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COUNCIL OF JUDGES SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.:
05/2012/NQ-HDTP
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Hanoi,
December 03, 2012
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RESOLUTION
GUIDANCE ON THE IMPLEMENTATION OF A NUMBER OF PROVISIONS
IN THE PART II "PROCEDURES FOR SETTLEMENT OF CASES AT THE COURT OF FIRST
INSTANCE" OF THE CODE OF CIVIL PROCEDURE WHICH HAS BEEN AMENDED AND
SUPPLEMENTED UNDER THE LAW AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF
THE CODE OF CIVIL PROCEDURE
COUNCIL OF JUDGES
SUPREME PEOPLE'S COURT
Pursuant to the Law on Organization of
People's Court;
In order to properly and consistently
implement the provisions in the Part II “Procedures for settlement of cases at the Court of first instance" of the Code of Civil Procedure
which has been amended and supplemented under the Law amending and
supplementing a number of articles of the Code of Civil Procedure dated March
29, 2001 (hereafter referred to as CCP);
After obtaining the consensus of opinion from
the Chief Procurator of the Supreme People's Procuracy and the Minister of
Justice,
DECIDES:
Article 1. Scope
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Article 2.
Right to sue specified in Article 161 of CCP
When deemed necessary to initiate lawsuit at a
competent Court to request the protection of legitimate rights and interests,
the individuals, agencies or organizations should submit a petition in
accordance with the provisions of Clause 2, Article 164 of the CCP and should
distinguish as follows:
1. For individual who has sufficient civil act
capacity, he/she may prepare the petition for lawsuit by himself/herself or ask
for someone to do it. In the section name and address of the petitioner in the
petition, the name and address of that individual must be specified. At the
same time, at the end of the petition, that person must sign or fingerprint.
2. For
individual who is at full age of fifteen to the under age of eighteen having
his/her civil act capacity or without
restricted civil act capacity and having participated in labor under the
labor contract or civil transction by his/her own property, he/she may prepare
the petition for lawsuit by himself/herself or ask for someone to do it in the
case of dispute related to that labor contract or civil transaction. In the
section name and address of the petitioner in the petition, the name and
address of that individual must be specified. At the same time, at the end of
the petition, that person must sign or fingerprint.
3. For individual who is a minor (except for
cases guided in Clause 2 of this Article), the person who loses or is restricted
his/her civil act capacity, his/her legal representative may prepare petition
for lawsuit or ask for someone to prepare it of the case. In the section name
and address of the petitioner in the petition, the name and address of the
legal representative of that person must be specified. At the same time, at the
end of the petition, that representative person must sign or fingerprint.
4. For
individuals in the cases specified in Clauses 1, 2 and 3 of this Article who
are the illiterate, blind so can not prepare petition for lawsuit by
themselves, sign or affix fingerprint, they may ask for someone to prepare the
petition for lawsuit with a witness. The witness must sign to certify the
lawsuit and the contents of lawsuit in the petition before the person having
the authority to certify of the communal People’s Committee. The person having
the authority to certify of the communal People’s Committee shall make
certification before the petitioner and the witness;
“Witness” in this case must be the person having
civil act capacity specified in Article 57 of CCP;
5. For agency or organization, its legal
representative may prepare the petition for lawsuit or ask for someone to do
it. In the section name and address of the petitioner, the name and address of
that agency or organization and the legal representative of that agency or
organization. At the same time, at the end of the petition, the representative
person of that agency or organization must sign or fingerprint.
Where the legal representative of agency or
organization carries out the lawsuit, in the section ‘’ Name and address
of petitioner’’, after specifying the name and address of the agency or
organization, the name and address of legal representative of that agency and
organization. In the section ‘’Petitioner’’ at the end of petition, the name of
agency or organization and the position of legal representative of that agency
or organization must be specified. The legal representative of agency or
organization signs and writes his/her full name and affixes the seal of the
agency or organization;
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Where the representative office or branch of
legal entity carries out the lawsuit arising from the transactions done by that
representative office or branch, in the section ‘’Name and address of
petitioner’’, after the name and address of the agency or organization are
specified, the name and position of the head of representative office or branch
of legal entity, authorization document (number, date) and position of legal
representative of the authorizing legal entity must be specified. In the
section ‘’Petitioner’’ at the end of petition, the name of legal entity and
position of the head of representative office or branch of legal entity; the
head of representative office or branch of legal entity signs and write his/her
full name and affixes the seal of legal entity or of the representative office
or branch of legal entity;
6. When deemed eligible for handling the case,
the determination of plaintiff’s capacity in the case is carried out as
follows :
a) For the cases guided in the Clause 1 and 2 of
this Article, the plaintiff in the case is the right petitioner;
b) For the cases guided in the Clause 3 of this
Article, the plaintiff is the minor or the persons who lose civil act capaciity
or have the restricted civil act capaciity. Because these persons do not have
their civil act capaciity, their legal representatives shall carry out the
rights and procedural obligations of the plaintiff at the Court;
c) For the agency or organization guided in
Clause 5 of this Article, the agency or organization suing is the plaintiff of
the case. The legal or authorized representative shall participate in the
proceedings and carry out the rights and procedural obligations of that agency
or organization that is the plaintiff;
Article 3. The right to
initiate a lawsuit to protect the legitimate rights and interests, public and
state interests specified in Article 162 of CCP
1. Agency or organization has the right to
initiate a lawsuit to request the Court to protect the public and state
interests specified in Clause 3, Article 162 of CCP when meeting the following
conditions :
a) Agency or organization has duties or rights
in performing the state management and social management in a certain field;
b) The public and state interests in need of
protection of the Court must belong to the field of which that agency or
organization takes charge;
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The agency of Culture – Information to has the right to initiate a lawsuit of civil case to
request the Court to force the individual, agency or organization having acts
of infringing the cultural heritage under the posession of entire people to
compensate for damages caused by the infringement;
2. When deemed eligible for handling the case against
which the agency or organization initiates a lawsuit specified in Article 162
of CCP, the determination of plaintiff’s capacity in the case is carried out as
follows :
a) For the agency of population - families
and children or the Women's Union initiates a lawsuit against the case of
marriage and family, the plaintiff is :
a1) The person who is represented by the agency
of population - families and children or the Women's Union to initiate a
lawsuit to request the Court to force the person who does not perform his/her
supporting obligations voluntarily to perform it in accordance with the
provisions in Clause 3, Article 55 of the Law on Marriage and Family;
a2) The child who is represented by the agency
of population - families and children or the Women's Union to initiate a
lawsuit to request the Court to identify the father or mother for minor child
or adult child losing civil act capacity specified in Clause 3, Article 66 of
the Law on Marriage and Family;
a3) The
father or mother who is represented by the agency of population -
families and children or the Women's Union to initiate a lawsuit to request the
Court to identify the child for the father or mother losing civil act capacity
specified in Clause 3, Article 66 of the Law on Marriage and Family;
b) In case where the superior Union of the
grassroots Union initiates a lawsuit against the labor dispute to protect the
legitimate rights and interests of collective of laborer , the plaintiff is the
collective of laborer having legitimate rights and interests to be protected;
c) In case where the agency or organization
initiates a lawsuit to request the Court to protect the public or state
interests, the plaintiff is the right agency or organization initiating the
lawsuit;
Article 4. Scope of lawsuit
specified in Article 163 of CCP
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a) The settlement of this legal relation
requires the settlement of another legal relation;
Ex : A initiates a lawsuit to request the
Court to force B to return the land use right. At the same time, A initiates a
lawsuit to request the Court to force C to dismantle the works that have been
built on that land.
b) The settlement of the legal relations with
the same person concerned and the same type of dispute specified in a similar
article of law in one of the Articles 25, 27, 29 and 31 of the CCP.
