Pháp luật về thừa phát lại ở việt nam hiện nay tt tiếng anh

Research purpose The study aims to examine theoretical and practical issues on bailiffs, identifying scientific and practical bases for building and recommendations to improve the law o

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

L

HUYNH DUC THAI LAM HOANG

THE LAW RELATING TO BAILIFFS IN

The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences

Supervisor: Assoc Prof Dr Nguyen Nhu Phat

Reviewer 1: Assoc Prof Dr Tang Van Nghia

Reviewer 2: Dr Pham Sy Chung

Reviewer 3: Assoc Prof Dr Duong Dang Hue

The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi

Time: ………… date ……… month …… …year 2019

The dissertation may be found at:

- Vietnam National Library;

- Graduate Academy of Social Sciences Library

INTRODUCTION

1 The necessity of the research topic

Vietnam should carry out judicial reform to further serve the people’s needs The judicial reform process poses the legal science issues including bailiff issue that needs to be examined and solved The bailiff issue has been around for a long time and has been developing in many countries around the world In the current context, Vietnamese civil judgment enforcement agencies are always being concerned to well perform their duties In fact, however, civil judgment execution is still hot issue It is also one of the important reasons that the State has decided to implement a pilot program of reestablishing the bailiff institution, besides the civil judgment enforcement agencies, it has expanded in a number of provinces and in the whole country now The bailiff has not really influence and its outcomes are not really expected Additionally, Vietnam has officially become a member of the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters However, the legal system

of bailiffs in our country has not built on the basis of scientific theory system Thenceforth, it is necessary to have a serious and correct knowledge on the legal system to avoid conflicting, overlapping and not unifying in order to find out orientation and solutions to improve the law on bailiffs

2 Research purpose and tasks

2.1 Research purpose

The study aims to examine theoretical and practical issues on bailiffs, identifying scientific and practical bases for building and

recommendations to improve the law on bailiffs by the goals of judicial and administrative reform and guaranteeing human rights in Vietnam today

2.2 Research tasks

Reviewing literature; clarifying theoretical basis; examining, analyzing and clarifying the theoretical issues of the law on bailiffs such

as concepts, the nature and characteristics of bailiffs Legal experiences

in some countries on this issue; it also analyzes and evaluates situation

of Vietnamese law and the law enforcement in practice The study then proposes orientation and solutions to improve the law relating to bailiffs

in Vietnam

3 Research subject and scope

3.1 Research subject: Theoretical and practical issues of the law on

bailiffs; a system of legal documents on bailiffs and organization and operation of bailiffs in reality in Vietnam

3.2 Research scope: in terms of content and space: the dissertation

seeks to examine the theoretical and practical issues of the law on bailiffs in our country In terms of time: the dissertation focuses on the contents of the law on bailiffs from 2009 (the year of bailiff pilot in Vietnam) up to now (2019)

4 Methodology and research methods

Methodology: the study utilizes dialectic and historical materialism,

the Party and State’s points of views and policies on the socialization of civil judgment execution activities and the implementation of the bailiff institution to summarize and evaluate positive and negative aspects as well as the posing problems of the provisions of the law to improve the legal basis on the organization and operation of the bailiff institution

Research methods: the study utilizes methods of system - structure,

statistics, comparison, forecasting, analysis, synthesis and survey Methods of combining theory and practice Collecting and reviewing literature, and using the results of actual surveys and the law on bailiffs between 2009 and 2019

5 New contributions of the dissertation

First, the dissertation seeks to examine systematically and

comprehensively the law on bailiffs in Vietnam today and it proposes solutions to further improve the modes of enforcing law so as to contribute to supplement program of building the law on bailiffs

Second, the dissertation seeks to clarify the real situation of the

provisions of the law and the application of the law on bailiffs in

practice Third, the dissertation proposes recommendation and solutions

to deal with limitations and shortcomings

6 Theoretical and practical significance of the dissertation

Theoretically: the study seeks to further clarify the theoretical issues

of the law on bailiffs; to fully and systematically analyze and evaluate the real situation of the law on bailiffs in Vietnam, thenceforth, it clarifies the theoretical and practical basis of this issue

Practically: recommendations in this study are built based on closely

theoretical foundation that is proven in practice, so it may be seen as a reliable reference in the process of building and completing the law on bailiffs in Vietnam today

