Thông tư 55/2021/TT-BTC

CIRCULAR

PROVIDING INSTRUCTIONS ABOUT MANAGEMENT, ALLOCATION, ADVANCE PAYMENT AND REIMBURSEMENT OF COSTS OR FUNDS FOR ENFORCEMENT OF COURT JUDGEMENTS AGAINST COMMERCIAL ENTITIES

Pursuant to the Law on State Budget dated June 25, 2015;

Pursuant to the Law on Enforcement of Criminal Judgements dated June 14, 2019;

Pursuant to the Government’s Decree No. 163/2016/ND-CP dated December 21, 2016, elaborating on implementation of certain articles of the Law on State Budget;

Pursuant to the Government’s Decree No. 44/2020/ND-CP dated April 8, 2020, regulating law enforcement against commercial entities;

Pursuant to the Government's Decree No. 87/2017/ND-CP dated July 26, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Finance;  

Upon the request of the Director of the Department of Finance for National Defence, Security and Special Affairs,

The Minister of Finance promulgates the Circular providing instructions about management, allocation, advance payment and reimbursement of costs or funds for enforcement of court judgements against commercial entities.

Article 1. Scope

This Circular provides instructions about management, allocation, advance payment and reimbursement of costs or funds for enforcement of judgements against commercial entities (hereinafter referred to as enforcement) under the provisions of Article 44 in the Government's Decree No. 44/2020/ND-CP dated April 8, 2020, regulating law enforcement against commercial entities (hereinafter referred to as Decree No. 44/2020/ND-CP).

Article 2. Subjects of application  

1. Enforcement decision makers.

2. Authorities supervising enforcement decision makers (hereinafter referred to as decision-making authorities), authorities enforcing enforcement decisions.

3. Commercial entities that fail to comply with or unduly comply with the Court’s judgement or decision already having legal effect to the extent of being subject to law enforcement measures (hereinafter referred to as entities subject to enforcement).

4. Financial institutions and State Treasuries at all levels.

5. State regulatory authorities supervising commercial entities and other entities and persons related to enforcement.

Article 3. Principles of management of enforcement costs

1. Commercial entities subject to enforcement must bear all costs of enforcement activities as prescribed in Article 43 of Decree No. 44/2020/ND-CP.

2. Commercial entities subject to enforcement shall pay all enforcement costs to enforcement decision-making entities in accordance with this Circular.

Article 4. Details of enforcement costs

1. Enforcement costs shall be identified in accordance with Article 43 in the Decree No. 44/2020/ND-CP.

2. Enforcement costs, including:

a) Costs identified under clause 1 of this Article shall be treated based on contracts, contract termination records, minutes on handover of distrained property (in case of the authorized custody of distrained property), invoices and evidence of actual, legitimate and valid expenditures in accordance with current regulations and must be subject to approval granted by enforcement decision makers.

b) In particular, benefits paid to persons mobilized to directly participate in and guard enforcement activities as follows:  

Amount paid to a person leading the implementation of a law enforcement decision who works for an authority implementing a law enforcement decision is VND 150,000 per day on duty; Amount paid to a person mobilized to participate in execution of a law enforcement decision is VND 100,000 per day on duty.

Article 5. Allocation of enforcement funds

Allocation of funds for enforcement of court judgements against commercial entities shall be subject to laws on state budget and the Government’s Decree No. 11/2020/ND-CP dated January 20, 2020, prescribing state treasury administrative procedures.

Article 6. Transfer of enforcement funds and advance payment of enforcement costs

1. Before commencement of the enforcement process, enforcement decision-making authorities shall approve the estimate of costs of enforcement. The estimate of enforcement costs should consider enforcement measures to be applied, time and location of enforcement, enforcement plans and forces (e.g. personnel size and participants).

After being approved, a copy of the cost estimate must be sent to the entity subject to enforcement, enclosing the enforcement decision, the decision on deduction of money from the account of the commercial entity subject to judicial measures (in case of enforcement measures existing in the form of account blockade) in order for that entity to pay enforcement costs (it must clarify the date (day, month and year) of the sanction, the amount to be paid, the address for payment in cash, or the account number in case of payment by transfer and other necessary information). Meanwhile, the enforcement decision-making authority must send the credit institution, the State Treasury, the securities company that is managing the account of the commercial entity subject to judicial measures and the authority having competence in enforcement at the same level (in case of application of Article 42 of Decree No. 44/2020/ND-CP).

In case of enforcement by freezing the account, the head of the criminal judgment execution authority shall issue a decision to deduct money from the commercial entity's account on condition that amount does not exceed the amount required to discharge obligations to execute judicial measures and the costs needed for enforcement. Immediately after receiving the decision on deduction of money from the account of the commercial entity subject to judicial measures, the credit institution, the State Treasury that is managing the account of the commercial entity, and/or the securities company where the commercial entity opens their trading account, shall have to deduct the money from the account and transfer it to the competent criminal judgment enforcement authority for the purposes of commencement of enforcement of judicial measures.

