Một số vấn đề lý luận và thực tiễn về cưỡng chế thi hành án dân sự ở việt nam astract

Besides convincing the litigants to voluntarily execute the judgments, in many cases it is necessary to enforce civil judgments, however, the enforcement of civil judgments directly affe

LE ANH TUAN

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

SOME THEORETICAL AND PRACTICAL ISSUES ON THE

ENFORCEMENT OF CIVIL JUDGMENTS IN VIETNAM

Specialized major: Civil Law and Civil Procedure

Code: 62380103

SUMMARY OF DISSERTATIONS

HANOI- 2017

The dissertation is completed at:

HANOI LAW UNIVERSITY

Academic Supervisor: 1 Dr Dinh Trung Tung

2 Prof.Dr Tran Anh Tuan

Reviewer 1: Dr Nguyen Van Cuong

Reviewer 2: Prof.Dr Nguyen Thi Que Anh Reviewer 3: Dr Le Thi Thu Ha

Dissertation will be examined by the Council of Dissertation

Evaluation at Hanoi Law University at date / / 2017

Dissertation is available at:

1) National Library of Viet Nam;

2) Library of Hanoi Law University.

PREAMBLE

Execution of civil judgments plays an important role in contributing to ensuring the effective enforcement of judgments and decisions which are enforced according to the procedures for civil judgment execution Besides convincing the litigants to voluntarily execute the judgments, in many cases it is necessary to enforce civil judgments, however, the enforcement of civil judgments directly affects the property rights and the personal identity of the person to whom the judgment is enforced and the persons involved, give rise

to, change or terminate the rights and obligations of the subject Therefore, the provisions on enforcement of civil judgment must meet the criteria for ensuring the efficiency of the enforcement of judgments, against acts of shirking, obstructing, opposing or delaying the enforcement of judgments, at the same time, it is necessary to ensure respect for the legitimate rights and interests of the relevant stakeholders The provisions on measures, order and procedures for enforcement of civil judgments should be prescribed in accordance with the nature of each obligation to be enforced

The study shows that basic regulations on enforcement of civil judgments are recognized and enforced by Vietnamese law but have revealed certain limitations that are one of the causes The status of the case remains unsatisfactory to meet the protection requirements

in a timely and effective manner, the legitimate rights and interests of the judgment creditors and the lawful interests of other litigants in the enforcement of civil judgments, there is still a lot of work and civil debt outstanding in the year to move next year, some large cases

have not been enforced effectively Meanwhile, the work of building and improving the law on enforcement of civil judgment is still slow, organizing civil judgment enforcement personnel, facilities and equipment of civil judgment enforcement agencies It does not meet the requirements of the reality also affect the effectiveness of enforcement of civil judgments Many provisions on enforcement of civil judgment are not based on theoretical, scientific and rational theories, but there are also conflicting, overlapping, incompatible with practical implementation Civil case awkwardness in the application of civil enforcement law enforcement, violations in the enforcement of civil judgment enforcement still take place in many places, many subject enforcement of civil judgments, various forms

of violations, ranging from the verification of conditions for enforcement of civil judgment execution, the right to request the enforcement of civil judgments of the involved parties, the issuance

of decisions on the enforcement of civil judgments, to organize the enforcement of civil judgments, to pay the proceeds from the enforcement of civil judgments; every year, many Executors are disciplined for violating the law while conducting the enforcement of civil judgments, many cases of violation lead to complicated and complicated remedies With very large amounts, be examined for penal liability to Executors of civil judgment enforcement agencies Many civil law enforcement cases are unsuccessful, involving large forces, at very high costs; the results of enforcement of civil judgments in many cases have not really protected the interests of litigants, especially in the case of distraint, property auctions, civil court execution time long Many cases where the judgment debtors

oppose the enforcement of civil lawsuits, intentionally forfeit or dispersed property, even destroy the distrained property or self-immolate to obstruct the examination Civil litigation This situation requires deep research on the enforcement of civil judgments, both under theoretical and practical law, to clarify the scientific basis for the development of regulations On the enforcement of civil judgments, to assess the current situation of law and to work out solutions to improve the efficiency of enforcement of civil judgments

in Vietnam From the angle of the Party's line on judicial reform, improving the efficiency of the enforcement of civil judgments and improving the law on enforcement of civil judgments is one of the important contents of the judicial reform The way the judiciary is mentioned in many texts of the Party The practice of enforcing civil judgments imposes objective requirements that require in-depth study on the enforcement of civil judgment and propose solutions to ensure the effectiveness of this work