7 Structure of the dissertation

Besides the introduction, conclusion and references, the dissertation includes 4 chapters: Chapter 1: Literature review Chapter 2: Theoretical issues of the law on bailiffs Chapter 3: The reality of the law on bailiffs and enforcement in Vietnam today Chapter 4: Orientation and solutions to improve the law on bailiffs in Vietnam today

Chapter 1 LITERATURE REVIEW 1.1 Overview of research situation

1.1.1 Research works on the concept and legal nature of the bailiff

In Vietnam and in the world, so far there have been many research works on the concept and legal nature of the bailiff from different perspectives and approaches For example, “Key principles of the new judicial execution system in the civil court” by Kennett and Wendy (1999); “Private bailiff feasibility study” by Armenia; DPK Consulting, San Francisco, CA, 2008 It can be said that, although this is just a scientific report, it has mentioned quite comprehensively (Bailiff – guarantor) “Judicial vs private” by Paredes, Ricardo, Andrés Crisosto and Philippe Martis, 2009; “Theoretical and practical basis on bailiff institution”, the Ministry-level project, Institute of Legal Science, Ministry of Justice, 2000 “Re-training profession of bailiff, experiences and operation of bailiffs in some countries” by the General Department

of Civil Judgment Execution – Judicial Academy, Ministry of Justice,

2016 These research works have fully mentioned the concept and legal nature of the bailiff under the existing provisions of Vietnam and the law of some countries around the world; in civil judgment execution, it

is the “freedom and self-agreement” in both the extent of enforcing and the way to organize of the judgment creditor (plaintiff) and the judgment debtor (defendant)

1.1.2 Research works on theoretical issues of the law on bailiff

In “Justice systems interact” by Ryann Elizabeth Manning (2010),

the author argues that there is interaction and mutual support between

“public justice” and “private justice” The author seeks to examine comprehensively legal theoretical system of justice including the law on bailiff in relations to the public legal system of many countries In

“Alternative dispute resolution and the rule of law in international

development cooperation” by James Michel (2011), the author argues

that, in modern society and integration, there are more and more complex disputes in many areas In his opinion, it is necessary to build laws and acts on the issue of “guarantor” that similar to bailiffs in the

understandings of many countries In “Justice development

programming in fragile and conflict-affected areas” by Abdul Salam

Azimi and Christiana Tah (2011), the authors examine the theoretical

system of private judgment execution and bailiffs In “Scheme on the

pilot implementation of bailiffs in HCMC”, the Ministry of Justice

(2009) This scheme is the Party and State’s policy on the socialization

of some contents of judicial activities, the necessity of implementing the project, objectives, models and operation of bailiffs in HCMC Ministry-level research project by the Institute of Legal Science Research - Ministry of Justice and Ho Chi Minh City Department of

Justice (1995), “Theoretical and practical basis on the bailiff

institution”, Dr Nguyen Duc Chinh (editor); “Organization of bailiffs”

by Nguyen Duc Chinh (2006), Justice Publishing House These are firstly published books in Vietnam on the bailiff institution since since the unification of the country In his research, Dr Nguyen Duc Chinh mentioned the need to re-establish and the pilot implementation of the bailiff institution in Vietnam in the context of judicial reform and

integration “Bailiff institution - proceedings of scientific conference”

by Ministry of Justice (2014), it includes a series of research reports of many scientists in the field of bailiff institution Actual situation of the law on bailiff in Vietnam and orientation to improve; implementation and results-achieved since the pilot implementation of bailiff institution

in our country “Historical value, legal-political views on the bailiff

institution” by Assoc Prof Dr Hung Cuong In this work, he proposed

the trend of completing and developing the bailiff institution in Vietnam

1.1.3 Research works on the law relating to bailiff

In the book titled “The process of law enforcement” by Anneli (2008), in his opinion, in the process of law enforcement, the implementation of decisions of the procedural agencies is very important He argues that the bailiff may undertake many more tasks

such as property auction and debt retirement In “Barriers to the

enforcement” by Elena Sandra, Alvaro Herrero and Keith Henderson

(2004), in the authors’ viewpoints, winning in the court is just “half of battle”, in fact, the judgment execution is just important issue The authors have examined the current models and regulations of bailiffs in many countries, thenceforth, they have proposed many legal solutions

