Decree 55/2020/ND-CP guiding the Law on Criminal Judgment Execution on judgment enforcement for commercial legal entities

DECREE

ON GUIDELINES FOR THE LAW ON ENFORCEMENT OF CRIMINAL JUDGMENTS CONCERNING ENFORCEMENT OF JUDGMENTS AGAINST CORPORATE ENTITIES

Pursuant to the Law on Organization of the Government dated June 19, 2015;

Pursuant to the Criminal Code dated November 27, 2015 (amended by the Law No. 12/2017/QH14 dated June 20, 2017);

Pursuant to the Criminal Procedure Code dated November 27, 2015;

Pursuant to the Civil Code dated November 24, 2015;

Pursuant to the Criminal Procedure Code dated June 14, 2019;

At the request of the Minister of Public Security;

The Government promulgates a Decree on guidelines for the Law on Enforcement of Criminal Judgments concerning enforcement of judgments against corporate entities.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides guidelines for execution of judgments against corporate entities as specified in Articles 160, 164, and 165 in the Law on Enforcement of Criminal Judgments.

Article 2. Regulated entities

This Decree applies to sentenced corporate legal entity (hereinafter referred to as corporate entities); regulatory agencies supervising corporate entities (hereinafter referred to as supervisory agencies); competent agencies, organizations, and individuals in enforcement of criminal judgments against corporate entities; the People’s Committees and agencies, organizations, and individuals related to the enforcement of criminal judgments against corporate entities.

Article 3. Entities engaged in execution of criminal judgments against corporate entities

1. Criminal enforcement agencies of provincial-level police departments, criminal enforcement agencies of military zones (hereinafter referred to as criminal enforcement agencies) shall assume the prime responsibility for enforcement of criminal judgments against corporate entities.

2. Supervisory agencies specified in clause 25 Article 3 of the Law on Enforcement of Criminal Judgments shall cooperate in enforcement of criminal judgments against corporate entities upon requests of criminal enforcement agencies.

3. Relevant agencies, organizations, and individuals, within their tasks and powers, shall cooperate with criminal enforcement agencies and supervisory agencies in enforcement of criminal judgments against corporate entities.

Article 4. Funding for enforcement of criminal judgments against corporate entities

1. Funding for enforcement of criminal judgments against corporate entities shall be financed by the state budget.

2. Funding for execution of criminal judgments against corporate entities performed by criminal enforcement agencies shall be set aside from the annual budget of criminal judgment enforcement.

3. Funding for enforcement of criminal judgments against corporate entities performed by supervisory agencies shall be estimated and set aside from their operational costs.

Chapter II

PROCEDURES FOR ENFORCEMENT OF CRIMINAL JUDGMENTS AGAINST CORPORATE ENTITIES

Article 5. Receipt of judgment enforcement decision

1. The criminal enforcement agency, on receiving a judgment enforcement decision, shall check whether such decision has required information as specified in Clause 1 Article 159 of the Law on Execution of Judgments. Upon discovering any unclear information in such decision, the criminal enforcement agency shall request the deciding court to provide explanation or correction.

2. Within 3 working days after receiving the judgment enforcement decision, the head of the criminal enforcement agency shall assign criminal enforcers to enforce the judgment against the corporate entity.

3. Within 3 working days after receiving the judgment enforcement decision, the criminal enforcement agency shall require the corporate entity in writing to file a report on measures taken to enforce the judgment enforcement decision, unless such a report has been received as prescribed in clause 4 hereof.

4. Within 3 working days after receiving the judgment enforcement decision, the corporate entity shall take the measures as prescribed in the Law on Enforcement of Criminal Judgments and file a report on performance to the criminal enforcement agency.

Article 6. Determination of supervisory agencies in judgment enforcement

1. The criminal enforcement agency shall, based on the judgment enforcement decision, determine supervisory agencies for effective cooperation in the judgment enforcement against the corporate entity.

2. Within 5 working days after receiving the judgment enforcement decision, the head of the criminal enforcement agency shall decide a list of supervisory agencies and send requests for cooperation, together with the judgment enforcement decision, to these supervisory agencies. This request shall clarify measures to be taken by the supervisory agencies as prescribed in Article 164 of the Law on Enforcement of Criminal Judgments to ensure the effective enforcement of the judgment.