In academia, the study of enforcement of civil judgments in recent years has been paid attention, there are many research works expressed in the form of scientific topics, theses, dissertations, books, essays professional seminars, commentary workshops, reviews related to the enforcement of civil judgments with different angles of access Each approach to enforcement of civil judgment has its strengths but also has certain limitations However, at present, there

is not yet any work approaching in-depth and comprehensive research on the enforcement of civil judgments from the point of view of theories, laws and practices, especially the new ones On the enforcement of civil judgments in the Law on Civil Judgment

Execution as well as documents guiding the implementation of the Law on Civil Judgment Execution The approach towards intensive and holistic research on civil enforcement enforcement can connect and overcome the scathing in the current work on civil enforcement enforcement of civil judgments Proposing long-term, fundamental solutions to improve the law and improving the efficiency of enforcement of civil judgments in sustainable practice is an urgent imperative For the reasons mentioned above, the selection of the topic "Some theoretical and practical issues on the enforcement of Civil Judgments in Vietnam" as the thesis topic to clarify theoretical issues, actual legal and practical costs to implement in order to propose solutions to better protect the legitimate rights and interests

of the subjects in the enforcement of civil judgments and to improve the effectiveness of enforcement activities Civil judgments are urgent, meaningful both in theory and in practice

The dissertation aims to systematically study the basic theoretical issues on enforcement of civil judgments as well as the practice of enforcement of civil verdicts, clarifying requirements and enhancing solutions The effect of enforcement of civil judgments in Vietnam The subjects and scope of the study focus on a number of theoretical issues on the enforcement of civil judgments, the content

of law and the practical implementation of law on enforcement of civil judgments in Vietnam Comparing and contrasting with previous regulations in the history of Vietnamese law as well as regulations on enforcement of civil judgments of some countries in the world, orientation for theoretical and evaluation clarification The current state of law, especially the limitations and inadequacies of the

law and the practical implementation of the law on enforcement of civil judgments, thus raising the requirements and solutions to improve the effect of enforcement of civil judgments in Vietnam The contents of the dissertation were studied on the basis of the correct methodology, the science of Marxism-Leninism and Ho Chi Minh's thought on the state and law, and on the other hand using the methodology studied Study other relevant subjects such as: analysis, proof, comparison, interpretation and sociology, field surveys, statistics to clarify research issues

New scientific contributions to the thesis include:

Firstly, the dissertation has systematically and additionally

deepened the theoretical issues on the enforcement of civil judgments, including the concepts, characteristics, meanings and principles for enforcement of civil and background judgments, the science of the development of civil law enforcement regulations, factors affecting the effect of enforcement of civil judgments, criteria for assessing the effect of enforcement of civil judgments, to build a general picture of the formation and development of the law of Vietnam on enforcement of civil judgments and legal experiences of some countries on enforcement of civil judgments

Secondly, the dissertation synthesized and systematically

analyzes the current legal documents in Vietnam to clarify the current law on enforcement of civil judgment and the enforcement of enforcement law Civil litigation, which assesses the results achieved, the limitations, the existence and causes of limitations, the existence of civil law enforcement enforcement, both in law and

practice of law enforcement Law on the enforcement of civil judgments

Thirdly, the thesis sets out 05 requirements and 03 groups of

measures to improve the efficiency of enforcement of civil judgments in Vietnam, with the requirements for the establishment of

a socialist rule-of-law State of the people, by the people and for the people; ensuring human rights, fundamental rights of citizens; to mobilize the active participation of agencies, organizations and individuals in the enforcement of civil judgments; appropriate and serve the renovation policy, the policy of administrative reform, judicial reform of the Party and the State; to be consistent, feasible and 03 groups of measures to improve the law, to organize the enforcement of civil judgments, to ensure the necessary conditions for the enforcement of civil judgments

In addition to the introduction, overview of research issues, conclusions, list of references and appendices, the dissertation is presented in three chapters as follows:

Chapter 1: Some Theoretical Problems of Civil Enforcement Enforcement

Chapter 2: Current Legal and Practical Status of the Enforcement of Civil Judgment Enforcement Act in Vietnam

Chapter 3: Requirements and solutions to improve the effect of enforcement of civil judgments in Vietnam

OVERVIEW OF RESEARCH ISSUES

At the forum of scientific research in the country and abroad, there have been many researches and comments related to the enforcement of civil judgment

1 Relevance of published works

First of all, regarding the relevance of published works to the theory of enforcement of civil judgments, it is possible to see that most of the works have not yet been generalized and easily confused with the concept of enforcement Civil law with the concept of

"enforcement measures for civil judgment" does not accurately and fully reflect the concept of enforcement of civil judgment Some works refer to the characteristics, meanings, principles, order and procedures for enforcement of civil judgments but not yet fully and profoundly linked to the history of enforcement of law on enforcement Civil cases, as well as not deeply reflect the issue of enforcement of civil judgments in accordance with the law in foreign countries Criteria for assessing the effect of enforcement of civil judgments have not been mentioned