to improve the efficiency of bailiff operation In “Enforcement of Court

Judgments, Lessons Learned from Latin America” by Henderson,

Keith, Angana Shah, Sandra Elena and Violaine Autheman (2004), the authors have proposed solutions to improve institution and operation such as empowerment to execute judgment under the supervision of judges and formulating the law on enforcement of judgments in which the bailiff is regarded as an organization of the state but held by private individuals “Handbook of bailiffs” was written during the pilot stage of the bailiff institution in HCMC, it has been so far amended and

supplemented In “Understanding the bailiff institution and the forms of

the bailiff office” by Nguyen Quang Minh and Nguyen Van Nghia In

this work, the authors have learned the implementation of bailiffs in Vietnam over the years The authors have proposed specific solutions to

deal with this issue In “Organization and operation of the bailiff in

Vietnam today” by Vu Hoai Nam (2013), the Justice Publishing House

This is the first monograph in Vietnam which is comprehensively examined bailiffs and the bailiff institution Along with scientific research, Master theses in law also mentioned the bailiff institution The authors have intensively examined bailiffs and theoretical and practical

basis, as well as solutions to improve the law on bailiffs However, this theoretical basis is still in the pilot stage

1.1.4 Research works on the trend of bailiff development

In “The role played by the profession of bailiffs in the proper and

efficient functioning of the judicial system: An overview with special consideration of the issues faced by countries in transition” by Alan

Uzelac (2002), the author has analyzed quite detail what is the profession of bailiff, its functions and tasks, thenceforth, the study pointed out the inevitable development trend of bailiffs by countries in transition In particular, he highlighted the orientations and models (public or private) to develop the profession of bailiffs in accordance

with each specific period In “Court reform in FYR Macedonia:

Sustained multitasking” by Oliver Lorenz (2009), he argues that the

function of directly enforcing judgments needs to be gradually transferred to private organizations He also argues that this trend is indispensable if one wants to reduce the workload of the local courts In

“Taking on the bailiff monopoly in Poland” by Krzysztof Józefowicz

(2007), he presented and analyzed arguments that the Ministry of Justice (his workplace) presented in Parliament, at that time there were still disagreements on the profession of bailiffs is regarded as an independent profession which must be approved by the law on

guarantor (Bailiff) In “Justice sector reform in Mongolia: Looking

back, looking forward” by Heike Gramckow and Frances Allen (2011),

the authors discussed quite a lot of bailiff activities They assessed the entire process of formation and development of bailiff in Mongolia, what has been done and what has not been done, the inadequacies of the existing law, thereby they proposed orientation to build bailiff in the future The authors also proposed to expand many functions and tasks

of bailiffs such as auction, debt management of debtors In “Some issues

on completing civil law enforcement” by Le Thu Ha, National Political

Publishing House, 2011, the author presented the role of bailiffs and proposed orientation is to develop the profession of bailiffs to support the activities of civil judgment enforcement agencies and improve the law on bailiffs in the process of completing the civil judgment execution law “Bailiffs and compliance with conditions in Vietnam

during the period of international integration” by Nguyen Vinh Hung in

Journal of Procuratorial Science, 2017 In this study, he analyzed

situation of bailiffs in some countries and Vietnam and then he argued that in the context of deep integration of Vietnam, the development of bailiffs is a mandatory trend and in the current context and in the future, bailiffs are increasingly developed in Vietnam “Developing procession

of bailiffs in Vietnam and new legal issues need to be improved” by Nguyen Van Nghia, 2018 In this study, he argued that gradually implementing socialization, forms and procedures to assign non-state agencies to perform judgment execution are considered one of the measures to improve the efficiency of civil judgment execution In

“Determining major policy direction for the development of the bailiff

law” by Dr Duong Thi Thanh Mai, Institute of Legal Science –

Ministry of Justice This project has given very clear scientific arguments on bailiffs