Ex : A initiates a lawsuit to request the
Court to force B to repay a debt of 100 million dong. At the same time, A also
initiates a lawsuit to request the Court to force B to return the motobike B
has rents from A due to the expiration of rent term;
Article 5. Form and content
of petition specified in Article 164 of CCP
In order to ensure the proper and uniform
preparation of petition, the Court requires the petitioner to prepare the
petition under the Form No.01 issued together with this Resolution. The Court
shall publicize the form of petition and guidance on the use of form of
petition at the Court;
Article 6. Documents and
evidences attached to the petition specified in Article 165 of CCP
In principle, when submitting petition to the
Court, the petitioners must enclose it with documents and evidences to prove
that they are the persons having the right to initiate a lawsuit and their
requests are well-grounded and lawful. However, in case of objective reasons,
they cannot submit them immediately, they must submit the initial documents and
evidences to prove that the lawsuit is well-grounded. Other documents and
evidences, the petitioners must supplement by themselves or as required by the
Court in settling the case;
Ex 1 : When submitting petition to the
Court for the settlement of divorce (with legal registration of marriage),
child support, property division, in principle, the petitioners must enclose
all documents and evidences of marriage relation, common children and property
of spouse. If they cannot send all of these documents and evidences, they
should send copy of marriage certificate, copy of birth certificate of children
(if there is any dispute over child support) with the petition;
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Article 7. Procedures for
receipt of petition specified in Article 167 of CCP
1. The Court should have a book to record the
date of receipt of petition of person concerned as a basis for determining the
lawsuit date;
2. The Court carries out the procedures for
receving the petitioner’s petition as follows :
a) Where the
petitioner directly submits petition at the Court under the provisions at Point
a, Clause 1, Article 166 of CCP, the Court shall record the date, month, year
of petition submission in the receipt book. The lawsuit date is determined as
the filing date;
b) Where the person concerned send petition by
post under the provisions at Point b, Clause
1, Article 166 of CCP, the Court shall record the date, month and year of
receipt of petition sent by post in the receipt book and the date, month, year
of filing date according to the date, month, year with the postmark. The
envelop with postmark must be enclosed with the petition. The lawsuit date is
determined as the date with postmark. If the date, month, year of postmark on
the envelop cannot be determined, the Court shall note in the receipt book
"impossible to determine the date, month, year of postmark." In this
case, the lawsuit date is determined as the date the Court receives the
petition sent by post;
c) The Court must record (or affix seal of
receipt) the date, month, year of receipt of petition on the left corner of
petition;
d) The delivery and receipt of evidences
submitted by the person concerned or enclosed with the petition shall comply
with the guidelines in Article 4 of Resolution No. 04/2012/NQ-HDTP dated December
03, 2012 of the Council of Judges of the Supreme People’s Court guiding the
implementation of a number of provisions on ‘’Proof and evidence’’ of the
Code of Civil Procedure amended and supplemented under the Law amending and
supplementing a number of articles of the Code of Civil Procedure;
dd) After receiving the petition, the Court
shall issue the receipt of petition to the petitioner. If the Court receives
the petition sent by post, it shall send the receipt to the petitioner;
3. Right after receiving the petitioner, the
assignment of person to review the petition is done as follows :
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b. For People’s Court of province or
centrally-affiliated city (hereafter referred to as provincial Court), the
Tribunal President or Vice President authorized by the President, the Chief of
Court or Deputy Chief of Court authorized by the Tribunal President to assign a
Judge to review the petition;
4. Within five working days, from the date of
receipt of petition, the Judge assigned to review the petition must have one of
the following decisions :
a) Conducting the procedures for handling the
case. If the case is under his/her settlement jurisdiction under the provisions
in Article 171 of CCP and the guidelines in Article 10 of this Resolution;
b) Transferring the petition to
the competent Court and giving a written notice to the petitioner. The
procedures for transferring petition is done under the provision in Article 37
of CCP and the guidelines in Article 10 of Resolution No. 03/2012/NQ-HDTP
dated December 03, 2012 of the Council of Judges of the Supreme People’s Court
guiding the implementation of a number of provisions in the first Part ‘’
General regulations’’ of the Code of Civil Procedure amended and supplemented
under the Law amending and supplementing a number of articles of the Code of
Civil Procedure;
c) Returning the petition to the petitioner, if
subject to one of the cases specified in Article 168 of CCP and the guidelines
in Article 8 of this Resolution and giving a written notice to the petitioner;
Article 8. Return of
petition, the consequence of return of petition specified in Article 168 of CCP
1. The petitioner who has no right to initiate a
lawsuit is the person who does not fall into one of the subjects specified in
Article 161 and 162 of CCP and the guidelines in Article 2 and 3 of this
Resolution;
The petitioner having no sufficient civil act
capacity is the person who is unable to perform the procedural rights and
obligations or authorizes his/her representative to take part in the civel
proceedings under the provisions in Article 57 of CCP;
2. There is not sufficient conditions for
lawsuit is the case the persons concerned have agreed or the law has
regulations on conditions for lawsuit (including the form and content of petition)
but the person concerned has initiated a lawsuit when still lacking one of
those conditions;
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Ex 2: In the petition, the
plaintiff did not properly record the address of the defendant, although the
Court has required the addition but beyond the time limit fixed by the Court
that the plaintiff has not added it.
Ex 3: Company A and B have signed the goods sale
contract and agreed to settle disputes by arbitration. When there is any
dispute over the contract, Company A shall initiate a lawsuit against Company B
at the Court before requesting the arbitration to settle the dispute. The Court
considers that the arbitration agreement between the parties is legal in
accordance with the provisions of the Law on Commercial Arbitration, the Court
shall, based on the provisions at Point d, Clause 1, Article 168 of CCP, return
the petition and guide them through the procedures for settlement of dispute at
the Arbitration;
3. When determining the conditions for civil
lawsuit, the subject of lawsuit is the land use right:
a) For the disputes concerning who has the land
use right, that dispute must be mediated at the People’s Committee of commune,
ward and town where the disputed land is located under the provisions in
Article 135 of the Land Law;
b) For the disputes concerning the land use
right such as: disputes over transactions related to the land use right,
disputes over the inheritance of land use right, division of common property as
the land use right of spouse,…these disputes shall not have to be mediated at
the People’s Committee of commune, ward and town where the disputed land is
located but the procedures for mediation must be done under the provision of
CCP;
4. The case is not under the settlement
jurisdiction of the Court is the cases not subject to one of the disputes
specified in the Articles 25, 27, 29 and 31 of CCP;
5. The return of petition must be notified in
writing by the Court to the petitioner and the Procuracy at the same level
stating the reasons for return of petition subject to what circumstance
specified in Clause 1, Article 168 of CCP. This notice may be delivered
directly or sent to the petitioner by post. The delivery or sending of this
notice must be monitored by a book;
6. Clause 1, Article 168 of CCP has annulled the
grounds for return of petition because the statute of limitations has expired.
Therefore, the Court must not make excuses for the expiration of statute of
limitations to return the petition;
In previous cases, the Court has returned the
petition due to the expiration of statute of limitations but the person
concerned has requested the lawsuit again, the Court handling the case and the
person concerned must pay the court fee if not subject to being exempted as
provided for by law;
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7. The petitioners have the right to re-file
petition for lawsuit when they fall into one of the cases specified in Clause
3, Article 168 and the Points c, e, g, Clause 1, Article 192 of CCP and
documents provided for by law;
‘’Other cases provided for by law’’
specified at Point d, Clause 3, Article 168 of CCP are the cases which have not
been specified in the CCP but specified in the other legal normative documents
or after the CCP takes effect, they shall be specified in the legal normative
documents issued then or in the international agreements in which the Socialist
Republic of Vietnam is a member;
Ex 1 : Where the Court conducts the
successful mediation of reunion specified in Article 88 of the Law on Marriage
and Family and makes a decision to recognize the agreement on successful
mediation between the persons concerned. During the time of reunion, these
persons concerned have conflicts again and file petition for divorce to the Court,
the Court shall, based on Article 85 of the Law on Marriage and Family, handle
and settle the case by the general procedures;
Ex 2 : Where the Court has rejected the
divorce petition of the husband who asks for divorce from his wife who are
pregnant or nursing a child under twelve months of age, the Court only handles
the case of divorce of husband again when meeting the conditions for lawsuit
specified in Clause 2, Article 85 of the Law on Marriage and Family;
Article 9. Requirement for
amendment and supplementation of petition specified in Article 169 of CCP
1. When or after receiving the petition,
considering that the petition has not sufficient contents specified in Clause
3, Article 164 of CCP, depending on the requirement for amendment and supplementation
of petition, the Court shall require the petitioner to modify or modify the
petition within the time prescribed by the Court, but no more than 30 days,
from the date the petitioner receives the document of the Court requiring the
amendment and supplementation of petition. In special cases, the Court may
accept the extension, but no more than 15 days, from the expiration date
prescribed above by the Court.