3. Promptly after receiving such a request, the supervisory agency shall take measures stated in the request as prescribed in Article 164 of the Law on Enforcement of Criminal Judgments. Within 5 working days after receiving such request of the criminal enforcement agency, the supervisory agency shall notify the criminal enforcement agency in writing of how the request has been executed and how the sentence has been served by the corporate entity for recordkeeping.

Article 7. Summoning the legal representative of corporate entity for notice and enforcement warrant

1. Within 3 working days after receiving the judgment enforcement decision, the criminal enforcement agency shall serve a subpoena to the legal representative of the corporate entity for notice and enforcement warrant. The subpoena shall indicate full name, position of the summoned person; purpose of subpoena; designated time and venue.

The criminal enforcement agency shall notify the serving of subpoena to the same-level procuracy in order for the procuracy to designate procurator(s), where necessary.

2. Those appearing in the work session with the summoned person: The head (or an authorized deputy head) of the criminal enforcement agency; the criminal judgment enforcer in charge and certain enforcers in the criminal enforcement agency; the legal representative of the corporate entity; procuracy representative (if any). Where appropriate, the criminal enforcement agency may invite officers from agencies and units relevant to the judgment enforcement against the corporate entity to the work session. When the work session closes, a meeting minutes bearing signatures of the presiding person, summoned person, enforcer in charge, and procuracy representative is required (if they have attended).

3. If the summoned person cannot appear under subpoena on ground of force majeure event or objective hindrance, he/she shall file a report and seek a written approval from the criminal enforcement agency. In such circumstances, the criminal enforcement agency shall put off the work session but not exceeding 10 days after the judgment enforcement decision has been received.

If the summoned person is knowingly absent on the designated date, the criminal enforcement agency shall make a record on his/her absence and proceed the judgment enforcement.

Article 8. Judgment enforcement dossier

1. Within 3 working days after receiving the judgment enforcement decision, the criminal enforcement agency shall prepare judgment enforcement dossier; one dossier for a corporate entity.

2. The criminal enforcement agency shall manage and ensure completeness of required documents as prescribed in Article 161 of the Law on Enforcement of Criminal Judgments.

3. The dossiers of judgment enforcement against corporate entities shall be kept as prescribed by the Ministry of Public Security and the Ministry of National Defense.

Article 9. Announcement of judgment enforcement decision, certificate of complete serving of sentence, certificate of complete serving of judicial measure

1. Announcement of judgment enforcement decision

a) Regarding the criminal enforcement agency:

Within 3 working days after receiving a judgment enforcement decision, the criminal enforcement agency shall post such decision on its website.

If the criminal enforcement agency of provincial police department has no separate website, such decision shall be posted on the website of the provincial police department. If the provincial police department has no separate website, such decision shall be posted on the website of the criminal judgment enforcement management agency affiliated to the Ministry of Public Security.

If the criminal enforcement agency of military zone has no separate website, such decision shall be posted on the website of criminal judgment enforcement management agency affiliated to the Ministry of National Defense.

b) Regarding corporate entity:

Within 3 working days after receiving the judgment enforcement decision, the corporate entity shall announce such decision on its website, publication and post it up publicly at the head office and business location of the corporate entity as prescribed in point b clause 1 Article 160 of the Law on Enforcement of Criminal Judgments; and notify relevant agencies, organizations, and individuals of its serving of the penalty or judicial measure; and report the criminal enforcement agency and the supervisory agencies on its performance.

The criminal enforcement agency shall oversee and ensure that the judgment enforcement decision has been announced and posted up in proper manner. If the corporate entity fails to announce and post up the judgment enforcement decision, the criminal enforcement agency shall require it to do so; and then make a record on the failure and/or impose an administrative penalty as per the law depending on its severity.

c) Regarding the supervisory agency:

Within 5 working days after receiving a request for cooperation from the criminal enforcement agency, the supervisory agency as determined in Article 6 hereof shall announce the judgment enforcement decision on its website.