Secondly, regarding the relevance of the published works to the current state of law and the practical implementation of civil enforcement law enforcement, none has fully reflected the current state of law and practice To observe the law on enforcement of civil judgment, with data on enforcement of civil judgments on all measures for enforcement of civil judgments nationwide; The actual implementation of civil law enforcement has not been updated in recent years

Thirdly, on the relevance of the published works to the requirements and solutions to improve the enforcement of civil judgment in Vietnam, some projects have raised the requirements and solutions to enhance the effect Enforcement of civil judgments

in Vietnam, at certain angles, however, these solutions are only small for each specific case, but there is no work to present the whole, full

of love Demand and solutions to improve the efficiency of enforcement of civil judgments in Vietnam

2 System of issues covered by the study

Firstly, on the theoretical issue of enforcement of civil judgment: The dissertation further clarifies the concept of enforcement of civil judgments, characteristics of enforcement of civil judgments, clarifies the meaning of enforcement of civil judgments, basic justification of the development of legal provisions

on enforcement of civil judgments, factors affecting the effect of enforcement of civil judgments, principles, the criteria for evaluating the effect of enforcement of civil judgments, the formation and development of the law on enforcement of civil judgment in Vietnam, and more clearly the experience of foreign law on enforcement of civil judgment history

Secondly, on the current situation of civil law enforcement in Vietnam: analyzing and assessing the current situation of law on enforcement of civil judgment in Vietnam to have the most general view of the law on the enforcement of civil judgments in Vietnam Enforcement of civil judgments; other factors affecting the enforcement of civil judgments; identify and clarify the causes of limitations and the existence of civil law enforcement

Thirdly, on the practical implementation of law on enforcement

of civil judgment in Vietnam: The thesis reflects the practical implementation of the law on enforcement of civil judgment, with specific data on coercion To execute 08-year civil cases from 2009

to the end of 2016 (30/9/2016) of each coercive measure of civil judgment execution and a number of cases of compulsory enforcement of civil judgments in typical and effective manner, it is difficult to prove the arguments about the rationale, the inadequacies, the limitations and the causes of the enforcement of civil judgments and the procedures for the enforcement of civil judgments under current law in Vietnam

Fourth, on the requirements and solutions to improve the efficiency of enforcement of civil judgments in Vietnam: The continued research and solutions to improve the efficiency of enforcement of civil judgments is one the important task that the thesis solves Measures to improve the effect of enforcement of civil judgments are set on the basis of the theories on enforcement of civil judgments, the assessment of the current state of law and the practical implementation of law on enforcement of judgments Civilian, with criteria for assessing the effect of enforcement of civil judgments; clarify the requirements for enhancing the efficiency of enforcement of civil judgments, and propose solutions to improve the enforcement of civil judgments, such as improving the law on enforcement civil lawsuits, the organization of enforcement of civil judgment execution, and the conditions for enforcement of civil judgment execution

3 Research questions, approaches, hypotheses and expected results of the thesis

By posing and answering research questions, identifying directions and proving research hypotheses, projecting the research results of the thesis project

Firstly, to systematize and perfect the theoretical foundation on

the enforcement of civil judgments This is the theoretical basis for the PhD student to propose solutions to improve the effect of enforcement of civil judgments in Vietnam

Secondly, objectively and comprehensively assess the current

state of law and practice of enforcement of civil verdicts in Vietnam, thereby creating a practical basis for to issue solutions to improve the efficiency of enforcement of civil judgments in Vietnam

Thirdly, the requirements for improving the enforcement of civil

judgment enforcement and the development of a system of solutions

to improve civil enforcement enforcement in Vietnam in a sustainable manner

CHAPTER 1 SOME MATTER ISSUES ABOUT CIVIL PROCUREMENT AGREEMENTS

1.1 Concept, characteristics and significance of enforcement of civil judgments

1.1.1 The concept of enforcement of civil judgments

Enforcement is the use of state power to force certain individuals or organizations to abide by, which is a mode of use and assurance of state power exercised by certain remedies and by the competent authority proceed Civil enforcement enforcement of civil

judgments always use state power to force individuals and organizations directly involved in the implementation of judgments and decisions Enforcement of civil judgment is instituted and carried out for the specific purpose of executing the enforcement of civil judgments but the general purpose is to strictly enforce the judgment

or decision to be enforced according to the judgment execution procedure civil Therefore, enforcement of civil judgments is the subject matter of the competent authority exercising the power of the State to take coercive measures in accordance with the provisions of law on civil judgment execution to organizations and individuals to ensure the enforcement to exercise in practice the rights and obligations already determined in the judgments or decisions to be enforced according to the procedures for civil judgment execution 1.1.2 Characteristics of enforcement of civil judgments