2. The requirement for amendment and
supplementation of petition must be made in writing specifying the issues to be
modified or supplemented for the petitioner. This document may be deilvered
directly or sent to the petitioner by post. The delivery or sending of this
notice must be monitored by a book;
3. The time to carry out the amendment and supplementation
of petition is not included in the statute of limitations. The date of lawsuit
is still determined as the date to file the petition, if the petitioner submits
the petition at the Court directly or the date of postmark if the petition is
sent by post
4. After the
petitioner has modified or supplemented the petition as required by the Court,
the Court shall continue handling the case by the general procedures specified in
Article 171 of CCP. If the time limit prescribed by the Court is expired but
the petitioner fails to modify or supplement as required by the Court, then the
Court shall, based on Clause 2, Article 169 of CCP, return the petition and
accompanied documents and evidences to the petitioner;
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6. In case where in the petition, the petitioner
has fully and properly specified the address of the defendant and the person
with the related interests and obligations in accordance with the provisions in
Clause 2, Article 164 of CCP and the guidelines in Article 5 of this Resolution
and the Form No.01 issued with this Resolution but they do not have the fixed
residence and regularly change their residence without notifying their new
address to the petitioner and the Court in order to hide their address and
evade obligations to the petitioner, this case is deemed that the defendant and
the person with the related interests and obligations intentionally hide their
address. The Court shall handle the case by the general procedures;
7. If the
petitioner does not know or properly specify the address of the
defendant and the person with the related interests and obligations in the
petition, the petitioner shall find the address of the defendant and the person
having the related interests and obligations;
Article 10. Handling the
case specified in Article 171 of CCP
1. Where the petitioner fails to pay the advance
of court fee within 15 days specified in Clause 2, Article 171 of CCP due to
unforeseen events or objective obstacles, then as provided for in Clause 1, Article
161 of the Code of Civil Procedure 2005, the time of unforeseen events or
objective obstacles shall not be included in the time limit for payment of
court fee;
2. The Court must give the petitioner a time
limit of seven days, after the end of the time limit of fifteen days, from the
date of receipt of notice of the Court on the payment of court fee, the
petitioner must submit the receipt of payment to the Court. After this time
limit, the petitioner shall have to submit the receipt of payment to the Court,
the Court shall do the following procedures :
a) If the
petition has not been returned, the Judge shall handle the case;
b) If the
petition has been returned but the petitioner proves that he/she has
paid the court fee at prescribed time limit, but submitted the receipt of
payment to the Court not in a timely manner due to unforeseen events or
objective obstacles, the Judge shall require the petitioner to re-submit
petition and accompanied documents and evidences and conduct the handling of
case by the general procedures;
c) If after the Court returns the petition, the
petitioner pays the court fee and submit the receipt of payment to the Court,
if not due to unforeseen events or objective obstacles, this case is regarded
as re-filing of lawsuit petition;
3. When the time limit as guided in Clause 2 of
this Article is over but the petitioner fails to submit the receipt of payment
to the Court, then the Court shall inform the petitioner of not handling the
case due to the failure to pay the court fee;
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1. The Tribunal President of district-level
Court shall assign or authorize a Tribunal Vice President to assign a Judge to
settle the case;
The Tribunal President of provincial-level Court
shall authorize a Tribunal Vice President or a Chief of Court or Deputy Chief
of Court to assign a Judge to settle the case;
2. When assigning a Judge to settle the case,
the Judge who has reviewed the petition and handled the case shall be given an
assignment. This assignment does not have to make a decision;
3. For complex cases, the settlement may be
prolonged, another alternate Judge may be assigned to ensure the continuation
of judgment;
Article 12. The right to
request the defendant's counterclaim specified in Article 176 of the CCP
1. Deemed as the request for the defendant’s
counterclaim over the plaintiff or the person with related interests and
obligations having independent request if it is independent and not related to
the request the plaintiff and the person with related interests and obligations
having independent request asking for the Court’s settlement;
Ex :
Plaintiff A has filed a petition to require the defendant B to pay the debt of
the rent of five million dong in 2005. The defendant B requires the plaintiff A
to pay the amount of money of three million dong for house repair and the tax
of land use the defendant has paid on behalf of the plaintiff. In this case,
the request of defendant B is regarded as the counterclaim over the plaintiff
A;
2. Deemed as the defendant’s opinion and not the
defendant’s counterclaim request over the plaintiff or the person with related
interests and obligations having independent request if the defendant has the
request related to the request of the plaintiff or the person with related
interests and obligations having independent request (such as requesting the
Court not to accept the request of the plaintiff or the person with related
interests and obligations having independent request or only accept a portion
of request of the plaintiff or the person with related interests and
obligations having independent request);
Ex : Plaintiff C has filed the petition to
request the Court to recognize the ownership of a car and force the defendant
Article to return the car to him/her. The defendant D has requested the Court
not to recognize this car does not belong to C but him/her or belongs to both.
In this case, the request of defendant Article is not regarded as the
counterclaim request over the plaintiff C;
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Ex : Refer to example 1, Clause 1 of this
Article
4. The
counterclaim request of the defendant results in the exclusion of a part or the
whole of the request of the plaintiff and the person with related interests and
obligations having independent request is the case where the defendant has the
counterclaim request over the plaintiff the person with related interests and
obligations having independent request and if that request is accepted, the
acceptance of a portion or the whole of request of the plaintiff and the person
with related interests and obligations having independent request is excluded
because there is no ground;
Ex : A has an own car sold to C but says to
his/her child (B is A’child) that he/she rents the car out to C at 5 million
dong each month. After that, A dies, B initiates a lawsuit to require C to pay
the rent in a year of sixty million dong. C has the counterclaim request to ask
the Court to recognize the ownershp of the car with the dispute. If the Court
accepts the counterclaim request of C, that results in not accepting all of the
request of B to require B to pay that rent;
5. There is a relation between the counterclaim
request of defendant and the request of the plaintiff and the person with
related interests and obligations having independent request. That is the case
where these two requests have a relation with each other and if they are
settled in the same case, it shall make the settlement of the case more correct
and rapidly;
Ex : Mrs.M initiates a lawsuit to require
Mr. N to support the child P with an amount of three hundred thousand dong. Mr.
N has a counterclaim request to ask the Court to determine that P is not his
child;
Article 13. Procedures for
counterclaim request or independent request specified in Article 178 of CCP
1. The procedures for counterclaim request or
independent request is done the same as those of lawsuit of the plaintiff
specified in Articles 164, 165, 166, 167, 168, 169 and 170 of CCP and the
guidelines in the Articles 5, 6, 7, 8 and 9 of this Resolution;
2. Where the Court receives the petition for the
counterclaim request from the defendant or the independent request of the
person with related interests and obligations to settle in the same case, then
(the time limit for preparing the judgment is from the date of completion of
procedures for counterclaim and independent request) the date of handling the
case to calculate the time limit for preparing the judgment of that case is
defined as follows :
a) Where the defendant or the person with
related interests and obligations are exempted or shall not have to pay the
court fee, the date of handling the case is the date the Court receives the
petition for counterclaim request of the defendant or the independent request
of the person with related interests and obligations with the accompanied
documents and evidences;
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Ex : On
March 15, 2013, the Court handles the case under the petition of plaintiff A.