The provincial business registration authority shall post and announce the judgment enforcement decision on the national business registration portal applied to businesses incorporated and operating under the Law on Enterprises in the province.

d) The announcement and posting up of the judgment enforcement decision made by the criminal enforcement agency, the corporate entity and supervisory agencies as prescribed in points a, b and c of this clause shall be sustained throughout the judgment enforcement duration.

2. Announcement of certificate of complete serving of sentence, and certificates of complete serving of judicial measure:

a) The criminal enforcement agency shall announce certificates of complete serving of sentence and certificates of complete serving of judicial measure on its own website upon issuance of such certificates. If the criminal enforcement agency has no website, it shall announce the said certificates in a similar way to announcement of judgment enforcement decision as set out in point a clause 1 hereof;

b) The corporate entity must announce and post up its certificate of complete serving of sentence or certificate of complete serving of judicial measure within 3 working days after receiving such certificate. The announcement and posting up of that certificate shall be made in similar way to that of the judgment enforcement decision as specified in point b clause 1 hereof;

c) The supervisory agency must announce and post up the certificate of complete serving of sentence or certificate of complete serving of judicial measure within 3 working days after receiving such certificate. The announcement and posting up of that certificate shall be made in similar way to that of the judgment enforcement decision as specified in point c clause 1 hereof;

d) The certificate of complete serving of sentence or certificate of complete serving of judicial measure must has been announced and posted up for at least 30 days since the announcement or posting up date.

Article 10. Inspection of serving of sentence by corporate entities during the serving time

1. The corporate legal entity is required to report the criminal enforcement agency in writing on their serving of sentence every 3 months (unless their serving time is less than 3 months).

The criminal enforcement agency shall report the criminal judgment enforcement management agency affiliated to the Ministry of Public Security and the criminal judgment enforcement management agency affiliated to the Ministry of National Defense on the serving of sentence by the corporate entity.

2. Where it is necessary to verify certain matters regarding the judgment enforcement, the criminal enforcement agency shall require the corporate legal entity to report it in writing. The corporate entity is required to obey the requirement made by the criminal enforcement agency for reporting and disclosure of information and documents within its rights, responsibility and obligations.

3. Supervision of serving of sentence by the corporate legal entity:

a) After receiving a report from the corporate entity as prescribed in clause 3, clause 4 Article 5 hereof, the criminal enforcement agency shall undertake an inspection visit to the corporate entity;

b) The criminal enforcement agency shall, based on the requirements pertaining to judgment enforcement, inspect whether the corporate entity has served the sentence in proper way;

c) Within 15 days before the sentence term ends, the criminal enforcement agency shall, based on the requirements pertaining to judgment enforcement, inspect whether the corporate entity has served the sentence properly in order to issue a certificate of complete serving of sentence or certificate of complete serving of judicial measure;

d) On the inspection visit, as it deems appropriate, the criminal enforcement agency may request supervisory agencies to send officials to join the inspection or seek support from scientists or experts. The supervisory agencies must cooperate with the criminal enforcement agency in the inspection and send officials with necessary expertise to join the inspection. The corporate entity is required to cooperate and follow any request of the criminal enforcement agency during the inspection visit;

dd) The inspection visit to the corporate entity’s premises shall be recorded in writing and kept in the judgment enforcement dossier. The criminal enforcement agency shall report the criminal judgment enforcement management agency affiliated to the Ministry of Public Security and the criminal judgment enforcement management agency affiliated to the Ministry of National Defense on every inspection visit;

e) The inspection visit to the corporate entity shall be undertaken for the purpose of the judgment enforcement without infringing other operations of the corporate entity.

Article 11. Issuance of certificate of complete serving of sentence, and certificates of complete serving of judicial measure

1. The certificate of complete serving of sentence, certificate of complete serving of judicial measure shall be issued and sent in compliance with Article 166 of the Law on Enforcement of Criminal Judgments.

a) With respect to suspension of operation, ban from doing business, ban from operating in certain fields, prohibition from raising capital, the judgment enforcement agency shall issue a certificate of complete serving of sentence within 5 working days after the sentence term ends;

b) With respect to permanent shutdown, if there are valid grounds to determine that the corporate entity cannot resume its operation, the criminal enforcement agency shall cooperate with the supervisory agency in verifying and taking a record as be basis for judgment enforcement against the corporate entity;

c) With respect to compulsory restoration of original state, compulsory implementation of some measures for mitigation and prevention of consequences, the criminal enforcement agency shall issue a certificate of complete serving of judicial measure within 5 working days after the judicial measure has been completely served.