1.1.5 Assessment of research situation and issues that the dissertation inherits

First, many research works have clarified some necessary concepts

such as the concept of bailiff, the law of bailiff in Vietnam and around

the world Second, the above research works have pointed out the

theoretical and practical basis so that the profession of bailiffs to

continue to improve in the context of our country today Third, the

above research works have proved the formation and existence of bailiffs for a long time, with both popular and specific nature in terms of cultural and socio-economic development of countries in the world The

development of profession of bailiffs is an inevitable trend Fourth,

most of previous research works have been done by economic and historical perspectives, so the bailiff activities are clearly analyzed and

evaluated Fifth, from the perspective of jurisprudence, domestic

research works have partly described the current legal framework of bailiffs in Vietnam and pointed out the shortcomings and limitations that need to be overcome as well as given the proposals, recommendations and solutions to deal with such shortcomings

1.1.6 The issues need to be further examined in this dissertation

First, the assessment of the suitability/non-suitability of provisions

of the law on situation of profession of bailiffs in Vietnam which have not been thoroughly addressed The dissertation will focus on solving

this issue Second, currently, although the concepts of bailiff have been

basically clarified, both domestic and foreign research works have the same approach The dissertation will clarify this issue in order to find

out a better understanding in Vietnam today Third, due to the lack of

comprehensive and direct studies on the law relating to bailiffs, the

dissertation continues to further examine Fourth, the dissertation

utilizes jurisprudence - economics approach so as to propose solutions

to improve the law on this issue Fifth, although there have been many

research works on bailiffs, so far there have not been any direct study

on the law relating to bailiffs at the level of doctoral dissertation

1.2 Basis of research theory

1.2.1 Research theory: Theory of the protection of human rights

and civil rights; Theory of ensuring the effectiveness of the trial and enforcement of the Court's rulings to protect human rights, legitimate rights and interests of citizens; Theory of socializing public services in the field of justice

1.2.2 Research question:

Q1: What is the concept, legal nature and characteristics of the bailiff? How does the law govern bailiffs? What is the basic content of the law on bailiffs?

Q2: What is the current status of Vietnamese law prescribing the organization and operation of the bailiff? What are the advantages and disadvantages of implementing law on bailiff? Is the current status of the law relating to bailiffs in Vietnam really consistent with and meeting the requirements in practice?

Q3: To improve the law on bailiff, what are solutions need to be taken? What is the theoretical and practical basis of those solutions?

1.2.3 Research hypothesis: The law on bailiffs in Vietnam today is

not really consistent with the requirements of the profession of bailiffs

in Vietnam There are still inadequacies of the provisions of the law, it has not really created a favorable environment for the formation and development of the profession of bailiffs and the models of bailiffs in the current market economic conditions

1.2.4 Research approach: Systematic approach: Analyze and

evaluate bailiff issues under the Vietnamese law Historical approach: Studying the formation and development of bailiffs in Vietnam, the contributions of bailiffs to the state agencies’ activities and to provide legal services to people Interdisciplinary approach: There is a combination of many social sciences and humanities

Chapter 2 THEORETICAL ISSUES OF THE LAW ON BAILIFFS 2.1 Overview of the reasoning on bailiff

2.1.1 The concept and characteristics of bailiff

2.1.1.1 The concept of bailiff

A bailiff is a person who makes sure that the decisions and duties of

a court are obeyed Notify the court of opening and closing, calling on litigants, witnesses and keeping general order of the courtroom The duties outside the court Serving the documents by the request of the Court, setting up the legal basis by the provisions of the law, selling real estate and directly execute judgments and decisions of the Court A bailiff is a person who appointed by the State to carry out civil judgment execution, serving the documents and setting up the legal basis and other works in accordance with the relevant provisions of the law

2.1.1.2 Characteristics of bailiff: First, a bailiff is a person who

meets all the criteria prescribed by Vietnamese law and appointed by strict procedures to do a profession with a monopoly nature under the

Vietnamese law Second, they are not civil servants and do not receive

salaries from the State budget They are entitled to collect fees from their professional activities on the basis of the State’s prescribed fees and contracts signed with agencies, organizations and individuals who

require them to perform certain works Third, once appointed, they are

allowed to do works permitted by law including verifying conditions for judgment execution, directly executing civil judgments, serving documents, making legal basis and other works allowed by the law

Fourth, they have certain rights and obligations “similar to” state

officials and employees who assigned to do such works Fifth, there are

operational regulations, professional ethics and procedural law They are strictly controlled by the state management agencies

2.1.2 The legal nature of bailiffs

2.1.2.1 Judicial functions and duties of bailiffs