The Court shall give a notice of the handling of case to the defendant B. After
receiving the notice, on March 31, 2013, the defendant B files a petition for
counterclaim request over the plaintiff A. The Court shall conduct the
procedures for reviewing the petition for counterclaim request. On April 15,
2013, the defendant B submitted the receipt of court fee. In this case, the
date the Court handles the case is determined as April 15, 2013 (The Court
shall record the date of handling the case in the case handling book). In case
where the defendant B does not have to pay the court fee, the date of handling
the case is re-determined as March 31, 2013;
c) Where there are a lot of defendants having
their counterclaim request or there are a lot of persons with related interests
and obligations, the date of handling the case is determined as follows :
c1) As the date the Court receives the petition
for counterclaim request or the last petition for independent request. If they
are eligible for exemption or no need of payment of court fee;
c2) As the date the last person submits the
receipt of payment of court fee, if they are subject to the cases of paying the
court fee;
Article 14. Time limit for
judgment specified in Article 179 of CCP
Article 179 of CCP specifying the time limit for
preparing the judgment, therefore, the time limits specified in this Article
are included in the time limit for trial preparation. Depending on each
specific case, the time limit for trial preparation is calculated as
follows :
1. Where there is a decision on judgment of case
a) If the time limit for preparation of
judgement shall not have to be extended, the maximum time limit for trial
preparation from the date the Court handles the case is:
- Four months
for the cases specified in Article 25 and 27 of CCP;
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b) If the time limit for the judgment has to be
extended, then the maximum time limit for trial preparation is from the date
the Court handles the case is:
- Four months
for the cases specified in Article 25 and 27 of CCP;
- Three
months for the cases specified in Article 29 and 31 of CCP;
c) In cases guided at Point a and b, Clause 1 of
this Article but the court has not been opened within one month from the date
there is a decision on bringing the case to the trial because of plausible
reasons, the time limit for preparation of judgement for each case is added a
maximum of one month;
2. In case where there is a decision on
suspending the settlement of civil case;
In case where there is a decision on suspending
the settlement of civil case, the time limit for preparation of judgement ends
on the date of making a decision on suspension. The time limit for
preparation of judgement shall be re-calculated from the date the Court
proceeds with the settlement of the case when the reason for suspension no
longer exists.
3. Extension of time limit for trial preparation
For the cases
with complex nature or due to objective obstacles specified at Point a and b,
Clause 1, Article 179 of CCP but the time limit is nearly expired (the
remaining time limit for trial preparation is no more than five days) but the
Judge in charge of settling the case finds that the case is complex adn cannot
make one of the decisions specified in Clause 2, Article 179 of the CCP, it is
required to immediately notify the Tribunal President in order to make a
decision on extension of the time limit for trial preparation. This extension
must not exceed the time limit specified inthe last paragraph, Clause 1,
Article 179 of CCP and the guidelines at Point b, Clause 1 of this Article.
Upon the end of expired time limit, the Judge in charge of settling the case
must make one of the decisions specified in Clause 2, Article 179 of the CCP;
a)
“ Cases with complex nature’’ are the cases having a lot of persons
concerned and related to a lot of fields, having a lot of documents and
conflicting evidences that need more time to study and summarize documents in
the case record or consultation from specialized agencies or complex technical
expertise; the cases where the persons concerned are foreigners residing abroad
or Vietnamese people residing, studying and working abroad, the property in
foreign countries in need of time for judicial authorization for consular or
diplomatic agencies of Vietnam abroad or for foreign Courts,… However, for the case of having to wait for the
opinion of the specialized agencies, or wait for the result of complex
technical expertise or the result of judicial authorization whose time limit
for trial preparation has expired (including the extended time), the Judge
shall, based on Clause 4, Article 189 of the CCP, make a decision on suspending
the settlement of civil case;
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Ex :
People’s Court of X district, H province in the mountainous area has made a
decision to bring the case to trial and fix the date of trial opening. However,
two days before the date of trial opening, there is flash flood. The head
office of People’s Court of X district is damaged. Because of remedy of flash
flood, repair of head office, the People’s Court of X district cannot proceed
the trial within the prescribed time limit;
c) “Plausible
reasons’’ specified in Clause 3, Article 179 of CCP are understood that the
events occur in objective and unforeseen way such as : there is a need of
change or reassignment of procedure conducting person named in the decision to
bring the case to trial but the competent person has not appointed the substitute;
the case with complex nature has been judged a lot of times at various level of
Courts, thus there is not sufficient Judge to judge that case which must be
transferred to the superior Court or waiting the secondment of Judge from
another Court,…that hinder the Court to conduct the trial within the prescribed
time limit;
Article 15. Unmediated
civil cases specified in Article 181 of CCP
1. "State Property" means the property
under the state ownership specified in Article 200 of the Civil Code 2005 and
is amended by the provisions of section 1, Chapter XIII of the Civil Code 2005.
"Request for compensation for damage to the
State property" is the case where the State property is damaged by
unlawful behavior, due to an invalid contract, breach of civil obligation, ...
and the person assigned to be the owner of that State property claims for
compensation.
When conducting the provisions in Clause 1,
Article 181 of CCP, it is necessary to differentiate :
a) Where the state property is allocated to the agency,
organization or armed unit for management, use or investment in the State-owned
enterprises of which the State implements its ownership through the competent
agencies, then when there is a request for compensation for damage to this type
of property, the Court must not mediate in order for the persons concerned to
reach an agreement upon the settlement of case;
b) Where the
State property is invested by the State in the State-owned enterprises or used
as contributed capital in joint venture enterprises with the invested capital
of other owners as stipulated by the provisions of the Enterprise Law, the
Investment Law allowing enterprises to own, use, make a decision on the
property or take responsibility before the State for that property in business and
production, then when there is a request for compensation for damage of that
property, the Court shall conduct the mediation in order for the persons
concerned to reach an agreement upon the settlement of case by the general
procedures;
2. The Court
must not conduct the mediation of civil cases generated from illegal
transactions (transactions in violation of law) or in contradiction with social
morality, if the mediation is for the parties to continue those transactions.
Where the parties only have disputes over the settlement of consequence of
invalid transaction due to violation of law or social morality, the Court shall
have to conduct the mediation in order for the persons concerned to reach an
agreement with each other upon the settlement of consequence of invalid
transaction;
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Where the defendant was duly summoned for the
second time but still deliberately absent, the court shall record the failure
of mediation due to the absence of defendant and make a decision on bringing
the case to judgment by the general procedures. In case at the trial, the
defendant requests the Court to adjourn the jusgment for mediation, the Court
shall not accept but create conditions for the parties to reach agreement on
the resolution of the case.
Article 17. Composition of
mediation trial specified in Article 184 of CCP
1. The Court
shall summon all persons related to the settlement of the case specified in
Clause 3, Article 64 and 184 of CCP to be present at the mediation trial;
2. If the mediation is related to all of the
persons concerned in the case but with the absence of any person concerned, the
Judge shall adjourn the mediation trial to re-open another trial with the
presence of all persons concerned. The judge shall announce the adjournment of
the mediation trial under the Form No. 06b issued with this Resolution;
3. If there are a lot of legal relations in the
case related to other persons concerned and the settlement of those legal relation
is only related to the person concerned present anf not related to the person
concerned absent, the judge shall conduct the mediation of issues related to
the person concerned absent;
For the case mentioned above but the persons
concerned have reach an agreement on the settlement of the case, that agreement
is only valid for the persons present and is recognized by the Judge’s decision
if it does not affect the rights and obligations of the person concerned
absent. Where their agreement affects the the rights and obligations of the
person concerned absent. this agreement is only valid if the person concerned
absent at the mediation trial give a written consent;
Where prior
to the mediation, the person concerned absent has a written opinion but after
the completion of mediation, the contents of mediation of the persons concerned
are different from the contents of document expressing the will of the persons
concerned absent, the Court shall collect the written opinion from the person
concerned absent from the mediation trial on the agreements of the persons
concerned at the mediation trial. The procedures and time limit for collecting
the written opinion from the person concerned shall comply with the civil
procedure law. Where the persons concerned agrees with the result of mediation,
then the date of receipt of wirtten opinion from the person concerned is
determined as the date the persons concerned have reached an agreement on the
issues to be settled in the case;
Article 18. Contents of
mediation specified in Article 185 of CCP
1. The Court shall consider the requests of the
persons concerned in the case to be settled in order to conduct the mediation
of each request in logical order;
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2. When
conducting the mediation, in addtion to the compliance with the principles
specified in Article 184 of the CCP, depending on legal relations, the Judge
shall announce the legal regulations related to the settlement of the case to
the persons concerned so that they could reach an agreement voluntarily in
relation to their rights and obligations on the settlement of the case; analyze
the legal consequence of successful mediation to the persons concerned (such as
the relationship between the persons concerned, payment of court fee,...). The
judge must not foretell the persons concerned that who is right or wrong or how
wrong or right or if the persons concerned fail to reach an agreement, how the
direction of judgment is...;
Article 19. Mediation order
specified in Article 185a of CCP
The Judge assigned to settle the case shall
conduct the mediation in the order as follows :
1. The Judge presiding over the mediation opens
the mediation session as follows :’’Today, on date......., the People’s
Court .....conducts the mediation of the case on...., I declare the opening of
the mediation’’.