2. In a case where the corporate entity dissolves or goes bankrupt, the criminal enforcement agency shall complete procedures to end the serving of sentence as follows:

a) The criminal enforcement agency shall cooperate with the supervisory agencies to take a record on the dissolution or bankruptcy of the corporate entity;

b) The head of the criminal enforcement agency shall issue a decision to end the serving of sentence and send that decision to the sentencing court, the same-level procuracy, the corporate entity and the supervisory agencies;

c) The criminal enforcement agency, supervisory agencies shall announce the decision to end the serving of sentence against the corporate entity. Such announcement shall be made in compliance with clause 2 Article 9 hereof.

Chapter III

TRANSFER OF LIABILITY TO SERVE THE SENTENCE UPON CORPORATE REORGANZIATION

Article 12. Consideration of the sentence serving by corporate entity upon corporate reorganization

1. The corporate entity, to be reorganized, shall report the criminal enforcement agency and supervisory agencies in writing on their plan to serve the sentence upon the reorganization. The report must state how the circumstance has been, how the sentence has been served; measure, and liability to serve the sentence of the corporate entity after reorganization.

2. The supervisory agencies, whilst considering the request for reorganization filed by the corporate entity, shall notify the criminal enforcement agency in writing in order to take initiative in judgment enforcement upon the reorganization of the corporate entity.

3. Within 5 working days after receiving the notice of the supervisory agency, the criminal enforcement agency shall seek consultation from the sentencing court and the same-level procuracy in writing as for the judgment enforcement against the corporate entity after its reorganization.

Within 5 working days after receiving the consultation response from the sentencing court, the criminal enforcement agency shall give a response to the supervisory agency as for the judgment enforcement against the corporate entity after its reorganization.

4. Where the corporate entity has been reorganized, the criminal enforcement agency shall identify the entity incurring liability to serve the sentence after reorganization and notify that to the Department of Justice of province where the predecessor is headquartered for update to the database of criminal records.

Article 13. Enforcement of judgment upon total or partial division of corporate entity

1. Liability to serve the sentence total or partial division of corporate entity:

a) Should the criminal liability is transferred totally to one successor, such successor shall incur the entire liability to serve the sentence;

b) Should the criminal liability is transferred to more than one successor, such successors shall incur their equivalent liability to serve the sentence.

2. Judgment enforcement upon total or partial division of corporate entity:

a) Where the successor incurring the liability to serve the sentence is based in the same province or military zone with the predecessor, the criminal enforcement agency in charge of the predecessor shall keep enforcing the judgment as prescribed in the Law on Enforcement of Criminal Judgments and this Decree;

b) Where the successor incurring the liability to serve the sentence is based outside the province or military zone with the predecessor, the criminal enforcement agency in administrative division where the predecessor is headquartered shall prepare a judgment enforcement dossier and enforce the judgment as prescribed in the Law on Enforcement of Criminal Judgments and this Decree.

The criminal enforcement agency which has enforced the judgment against the predecessor shall copy and forward the judgment enforcement dossier to the criminal enforcement agency in charge of the successor.

3. The length of time that the predecessor has served the sentence shall be carried forward to the serving time of the successors.

Article 14. Enforcement of judgment upon consolidation or acquisition of corporate entity

1. The successor, upon transfer of rights and liabilities from a predecessor which has been serving a sentence, is obliged to assume the liability to serve such sentence.

