Notes Regarding Judgment Enforcement Agreement
Agreement is the civil right of citizens in civil transaction, which is recognized and protected by law. Accordingly, the 2015 Civil Code (Civil Code) stipulates the principle of respecting the discretion right of parties in civil relations. The Law on Enforcement of Civil Judgments, which was amended and supplemented in 2014 also recognized the right of parties to reach agreement during the judgment enforcement.
Implemented from May 1, 2020, Decree No. 33/2020 dated March 17, 2020 of the Government amends and supplements a number of Articles of the Government’s Decree No. 62/2015/ND-CP on detailing and guiding the implementation of a number of Articles of the Law on Enforcement of Civil Judgments (Decree 33/2020/ND-CP).
Judgment enforcement agreement is a solution that should be prioritized in civil judgment enforcement. It not only ensures the discretion right of the litigants but also shows its effectiveness in judgment enforcement, saves time and costs for the parties. Therefore, the law respects the right of parties to reach agreement during the judgment’s enforcement.
The question is, when will the involved parties have the right to perform the judgment enforcement agreement? What should the judgment creditor do in case the judgment enforcement agreement is violated? How will the judgment enforcement fee be paid in case the party perform the judgment enforcement agreement?
What is a judgment enforcement agreement?
Judgment enforcement agreement is a voluntary agreement of the involved parties to express their opinions, aspirations, exchanges in order to reach an enforcement agreement on part or whole of a legally effective judgment, decision based on the basis of established civil rights and obligations according to that judgment, decision.
Entities Participating in Judgment Enforcement Agreement
Entities participating in judgment enforcement agreement are involved parties – the judgment creditor and the judgment debtor. In fact, depending on each specific case, person with related interests, obligations might participate in the judgment enforcement agreement.
Principles of judgment enforcement agreement
The agreement’ content must not violate the prohibition of the law
According to Article 123 of the Civil Code: “Prohibitory provisions of law means the provisions of law that do not permit subjects to perform certain acts“. Thus, the content of the judgment enforcement agreement must not violate the prohibitions that the law bans the subjects from performing.
Article 123 of the Civil Code stipulates: “Social morality means common standards of conduct in social life, which are recognized and respected by the community”. Morality are spiritual values formed over time, recognized by everyone and voluntarily implemented. The agreement of the involved parties on judgment enforcement must ensure that it is not contrary to social morality.
The agreement does not affect the rights and interests of the third party or to evade the obligation of judgment Enforcement
A third party is defined as an individual or organization with related rights, interests or public interests. In case of reaching a judgment enforcement agreement, the parties must avoid the contents that affect the interests of a third party or evade the obligation to execute judgment.
On the other hand, the parties’ agreement must not contradict to reality. The judgment creditor and the judgment debtor must concur on the contents which associated with reality, and could be implemented.
Form of judgment enforcement agreement
An agreement on judgment enforcement must be made in writing, clearly stating the time, place, content of the agreement, and signed or fingerprinted by the involved parties.
For the purpose of preventing the agreement’s content from impacting legitimate rights, interests of a third party, in case of witnessing or recording the agreement of the involved parties, it is necessary to have an additional third person, if any.
The involved parties may request an Enforcer to witness the judgment enforcement agreement. And according to the new regulations of Decree No. 33/2020/ND-CP, witnessing the agreement must be performed at the headquarters of the civil judgment enforcement agency, this is one of the newly revised contents. Formerly, Decree 62/2015/NĐ-CP stipulated that the request for Enforcer to witness the agreement could be accomplish at the office of the civil judgment enforcement Agency or outside this Agency. In case the agreement witnessing performed outside the office of civil judgment enforcement Agency incurs expenses, the party requesting the witnessing enforcer must pay reasonable expenses to the civil judgment enforcement Agency.
Contents of judgment enforcement agreement
Contents of judgment enforcement agreement must include the followings:
- Time, place of judgment enforcement.
- Methods, contents of judgment enforcement: judgment enforcement agreement on part or whole of the obligation to execute judgment; legal consequences for non-performance or improper performance of the agreed content, etc.
Time of judgment enforcement agreement and issues that the Judgment Creditor shall take note in case of performing the agreement
The judgment enforcement agreement could be made at any time, could be concurred before requesting judgment enforcement or requested but the civil judgment enforcement agency has not issued the judgment enforcement decision or the civil judgment enforcement agency is enforcing the judgment
- In case involved parties reach a judgment enforcement agreement before requesting judgment enforcement or requested but the civil judgment enforcement agency has not issued a judgment enforcement decision, the parties are obliged to strictly comply with the agreed contents. In case the obligor fails to properly perform the agreed obligation and the statute of limitations for requesting judgment enforcement remains, the obligee shall be entitled to request judgment enforcement for the portion of non-performing obligation according to the contents of the judgment, decision.
- In case the civil judgment enforcement agency issued a judgment enforcement decision, the involved parties still have the right to reach an agreement on their own. In case the obligor fails to voluntarily perform the agreed contents, the judgment creditor shall notify the result of enforcement according to the agreement, and request the civil judgment enforcement agency to continue coordinating the judgment enforcement.
- In case the civil judgment enforcement agency is coordinating the judgment enforcement, and the judgment enforcement agreement is formed after the asset is sold or transferred to another person for judgment enforcement, the consent of the person bought or received asset must be obtained.
Obligation to pay judgment enforcement fees in case the parties perform the judgment enforcement agreement
If the involved parties reached an agreement on judgment enforcement, and personally delivered, received money, asset to each other within the time limit for voluntary judgment enforcement, the judgment creditor shall not bear judgment enforcement fee.
In case the civil judgment enforcement agency issued judgment enforcement decision but has not issued the coercive judgment enforcement decision or issued the coercive judgment enforcement decision but has not performed the judgment enforcement yet, but the involved parties reach judgment enforcement agreement, transferring or receiving money, asset to each other, the judgment creditor must pay one-third of the civil judgment enforcement fee according to calculation on the actual amount of received money, asset.
In case the civil judgment enforcement agency collected money or performed the coercive judgment enforcement, the judgment creditor must pay 100% of the civil judgment enforcement fee according to calculation on the actual amount of received money, asset. This article contains legal knowledge and legal terminology related to Law on Enforcement of Civil Judgments.
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