2. In case enforcement costs have not yet been collected from the entity subject to enforcement because that entity does not voluntarily pay or due to other objective causes, based on the approved enforcement cost estimate, the authority carrying out the enforcement decision (or the authority having enforcement jurisdiction at the same level as prescribed in Article 42 of Decree No. 44/2020/ND-CP) can request the enforcement decision-making authority to advance on enforcement costs from their enforcement budget. The maximum advance amount is equal to the estimated allocation received by the enforcement decision-making authority.

3. The advance payment dossier includes the annual estimate assigned by the competent authority, the written approval of the cost estimate for enforcement approved by the competent authority and the order of withdrawal of the budget (advance) as legally prescribed.

Article 7. Settlement and reimbursement of enforcement costs

1. Upon the completed execution of the enforcement decision, the enforcement decision-executing authority (or the competent enforcement authority at the same level as prescribed in Article 42 of Decree No. 44/2020/ND-CP) shall seek the enforcement decision maker’s approval of the settlement of enforcement costs. The enforcement decision-making authority shall be responsible for sending the approved statement on settlement of enforcement costs to the entity subject to enforcement (in case that entity has already paid enforcement costs).

If the approved settlement amount is lower than the amount already paid by the entity subject to enforcement, the authority issuing the enforcement decision shall refund the difference to the entity subject to enforcement. If the approved settlement amount is greater than the amount already paid by the entity subject to enforcement, the entity subject to enforcement authority shall pay the deficit.

2. In case where the advance on enforcement costs has been made as prescribed in Clause 2, Article 6 of this Circular, based on the approved statement on settlement of enforcement costs, the enforcement decision-making authority shall issue a written notice of the approved statement on settlement of enforcement costs to the entity subject to enforcement to ask them to pay enforcement costs (the written notice must clearly state the date (day, month and year) of the sanction, the amount to be paid, the address for payment in cash or the account number in case of payment by bank transfer and other necessary information).

Not later than 10 days from the date of receipt of the written notice of the approved statement on settlement of enforcement costs, the entity subject to enforcement shall be responsible for paying enforcement costs to the enforcement decision-making authority. When collecting money from the entity subject to enforcement, the enforcement decision-making authority must complete regulatory procedures for reimbursing these costs to the state budget.

3. In case the enforcement costs are collected from the proceeds from the property auction (as prescribed in Articles 32 and 33 of Decree No. 44/2020/ND-CP), after deducting the property auction costs under the provisions of the law on property auction, the enforcement decision-executing authority (or the competent enforcement authority at the same level as prescribed in Article 42 of Decree No. 44/2020/ND-CP) shall reimburse enforcement costs. In case where the entity subject to enforcement has paid enforcement costs, the enforcement decision-executing authority (or the competent enforcement authority at the same level as prescribed in Article 42 of Decree No. 44/2020/ND-CP) shall reimburse the enforcement proceeds from the property auction to the entity subject to enforcement.

4. In case where it is impossible to recover the enforcement costs because the entity subject to enforcement is bankrupt or dissolved to the extent of being out of money or property to pay the enforcement costs, the enforcement decision-executing authority shall report to the enforcement decision maker on this situation under the provisions of Clause 5 of this Article.

5. Annually, at the time of making the state budget estimate, the enforcement decision maker shall report on the use of the advance funding for enforcement, including: the amount of money that has been paid in advance, the amount of costs recovered; the amount of costs that have not been recovered yet; the amount of costs that cannot be recovered (if any); reasons for non-recovery and recommendations submitted to superior authorities and financial institutions at the same level.

The dossier for refund of costs of enforcement of administrative penalties paid in advance shall conform to the provisions of Clause 3, Article 6 of this Circular and current regulations on refund of the advanced budget.

Article 8. Budgeting, compliance and finalization

1. Budgeting, compliance and finalization of annual regular expenditures by the enforcement decision-making authority shall be subject to Law on State Budget and other instructional documents. Enforcement funds shall be included in the annual budget prepared by the enforcement decision-making authority.

2. By the end of the year and upon expiry of the duration for review of the cost finalization statement in accordance with the Law on State Budget and other instructional documents, the unused budget balance will be canceled according to regulations while the advance balance of the remaining enforcement costs will be recovered by transferring it to the next year's advance within the annual budget of the enforcement decision-making authority.

Article 9. Entry into force

1. This Circular shall enter into force as of August 25, 2021.

2. In the course of implementation of this Circular, if there is any difficulty that arises, entities, persons and units should promptly report to the Ministry of Finance in order for them to consider cooperating in taking their possible actions./.