- Forcible execution of civil judgments demonstrating state power, only individuals of functional agencies of the State or persons

of organizations authorized by the State shall have the competence to conduct civil judgment enforcement

- Forcible execution of civil judgments is a civil judgment execution measure but the measure of civil judgment execution shall

be effected through coercive civil judgment execution only when the judgment debtors fail to voluntarily execute the judgments, except in special cases, due to the need to prevent acts of dispersal, property damage or other acts to evade the enforcement of civil judgments

- Forcible execution of civil judgments applicable to many subjects, not only the judgment debtors but also to the judgment debtors or individuals, agencies and organizations with interests or

meanings The case directly related to the performance of the involved parties' rights and performance of their obligations or the third person managing the property for civil judgment execution

- Forcible enforcement of civil judgments applied through the enforcement of enforceable decisions shall be manifested specifically

by the issuance of decisions of the persons competent to apply coercive measures to enforce civil judgments

1.1.3 Significance of enforcement of civil judgments

First of all, the protection of civil law enforcement and enforcement of law is enforced in practice, that is, the process of operating for the purpose that legal entities, by their acts, law on the enforcement of civil judgments in real life

Secondly, the protection of the legitimate rights and interests of the State, organizations and individuals and the successful enforcement of civil verdicts, the judgments and decisions shall be respected and enforced in practice, the interests of the parties, other organizations and individuals and the interests of the State

Thirdly, contributing to raising the legal consciousness of the subjects in society, making the subjects have thoughts and feelings expressing attitudes, judgments of fairness or unfairness, right or the illegality of the law on enforcement of civil judgment

Fourthly, it contributes to improving the effectiveness of investigating, prosecuting, adjudicating and enforcing civil judgments, thereby promoting the effectiveness of corrective actions and overcoming shortcomings, it is committed in the process of investigating, prosecuting, adjudicating and executing civil cases

1.2 The scientific basis of the development of civil law enforcement regulations

1.2.1 The elaboration of law provisions on enforcement of civil judgments on the basis of arguments on civil obligations

1.2.2 The elaboration of regulations on enforcement of civil judgment must be based on the assurance of human rights and ownership of the subject

1.2.3 The formulation of regulations on the enforcement of civil judgments must be clear, transparent and simple as well as ensure the compatibility and uniformity of the relevant legal system

1.2.4 The development of regulations on the enforcement of civil verdicts must be based on the requirements of the practical implementation of civil judgments in order to ensure the feasibility and effectiveness of the enforcement of civil judgments

1.3 Influence factors and criteria for assessing the effect of enforcing civil judgments

1.3.1 Factors affecting the effect of enforcement of civil judgments

- The elements of customs and habits, taking into account the particularities of the national culture and the community cohesion of the population division in the regions and religions of the subjects subject to the enforcement of civil judgments

- Psychological factors, which must be calculated in the civil law enforcement legislation on enforcement of civil cases, are appropriate and feasible, and the enforcement of civil judgment execution must pay attention to mobilization, persuasion and

elaboration The enforcement plan is capable of effectively enforcing the enforcement of civil judgments

- Socio-economic conditions are important factors affecting the enforcement of civil judgments, especially the judgment debtors and the judgment debtors

- The intellectual factor, law consciousness, especially of the litigants, if the litigant has high intellectual level, high sense of law, will properly perceive rights and obligations on civil judgment execution according to legal regulations

- The ability of a competent person to enforce a civil judgment, the quality and effectiveness of the enforcement of a civil judgment depends on the capacity of the civil enforcement organization to enforce its civil judgment Executor, Bailiff

1.3.2 Criteria for evaluating the effect of enforcement of civil judgments

The rational use of state power in the enforcement of civil judgments is not only a matter of specific civil judgment enforcement but the enforcement of civil judgments in that locality will then be very favorable

Ensuring fairness, equality and democracy in the enforcement of civil verdicts, showing that any person subjected to any judgment must strictly abide by the decision on enforcement of civil judgment Positive change in the perception and behavior of organizations and individuals in the enforcement of civil judgments, from which they support the enforcement of civil judgments, minimize obstacles against the enforcement of civil judgments

1.3 Principles of enforcement of civil judgments

1.4.1 For enforcement of civil judgments only when there are grounds prescribed by law, individuals or organizations that have to execute civil judgments and fail to voluntarily execute their judgments shall be subject to civil judgment enforcement To enforce civil judgments against individuals or organizations must be grounded

1.4.2 Enforcement of civil judgments executed by competent persons, the competent subjects conducting the enforcement of civil judgments must be prescribed by law to apply the measure of coercive execution of civil judgments Depending on the specific conditions and circumstances of each country which empowers the subject to enforce the enforcement of civil judgments In Vietnam today, the subject has the right to enforce civil judgments as Executors and Bailiffs