2.  Enforcement of judgment upon consolidation or acquisition of corporate entity:

a) Where the successor incurring the liability to serve the sentence is based in the same province or military zone with the predecessor, the criminal enforcement agency in charge of the predecessor shall keep enforcing the judgment as prescribed in the Law on Enforcement of Criminal Judgments and this Decree;

b) Where the successor incurring the liability to serve the sentence is based outside the province or military zone with the predecessor, the criminal enforcement agency in administrative division where the predecessor is headquartered shall prepare an judgment enforcement dossier and enforce the judgment as prescribed in the Law on Enforcement of Criminal Judgments and this Decree;

c) The length of time that the predecessor has served the sentence shall be carried forward to the serving time of the successor.

Article 15. Enforcement of judgment upon conversion to other business form of the corporate entity

1. In a case where the corporate entity converts its business form, its liability to serve the sentence remains unchanged.  The corporate entity shall report the criminal enforcement agency on its conversion of business form.

2. The supervisory agency shall notify the criminal enforcement agency in a case where the corporate entity converts its business form for continued judgment enforcement against the corporate entity.

3. The criminal enforcement agency of provincial police department or military zone shall keep enforcing the judgment as per the Law on Enforcement of Criminal Judgments and this Decree.

Chapter IV

RESPONSIBILITIES OF REGULATORY AGENCIES IN JUDGMENT ENFORCEMENT AGAINST CORPORATE ENTITIES

Article 16. Responsibilities of the Ministry of Public Security in judgment enforcement against corporate entities

1. Perform tasks and entitlements as per Article 195 of the Law on Enforcement of Criminal Judgments in judgment enforcement against corporate entities.

2. The criminal judgment execution management agency affiliated to the Ministry of Public Security shall:

a) Guide and direct the criminal enforcement agency of provincial police department to enforce judgments against corporate entities;

b) Cooperate with relevant agencies and units in judgment enforcement against corporate entities;

c) Disclose information about judgment enforcement against corporate entities;

d) Issue forms and documents on judgment enforcement against corporate entities;

dd) Release statistics and reports on judgment enforcement against corporate entities;

e) Perform other tasks as directed by the Minister of Public Security.

Article 17. Responsibilities of the Ministry of National Defense in judgment enforcement against corporate entities

1. Perform tasks and entitlements as per Article 196 of the Law on Enforcement of Criminal Judgments in judgment enforcement against corporate entities.

2. The criminal judgment execution management agency affiliated to the Ministry of National Defense shall:

a) Guide and direct the criminal enforcement agency of military zone to enforce judgments against corporate entities;

b) Cooperate with relevant agencies and units in judgment enforcement against corporate entities;

c) Disclose information about judgment enforcement against corporate entities;

dd) Release statistics and reports on judgment enforcement against corporate entities;

dd) Perform other tasks as directed by the Minister of National Defense.

Article 18. Responsibilities of ministries and agencies in judgment enforcement against corporate entities

1. Ministries and ministerial-level agencies shall, within their functions and duties, cooperate with the Ministry of Public Security, the Ministry of National Defense in judgment enforcement against corporate entities.

2. Direct affiliates to cooperate with the criminal judgment execution management agency affiliated to the Ministry of National Defense, the criminal judgment execution management agency affiliated to the Ministry of National Defense, the criminal enforcement agency of provincial police department, the criminal enforcement agency of military zone to enforce judgments against corporate entities.

Article 19. Responsibilities of the People’s Committees in judgment enforcement against corporate entities

1. The People's Committee of province shall:

a) Perform tasks and powers as prescribed in clause 1 Article 204 of the Law on Enforcement of Criminal Judgments;

b) Direct supervisory agencies under its authority to perform tasks and powers as to judgment enforcement against corporate entities.

2. The People's Committee of district shall:

a) Direct specialized agencies, the People’s Committees of communes to cooperate with the criminal enforcement agency of provincial police department in judgment enforcement against corporate entities in the district;

b) Direct supervisory agencies under its authority to perform tasks and powers as to judgment enforcement against corporate entities.

3. The People’s Committee of commune shall cooperate with the criminal enforcement agency of provincial police department in judgment enforcement against corporate entities in the commune.

Chapter V

IMPLEMENTATION

Article 20. Entry in force

This Decree comes into force as of July 15, 2020.

Article 21. Implementation

Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies, the Presidents of People’s Committees of provinces and central-affiliated cities and regulated entities of this Decree shall implement this Decree./.

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