines on the order of procedures for these cases as well as more effective legal sanctions for cases where the property meets the conditions for handling. according to the provisions of law, but there is no coordination from the mortgagee or mortgagee, causing difficulties or hindering the process of organizing judgment enforcement.
Clause 3, Article 24 of Decree No. 62/2015/ND-CP also stipulates: For property legally pledged or mortgaged, the verification results at the time of judgment enforcement show that the property has a value equal to or less than the obligation to pay under the pledge or mortgage contract, the enforcer must notify in writing the pledgee or mortgagee of the judgment debtor's obligations and request that when paying in full. obligations under the contract or when dealing with the pledged or mortgaged property, it must notify such to the civil judgment agency. The civil judgment enforcement agency shall distrain the property after the mortgage has been released or collect the remaining amount after handling the property to pay the signed contract, if any. In case the pledged or mortgaged property is eligible for distraint and handling according to regulations, but the pledgee,If the mortgage is being handled to recover the loan in accordance with the law on handling of secured assets, the enforcer shall not distrain and handle such property but must make a written request. the person handling the pledged or mortgaged property shall immediately notify the result of asset handling to the civil judgment agency, retain the remaining amount (if any) for settlement by the civil judgment authority in accordance with law (Clause 2 of Article 2 of this Law). 4 Joint Circular No. 11/2016/TTLT-BTP-TANDTC-VKSNDTC).
However, in fact, there are still cases where, after debt settlement, the mortgagee does not notify the judgment enforcement agency of the results of loan settlement. Although Clause 3, Article 24 of Decree No. 62/2015/ND-CP stipulates: If the pledgee or mortgagee fails to notify or delays in notifying, causing damage to the judgment creditor, he/she must pay compensation according to the provisions of Article 24 of Decree No. 62/2015/ND-CP. However, to handle these cases in practice, there are still many difficulties.
Therefore, it is necessary to consider supplementing the legal provisions on the coordination responsibility of the mortgagee and mortgagee in judgment enforcement and adding more effective legal sanctions to handle cases. The mortgagor fails to cooperate with the civil judgment enforcement agency in distraint and handling the pledged or mortgaged property for judgment enforcement when the property fully meets the conditions for handling as prescribed by law. .
Thirdly: Regarding the order and procedures for determining the value of assets before distraint and handling of assets being pledged or mortgaged for judgment enforcement.
According to the provisions of Clause 3, Article 73 of the Law on Civil Law and Point c, Clause 1, Article 43 of Decree No. 62/2015/ND-CP, the expenses for enforcers to verify and determine the value of assets before coercion to apply To apply coercive measures corresponding to the obligation to execute judgments, the necessary expenses for application under Article 90 of the Law on Civil Law shall be paid by the State budget. However, the Civil Law Law does not provide specific instructions on the order and procedures for determining the value of assets in these cases, leading to many confusions for civil judgment enforcement agencies when applying the law. . Therefore, it is necessary to continue to have legal regulations to guide more specifically on the order and procedures for distraint and handling of mortgaged or mortgaged assets for judgment enforcement, contributing to the effective promotion of regulations. this legislation in practice.