2. The Judge presiding over the mediation
introduces full name of the procedure conductiong persons, inspector,
interpreter, other individuals and agencies participating in the mediation (if
any);
3. The Court
Clerk reports to the Judge presiding over the mediation on the presence and
absence of the person participating in the mediation with the summons or notice
of the Court and reason for absence. The Judge presiding over the mediation
re-checks the presence and check ID of the participants of the mediation
session of the person participating in the mediation with the summons or notice
of the Court (specified in Clause 3, 4 and 5, Article 184 of CCP);
4. The Judge
presiding over the mediation shall announce the rights and obligations of the
persons concerned and other persons participating in the proceedings specified
in the corresponding articles of CCP;
Ex :
Explaining the rights and obligations to the plaintiff as specified in Article
58 and 59 of CCP,...For the interpreters, the Judge presiding over the
mediation require them to commit to fulfill their duties; for the witnesses as
adults, require them to ensure their honest declaration.
7. The Judge
presiding over the mediation under the content of mediation specified in
Article 185 of CCP and the guidelines in Article 18 of this Resolution;
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Article 20. Record of
mediation specified in Article 186 of CCP
1. The Court
Clerk records the mediation with complete contents specified in Clause 1 of
Article 186 and the signatures or fingerprints of the persons specified in
Clause 2, Article 186 of CCP and and under the Form No.07 issued together with
this Resolution;
2. When the persons concerned have reached an
agreement upon the issues to be settled in the case, the Judge and the Clerk
shall record the successful mediation. The successful record must have the
content of agreement of the persons concerned under the Form No. 08a issued
with this Resolution;
The Judge presiding over the mediation signs and
affixes the seal of the Court on the record. The persons concerned
participating in the mediation must sign or affix fingerprint on the successful
record of mediation which shall be sent immediately to the persons concerned
participating in the mediation;
For the persons concerned absent but the
mediation is subject to the cases specified in Clause 3, Article 184 of CCP,
the Court shall send the successful record of mediation immediately to the
persons concerned absent;
3. In the successful record of mediation,
write:‘’ Within 07 days, from the date of recording the mediation, if any
person concerned changes his/her opinion on the agreement, it must be made in writing
and sent to the Court’’. If the persons concerned come to the Court to ask for
the change of agreement, the Judge shall record the opinion on the change of
their agreement. The record must have the signatures or fingerprints of the
persons concerned and be kept in the case file. The change of opinion about
this agreement must be notified by the Court to the other persons concerned
related to that agreement;
Article 21. Making a
decision on recognizing the agreement of the person concerned specified in
Article 187 of CCP
1. Within seven days, from the date of recording
the successful mediation without any change of opinion about that agreement
from the persons concerned, in general principle, the Judge presiding over the
mediation shall make a decision on recognizing the agreement of the persons
concerned. If the Judge cannot make a decision due to the objective obstacles,
the Tribunal President shall assign another Judge to make a decision on
recognizing the agreement of the persons concerned.
2. The Judge shall only make a decision on on
recognizing the agreement of the persons concerned if they have agreed with
each other on the settlement of the entire case (legal relations and requests
of the persons concerned in the case) and the court fee. Where the persons
concerned have agreed with each other on the settlement of the entire case but
failed to reach an agreement on the responsibility for the court fee or rate of
court fee, the Court shall not recognize the agreement of the persons concerned
and open a trial to hear the case;
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Article 22. Temporarily
suspending the settlement of civil case specified in Article 189 of CCP
1. The Judge makes a decision on temporarily
suspending the settlement of civil case regardless of with or without the
applicant's request in one of the cases specified in Article 189 of the CCP.
2. “Where the agencies or organizations have
been merged, divided or split without any agency or organization inheriting the
rights and procedural obligations of that agency or organization’’ is the case
where there is a decision from the agency or organization having the authority
over the merger, division, splitting of that agency or organization but the new
agency or organization has not been established or has been established but is
not eligible for operation under regulations of law for the type of that agency
or organization;
‘’Where the agency or organization has been
dissolved but there has not been any agency or organization inheriting the
rights and procedural obligations of that agency or organization’’ is the case
where the agency or organization inheriting the rights and procedural
obligations has not been determined yet under the provisions at Point a and b,
Clause 2, 3, Article 62 of CCP;
3. “ Legal representatives of the persons
concerned’’ specified in Clause 3, Article 189 of CCP consist of the legal
representative and authorized representative. The legal representatives of the
persons concerned are determined under the provisions of Civil Code 2005,
Article 73 of CCP and the guidelines in Article 21 of Resolution No. 03/2012/NQ-HDTP
dated December 03, 2012 of the Council of Judges of the Supreme People’s Court
guiding the implementation of a number of provisions in the Part I “General
provisions’’ of the Code of Civil Procedure amended and supplemented under the
Law amending and supplementing a number of provisions of the Code of Civil
Procedure;
4. “It is required to wait for the result of
settlement of other related cases or events that must be settled by another
agency or organization before settling the case as prescribed by law’’
specified in Clause 4, Article 189 of CCP is the case where the result of
settlement of that civil, criminal or administrative case, or the result of
settlement of the competent agency or organization as a basis for determining
the jurisdiction of the Court, the right to initiate a lawsuit against the
case, legal status, person involved in the proceedings, legal relation of
dispute or other grounds for the Court to settle the case comprehensively,
correctly and in accordance with law;
‘’Another case related’’ to the case the
Court is settling is the civil, criminal and administrative case;
‘’Events prescribed by law’’ must be the
events directly affecting the settlement of case, and if the case has not been
settled in advance by another agency or organization, the settlement of Court
is in violation of law;
Ex 1 :
In the case of dispute over the property sale contract between the plaintiff A
and the defendant B. After handling the case, the People’s Court of district X
receives the notice from the People’s Court of district Y stating that this
Court is handling the case between the plaintiff C and the defendant A on the
dispute over the ownership of that property. In this case, the People’s Court
of district Y needs to make a decision on temporarily suspending the settlement
of case of dispute over the property sale contract between A and B to wait for
the result of settlement of case of dispute over the ownership of that property
from the People’s Court of district Y. Based on the result of settlement of the
People’s Court of district Y, the People’s Court of district X shall continue
settling the case by the general procedures;
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5. ‘’It is required to wait for the result of
implementation of judicial authorization or wait for the provision of documents
and evidences from the agency or organization as required by the Court in order
to settle the case but the time limit is over’’ specified in Clause 5, Article
189 of CCP is the case where the Court has to make a decision to temporarily
suspend the case to carry out the judicial authorization or there has not been
the result of implementation of judicial authorization or has not received
documents or evidences from the agency or organization but the time limit for
trial preparation (including the extended cases) is over or despite of having a
decision to bring the case to trial or at the trial, if the implementation of
judicial authorization is necessary or it is required to ask for the provision
of new documents or evidences from the agency or organization to settle the
case, the Court must make a decision to temporarily suspend the case;
Ex : As
provided for in Clause 4, Article 93 of CCP, the Court must conduct the authorization
to gather evidences abroad in case of necessity. In case of expiration of time
limit for trial preparation (including the extended case), there has not been
the result of authorization to gather evidences as prescribed, the Court must
make a decision to temporarily suspend the case to wait for the result of
judicial authorization from the foreign competent authority. After having the
result of judicial authorization from the foreign competent authority or after
the expiration of judicial authorization as prescribed by law, the Court shall
proceed with the settlement of case by the general procedures;
6. ‘’Other cases prescribed by law’’ specified
in Clause 6, Article 189 of CCP are the cases as a basis for the Court to make
a decision on suspending the settlement of civil case and they are not
specified in the CCP but specified in other legal normative documents or
specified after the effective date of CCP in the legal normative documents
issued later or in the international agreements in which the Socialist Republic
of Vietnam is a member.
Article 23. Consequence of
suspending the settlement of civil case specified in Clause 3, Article 190 of
CCP
1. When the decision on suspending the
settlement of civil case is appealed or protested by the appellate procedures
and if the appeal or protest is valid, the Court of First Instance must send
the record of case, the appeal or protest to the Court of Appeal specified in
Article 255 of CCP;
2. In case of expiry of appeal or protest, there
are complaints or requests for the decision on temporarily suspending the
settlement of civil case, it is necessary to make a distinction as
follows :
a) Where the Court of First Instance considers
that the decision on temporarily suspending the settlement of civil case is not
right, it shall continue settling the suspended cases because the reasons for
suspension no longer exist;
b) Where the Court of First Instance considers
that the decision on temporarily suspending the settlement of civil case is
right and remains, the request for the decision on temporarily suspending the
settlement of civil case must be considered by the cassation procedures;
Article 24. Suspending the
settlement of civil case specified at Point c and k, Clause 1, Article 192 of
CCP
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a) In
case where there is no counterclaim request or the independent request, the
Court shall accept the withdrawal of petition from the petitioner and make a
decision on suspending the settlement of civil case based on the Point c,
Clause 1, Article 192 of CCP.
b) Where there are the counterclaim request of
the defendant and the independent request of the person with the related
interests and obligations, depending on each case, the settlement is as
follows:
b1) Where the petitioner withdraws his/her
petition, the defendant still keeps his/her counterclaim request and the person
with the related interests and obligations still keeps his/her independent
request, the Court shall make a decision on suspending the settlement of civil
case for the request of the petitioner who has withdrawn his/her petition;
b2) Where the petitioner withdraws his/her
petition, the defendant withdraws all his/her couterclaim request but the
person with the related interests and obligations still keeps his/her
independent request, the Court shall make a decision on suspending the
settlement of civil case for the request of the petitioner who has withdrawn
his/her counterclaim request;
b3) Where the petitioner withdraws his/her petition
and the person with the related interests and obligations still keeps his/her
independent request, but the defendant still keeps his/her counterclaim
request, the Court shall make a decision on suspending the settlement of civil
case for the request of the petitioner and the independent request of the
person with the related interests and obligations;
c) After making a decision on suspending the
settlement of civil case for the request of the person concerned having
withdrawn his/her petition as guided at Point b, Clause 1 of this Article, the
Court shall continue to settle the case by the general procedures for the
counterclaim request of the defendant or the independent request of the person
with the related interests and obligations and based on each specific case,
re-determine the procedural status of the persons concerned in accordance with
the provisions in Article 219 of CCP and the guidelines in Article 33 of this
Resolution;
d) Where the petitioner withdraws all his/her
requests for lawsuit and the defendant withdraws all his/her counterclaim
requests, the person with the related interests and obligations withdraws all
his/her independent request, the Court shall make a decision on suspending the
settlement of civil case;
2. ‘’Other cases prescribed by law’’ specified
at Point k, Clause 1, Article 192 of CCP are the cases as a basis for the Court
to make a decision on suspending the settlement of civil case and they are not
specified in the CCP but specified in other legal normative documents or
specified after the effective date of CCP in the legal normative documents
issued later or in the international agreements in which the Socialist Republic
of Vietnam is a member.
Article 25. Consequence
of suspending the settlement of civil case specified in Clause 1, Article 193
of CCP
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1. Where the decision on suspending the
settlement of civil case is specified at Point a, b, d, dd, h, i and k, Clause
1, Article 192 of CCP, the persons concerned have no right to initiate a
lawsuit to request the Court to re-settle the civil case, if the lawsuit of the
subsequent case is not different from the previous case in terms of the
plaintiff, the defendant and the legal relations in dispute.
Where the Court makes a decision on suspending
the settlement of case specified at Point d and dd, Clause 1, Article 192 of
CCP, before making a decision, the Court must explain the consequence of
suspending the settlement of case to the persons concerned that they shall have
no right to re-initiate a lawsuit of that case;
Where the agency, organization (in case of no
plaintiff), or plaintiff specified at Point d and dd, Clause 1, Article 192 of
CCP only withdraw the lawsuit document without requesting the Court to continue
settling the case when there are certain conditions under agreement or
negotiation between the persons concerned, the Court should specify those
conditions in the decision on suspending the settlement of case as basis for
re-initiating a lawsuit of the case of the persons concerned;
Therefore, in case of suspending the settlement
of case specified at Point d, dd, Clause 1, Article 192 of CCP, in the decision
on suspending the settlement of case, the Court must clearly state the legal
consequence of the suspension that the persons concerned shall not have the
right to re-initiate a lawsuit of that case, if the lawsuit of subsequent case
is not different from the previous case in terms of plaintiff, defendant and
legal relations in dispute;
2. Where the decision on suspending the civil
case specified at Points c, e and g, Clause 1, d 192 of CCP, or the case is
subject to the provisions in Clause 3, Articles 168 of CCP, the person
concerned has the right to initiate a lawsuit to request the Court to re-settle
that case by the general procedure, if the statute of limitations of the case
specified in Article 159 of CCP remains, although the lawsuit of subsequent
case is not different from the previous case in terms of plaintiff, defendant
and legal relations in dispute;
3. In case of
decision on suspending the case specified at Point g, Clause 1, Article 192 of
CCP and Clause 77 of the Law on bankruptcy, if after that the Court makes a
decision on suspending the procedures for recovery of business operation and
returns the case record to the competent Court, then that Court shall proceed
with the case by the general procedures;
Article 26. Decision on
bringing the case to trial specified in Article 195 of CCP
1. The decision on bringing the case to trial
must have all information specified in Clause 1, Article 195 of CCP and under
the Form No.12 issued with this Resolution. The decision on bringing the case
to trial must be issued within 07 working days before the date of trial
opening;
2. In order not to delay the trial and to ensure
the compliance with the provisions of CCP, if the People’s Juror assigned to
take part in the proceedings cannot continue the trial after there is a
decision on bringing the case to trial, simultaneously with the assignment of
official People’s Juror, it is necessary to assign an alternative People’s
Juror and specify the name of People’s Juror in the decision on bringing the
case to trial;
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Where the Procuracy at the same level participates
in the trial, the Court shall send the record of the civil case with the
decision on bringing the case to trial as guided in the Joint Circular No.
04/2012/TTLT-VKSNDTC-TANDTC dated August 01, 2012 of the Supreme People’s
Procuracy, the Supreme People’s Court guiding the implementation of a number of
provisions of the Code of Civil Procedure on supervising the compliance with
the law in civil proceedings;
Article 27. Presence of the
persons concerned, the representatives and the persons protecting the
legitimate rights and interests of the persons concerned specified in Article
199 of CCP
Where the
defendant having his/her counterclaim request has summoned the second time but
still absent without any representative participating in the trial not due to
the unforeseen events, the Court shall suspend the settlement for the
defendant’s counterclaim request, unless that person requests for default
judgment. The defendant having the counterclaim request has the right to sue
for that counterclaim request if the statute of limitations remains;
Article 28. Judgment in
case of absence at the trial of the persons concerned and the persons
protecting the legitimate rights and interests specified in Article 202 of CCP
1. If the Court sends the first summons but the
persons concerned and the persons protecting the legitimate rights and
interests are still absent without requesting the
default judgment under provisions in Clause 1 Article 199 of CCP, whether or
not there is a good reason, the court shall adjourn the trial.
The Court only conducts the hearing without the
presence of the persons concerned and the persons protecting the legitimate
rights and interests if the Court validly sends the first summons subject to
one of the cases as follows:
a) There is one or several persons concerned,
representative of one or several persons concerned, person protecting the
legitimate rights and interests of one or several persons concerned requesting
for the default judgment and the remaining persons concerned, the representative
of remaining persons concerned, the person protecting the legitimate rights and
interests of the remaining persons concerned still attend the trial by the
summons of the Court;
b) All of the persons concerned and their
representatives and persons protecting the legitimate rights and interests in
the case request the Court for default judgment. In this case, the trial panel
shall, based on the documents in the record, settle the case under regulations
of law;
2. Where the Court sends the second summons, the
persons concerned or their representatives and persons protecting the
legitimate rights and interests must be present at the trial. If they are
absent not due to the unforeseen events, the handling shall apply as provided
for in Clause 2, Article 199 of CCP;
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Where the Court does not receive the
notification from the persons concerned and their representatives and persons
protecting the legitimate rights and interests and still conduct the trial
without their presence. If after the judgment or decision of the Court takes
effect, the persons concerned lodge their complaints and provide evidence of
their absence from the trial due to the unforeseen events, their complaints
shall be considered by the appellate procedures;
Article 29. Duration of adjournment
and decision on adjournment specified in Article 208 of CCP;
1. The duration of adjournment of the first
instance trial is within 30 days from the date the trial Panel make a decision
on adjournment;
If the trial for a case is adjournd many times,
the duration of each adjournment shall not exceed the permitted limit of 30
days, from the date the trial Panel makes a decision on adjournment of that
time. The duration of adjournment is not included in the duration of trial
preparation specified in Article 179 of CCP and guided in Article 14 of this
Resolution. However, in order to protect the rights and interests of the
persons concerned and ensure the re-opening of trial as prescribed, after the
adjournment, the Court must have the plan for re-opening of trial as soon as
possible without necessarily waiting up to 30 days to re-open the trial;
2. The decision on adjournment must have the
main contents specified in Clause 2, Article 208 of CCP and under the Form
No.14 issued with this Resolution;
3. Where the date to re-open the trial is fixed,
in the decision on adjournment, the time and location to re-open the trial must
be specified. If the date to re-open the trial is not fixed, the time and
location to re-open the trial in the decision shall be notified later by the
Court;
The Chairman of trial shall, on behalf of the
trial Panel, announce the decision on adjournment to the persons present at the
trial and hand over the decision to them immediately. For the persons absent
and the Procuracy at the same level, the Court shall send this decision on
adjournment immediately. This decision is regarded as the new sommons for the
persons concerned, if the time and location to re-open the trial are specified
in the decision;
Where there is a change of time and location to
re-open the case specified in the decision on adjournment, the Court must
notify immediately the Procuracy at the same level and the persons taking part
in the proceedings of the time and location to re-open the case;
4. The trial Panel must not adjourn the trial
for the reason that at the trial, the persons concerned request te adjournment
to ask someone to protect their legitimate rights and interests or authorize
other persons to take part in the proceedings on their behalf.
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If the duration of adjournment is nearly expired
without result of inspection, valuation or appraisal, the Judge shall, based on
Clause 4, Article 189 of CCP, make a decision on temporarily suspending the
settlement of case;
Article 30. Cour record
specified in Article 211 of CCP
1. The court
record must have all contents specified in Clause 1, Article 211 of CCP. As
provided for in Clause 1, Article 211 of CCP, the court record must state all
developments at the trial from the beginning to the end of trial. In the court
record, the it is not required to specify the Court’s decision;
2. After the end of the trial and before
submitting the court record to the Chairman of trial to re-check and sign it,
the Court Clerk must check the court record by himself/herself to correct its
inaccuracies. The Chairman of trial and the Court Clerk must re-check the court
record and sign it with the Court Clerk. After the Chairman of trial re-checks
and signs the court record, if any inaccuracy is found in the court record and
must be modified, the Court Clerk must not correct it by herself but report to
the Chairman of trial to consider the amendment. When there is one of persons
specified in Clause 4, Article 211 of CCP requesting to read the court record,
the Chairman of trial must allow him/her to read the court record. If this
person requests to record the amendments or supplements in the court record,
the Court Clerk must record these amendments or supplements as required; It is
required not to erase or correct directly on the recorded issued but record the
amendments or supplements following the contents of the court record. The
persons specified in Clause 4, Article 211 of CCP request for the recording of
amendments or supplements in the court record, record the legal proceedings or
participation in proceedings and full name of those persons. The issues
recorded in the court record in need of amendment or supplementation and the
specific amendments or supplements must also be recorded. If there are a lot of
requesters, record the amendments or supplements of each person one by one.
After that, the requesters must sign for certification;
Ex 1 (In case where there is a person requesting
the recording of amendments or supplements)
The amendments or supplements as requested by
plaintiff Nguyen Van A :
1. On the issues recorded in the line (lines)
from the top (or bottom up) page…of the court record for amendment or
supplementation to be recorded as follows :
...
2. ...
...
...
...
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Amendments or supplements:
1. As requested by Prosecutor Tran Van B:
a. ...
b. ...
2. As requested by defendant Le Thi M:
a. ...
b. ..
Article 31. Opening of
trial specified in Article 213 of CCP
1. The
Chairman opens the trial and reads the decision on bringing the case to trial;
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2. After hearing the Court Clerk to report that
there are persons concerned absent from the trial, the trial Panel must go into
the deliberation room to discuss the adjournment as provided for in Clause 2,
Article 210 of CCP;
3. The Chairman shall conduct the checking of ID
of the persons concerned present at the trial as follows :
a) The Chairman ask the persons concerned about
their full names, date of birth, place of residence (permanent residence), occupation
(if the persons concerned are individuals); name and address of head office (if
the persons concerned are agencies or organizations); for the legal
representative of the person concerned: full name, age, occupation, position,
residence, relation with the person concerned;
b) Where the documents in the record and the
declaration of the persons concerned on ID are different, it is required to
verify the accuracy of their ID;
4. For the announcement of rights and
obligations of the persons concerned and of the other persons taking part in
the proceedings, the Chairman of trial shall announce their rights and
obligations in the corresponding articles of law of CCP;
Ex : For plaintiffs, explaining their
rights and obligations specified in Article 58 and 59 of CCP,…
For the interpreter and inspector, the Chairman
shall require them to commit their fulfilment of task; for the witnesses as
adults, require them to give truthful declaration;
5. In case the trial Panel decides the
adjournment, when re-opening the trial, the Chairman shall not read the
decision on bringing the case to trial again;
If the trial Panel decides the adjournment but
during the time of preparing the opening of trial, there are changes or
re-assignment of proceeding conducting persons named in the list of decision on
bringing the case to trial, the Court shall notify the persons specified in
Clause 2, Article 195 of CCP;
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...
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The change or supplementation of request of the
persons concerned at the trial is only accepted by the trial Panel if this
change or supplementation does not exceed the scope of lawsuit request,
counterclaim request or independent request initially expressed in the petition
of plaintiff, the counterclaim petition of defendant, petition of independent
request of the persons with related interest and obligations;
The change or supplementation of request of the
persons concerned must be recorded in the court record. In case where the trial
Panel accepts the request for supplementation or change of the persons
concerned, it must record it in the judgment;
Where the persons concerned withdraw a part of
request before and at the trial, the Court shall record it in the remark and
decision in the judgment and the decision on withdrawal of request of the
persons concerned;
Article 33. Change of
proceeding status specified in Article 219 of CCP
Where there is a person concerned withdrawing
his/her request, depending on each case, do as follows :
1. If the plaintiff withdraw all his/her lawsuit
request but the defendant still keeps his/her counterclaim request as provided
for in Clause 1, Article 219 of CCP, the trial Panel shall :
a) Make a decision on suspending the trial for
the entire request withdrawn of the plaintiff as provided for in Clause 2,
Article 218 of CCP;
b) Announce the change of proceeding status of
the persons concerned. The defendant still keeping his/her counterclaim request
becomes the plaintiff; the plaintiff withdrawing his/her entire request becomes
the defendant;
2. If the plaintiff withdraws his/her lawsuit
request and the defendant withdraws his/her counterclaim request, but the
person with related interests and obligations still keep his/her independent
request as provided for in Clause 2, Article 219 of CCP, the trial Panel
shall :
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b) Announce at the trial the change of
proceeding status depending on the relation between the persons concerned
related to the independent request of the person with related interests and
obligations;
3. The change of proceeding status of the
persons concerned must be recorded in the court record and in the judgment;
Article 34. Recognizing the
agreement of the persons concerned specified in Clause 1, Article 220 of CCP
1. Before moving on to the question, the trial
Panel need to explain the contents specified in Article 220 of CCP, asking them
if they have agreed with each other on the settlement of case; if yes, ask them
whether they are voluntary or not or coerced or not and consider if the
agreement is in contradiction with the law or social morality or not or tell
them the consequence of the Court’s decision on recognizing that agreement,
then the persons concerned must not appeal against this decision. The Procuracy
must not protest the decision under the appellate procedures; the decision of
the Court to recognize the agreement of the persons concerned on the settlement
of case shall take legal effect.
2. The agreement of the persons concerned must
be recorded in the court record. According to the provisions in Article 210 of
CCP, the trial Panel shall discuss and make a decision on recognizing the
agreement of the persons concerned on the settlement of case at the courtroom;
Article 35. Deliberation
specified in Article 236 of CCP
1. The
members of the trial Panel must settle all issues of the case by majority voting
on each issue, particularly the main issues : based on the documents and
evidences verified and considered at the trial, through the questions and
arguments at the trial, by considering the opinions of the persons taking part
in the proceedings, the prosecutor (if any) has sufficent grounds to accept the
whole or a part of all requests of the plaintiff, the counterclaim request of
the defendant, the independent request of the person with related interest and
obligations or not accept the whole or a part of all requests of the persons
concerned. If having sufficient grounds for acceptance, specify the Point,
Clause and Article of the corresponding legal normative documents and the civil
court fee of first instance.
2. Where the trial Panel of the First Instance
Court only has a Judge and two People’s Jurors, upon expression of opinion (or
voting), the People’s Jurors shall express their opinions (or vote) first, the
Judge as the Chairman of the trial shall express hid/her opinions (or vote)
later. Where the trial Panel has two Judges and three People’s Jurors, the
People’s Jurors shall express their opinions (or vote) first, then the Judge
not as the Chairman and finally the Judge as the Chairman shall express his/her
opinions (or vote);
3. The members of the trial Panel with minority
opinions have the right (not obligation) to express their opinions in separate
document and this document is attached to the case record;
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5. In case where there are many complicated
circumstances, the deliberation requires a long time, the trial Panel may
decide the deliberation time but not later than five working days after the end
of arguments at the trial. The trial Panel shall inform the sentencing date to
the the persons concerned. If the sentencing date has been fixed but changed,
then the trial Board must notify the persons concerned of such change.
Article 36. Sentence of
first instance specified in Article 238 of CCP
The sentence
of first instance must be written in accordance with the provisions in Article 238
of CCP, the way of writing and presentation must be in line with the Form No.01
issued together with Resolution No.
03/2012/NQ-HDTP dated December 03, 2012 of the Council of Judges of the Supreme
People’s Court guiding the implementation of a number of provisions in the
first Part “General provisions’’ of the Code of Civil Procedure amended and
supplemented under the Law amending and supplementing a number of Articles of
the Code of Civil Procedure;
Together with
the deliberation record, the original sentence must be adopted and signed by
the members of the trial Panel at the deliberation room and kept in the case
record. On the basis of original sentence, the presiding Judge of the trial
shall, on behalf of the trial Panel, sign the main sentences and the Court
shall hand over or send the sentences as provided for in Article 241 of the
CCP;
Article 37. Sentence
declaration specified in Article 239 of CCP
When the
sentence is declared, all of the people in the courtroom shall stand up. If any
person does not stand up, the Court Clerk shall remind him/her. If that person
says he/she cannot stand up due to bad health, the Chairman of the trial shall
permit him/her to sit in place and then declare the sentence. The Chairman or
another member of the trial Panel shall read the verdict. If the verdict is
long, the Chairman and that member can take turns reading the verdict;
Where the verdict is too long, the Chairman only
tell the people in the court room to stand up when reading the introduction and
the decision of the verdict;
After finishing the reading of verdict,
depending on each specific case, the
Chairman or another member of the trial Panel shall give further explanation
about the enforcement of sentence and right of appeal of the persons concerned;
For the persons concerned who do not speak
Vietnamese, after the declaration of sentence, the interpreter must translate
the whole verdict for them into the language they know (including the part of
verdict related to them and the part of verdict related to the other persons
concerned in the case);
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1. The verdict is only amended or supplemented
in the following cases:
a) Obvious errors found in spelling such as:
incorrect written words, accent marks, uppercase or lowercase letters, foreign
language transliterated into Vietnamese, omitted middle name in the full name
of the persons concerned,...
b) Data by mistake or miscalculation (including
court fees) as: wrong addition, subtraction, multiplication, division, ... that
have to be corrected.
2. The Court
must send a written notce of the amendment or supplementation of verdict to
ther persons specified in Clause 1, Article 240 of CCP. This notice is
presented under the Form No. 15 issued together withi this Resolution.
Article 39. Forms of
written proceedings
Issued together with this Resolution are the
forms of written proceedings as follows :
1. Petition (Form No. 01) ;
2. Petition receipt notice (Form No.02) ;
3. Petition returning notice (Form No.03) ;
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5. Notice of handling of case (Form
No.05) ;
6. Notice of mediation session (Form
No.06a) ;
- Notice of adjournment of mediation (form No.
06b) ;
7. Record of mediation (Form No.07) ;
8. Record of successful mediation (Form No.
08a) ;
- Record of recognizing the voluntary divorce
and successful mediation (Form No. 08b) ;
9. Decision on recognizing the agreement of the
persons concerned (Form No. 09a) ;
- Decision on recognizing the consensual divorce
and the agreement of the persons concerned (Form No.09) ;
10. Decision on temporarily suspending the
settlement of civil case (Form No.10a) ;
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11. Decision on suspending the settlement of
civil case (Form No.11a) ;
- Decision on suspending the settlement of civil
case (Form No.11b) ;
12. Decision on bringing the case to trial (Form
No.12) ;
13. Record of trial of first instance trial
(Form No.13) ;
14. Decision on adjournment of trial (Form
No.14) ;
15. Notice of amendment or supplementation of
verdict (No. 15) ;
Article 40.
Effect
1. This Resolution was adopted by the Council of
Judges of the Supreme People’s Court on December 03, 2012 and takes effect on
July 01, 2013
Resolution No. 02/2006/NQ-HDTP
dated May 12, 2006 of the Council of Judges of the Supreme People’s
Court guiding the implementation of a number of provisions in the second Part
“Procedures for settlement of the case at the First Instance Court” of the Code
of Civil Procedure and the guidelines for the issues guided in this Resolution
of the Supreme People’s Court issued before the effective date of shall expire
on July 01, 2013 ;
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For the sentence and decision of
the Court that has taken legal effect before the effective date of this
Resolution, the guidelines in this Resolution shall not apply for protest under
the appellate or cassational procedures, except where there are other grounds
for protest.
FOR THE COUNCIL OF JUDGES
TRIBUNAL PRESIDENT
Truong Hoa Binh