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THE
MINISTRIES THE SUPREME PEOPLE'S COURT – THE MINISTRY OF LABOR. WAR INVALIDS
AND SOCIAL AFFAIRS - THE SUPREME PEOPLE'S PROCURACY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
01/2010/TTLT-TANDTC-BLDTBXH-VKSNDTC
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Hanoi,
May 18, 2010
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JOINT CIRCULAR
GUIDING
THE APPLICATION OF LEGAL PROVISIONS TO SETTLING AT PEOPLE'S COURTS DISPUTES
OVER GUARANTEE CONTRACTS FOR GUEST WORKERS
THE MINISTRIES THE SUPREME PEOPLE'S COURT – THE MINISTRY
OF LABOR. WAR INVALIDS AND SOCIAL AFFAIRS - THE SUPREME PEOPLE'S PROCURACY
Pursuant to the November 29,
2006 Law on Vietnamese Guest Workers;
Pursuant to the June 15, 2004 Civil Procedure Code;
Pursuant to the June 14, 2005 Civil Code;
In order to properly and uniformly apply legal provisions to settling at
people's courts disputes over guarantee contracts for guest workers, the
Supreme People's Court, the Ministry of Labor, War Invalids and Social Affairs
and the Supreme People's Procuracy jointly provide the following guidance:
Chapter I
GENERAL PROVISIONS
Article 1. Scope of
regulation
This Joint Circular guides the
application of legal provisions to settling disputes over guarantee contracts
for guest workers (below referred to as guarantee contracts) between
enterprises or non-business organizations sending guest workers and guarantors
of these workers.
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Disputes over guarantee
contracts specified in the Law on Vietnamese Guest Workers and Joint Circular
No. 08/2007/TTLT-BLDTBXH-BTP of July 11. 2007, of the Ministry of Labor, War
Invalids and Social Affairs and the Ministry of Justice, detailing the terms of
a guarantee contract and liquidation of guarantee contracts for guest workers,
are civil ones to be settled by people's courts under Clause 3, Article 25 of
the Civil Procedure Code.
Article 3. Application of
laws
1. Disputes over guarantee
contracts made before January 1, 2006 (the effective date of the 2005 Civil
Code), shall be settled under the National Assembly's Resolution No. 45/2005/
QH11 of June 14, 2005, on the enforcement of the 2005 Civil Code.
2. Disputes over guarantee
contracts made between January 1,2006, and before July 1,2007 (the effective
date of the Law on Vietnamese Guest Workers) shall be settled under the 2005
Civil Code and guiding legal documents; the Government's Decree No.
141/2005/ND-CP of November 11, 2005, on management of Vietnamese guest workers;
Joint Circular No. 06/ 2006ATTLT-BLDTBXH-BTPof July 7. 2006, of the Ministry of
Labor, War Invalids and Social Affairs and the Ministry of Justice, guiding
guarantee for guest workers; and relevant legal documents.
3. Disputes over guarantee
contracts made on or after July 1. 2007, shall be settled under the Law on
Vietnamese Guest Workers; Joint Circular No. 08/2007/TTLT-BLDTBXII-BTPof July
1. 2007. of the Ministry of Labor. War Invalids and Social Affairs and the
Ministry of Justice, detailing the terms of a guarantee contract and
liquidation of guarantee contracts for guest workers; this Joint Circular; and
relevant legal documents.
Article 4. Coordination in
settling cases of disputes over guarantee contracts
The settlement of disputes over
guarantee contracts requires coordination between people's courts, people's
procuracies, the Department for Management of Overseas Laborers,
provincial-level Departments of Labor, War Invalids and Social Affairs (or the
Ministry of Labor. War Invalids and Social Affairs) of the localities where the
cases are processed, and concerned agencies and organizations in performing the
following tasks:
1. When people's courts request
in writing the exchange of opinions on professional matters in sending guest
workers, the Department for Management of Overseas Laborers (the Ministry of
Labor. War Invalids and Social Affairs) and provincial-level Departments of
Labor, War Invalids and Social Affairs shall give written replies on such
matters.
2. Upon a written request of
courts or procuracies competent to settle the cases, the Department for
Management of Overseas Laborers (the Ministry of Labor. War Invalids and Social
Affairs) shall provide documents related to the guarantee for Vietnamese guest
workers it currently keeps under law.
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4. The courts that have settled
the cases shall send judgments or rulings to concerned agencies, organizations
and individuals upon request under law.
Chapter 11
PROCLDURES FOR SETTLING AT PEOPLE'S COURTS DISPUTES
OVER GUARANTEE CONTRACTS
Article 5. The right to
initiate at people's courts civil cases of disputes over guarantee contracts
Enterprises or non-business
units sending guest workers and guarantors of these workers defined in Clauses
1 and 3, Article 2 of the Law on Vietnamese Guest Workers and persons with
related interests and obligations may initiate civil cases of guarantee
contracts at competent people's courts to protect their lawful rights and
interests.
Article 6. Documents and
proofs enclosed with petitions
Documents and proofs enclosed
with petitionscomply with Article 165 of the Civil Procedure Code and
Resolution No. 02/2006/ NQ-HDTP of May 12, 2006. of the Judges' Council of the
Supreme People's Court, guiding the Civil Procedure Code's provisions of Part
Two "Procedures for settling cases at first-instance courts".
When, for an objective reason,
petitioners cannot immediately provide sufficient documents and proofs, they
shall provide initial documents and proofs for evidencing that their petitions
are grounded and lawful.
Initial documents and proofs to
be provided by petitioners to courts may be originals or lawfully notarized or
certified copies of guarantee contracts and contract annexes (if an)). In the
course of settling the cases, petitioners shall supplement at their own will or
at the request of courts other documents and proofs for evidencing that their
petitions arc grounded and lawful.
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1. The statute of limitations
for initiating lawsuits to request courts to settle disputes over guarantee
contracts is two years from the date lawful rights and interests of enterprises
or non business units sending guest workers and guarantors of these workers or
persons with related interests and obligations are infringed upon.
The determination of the statute
of limitations for initiating lawsuits and the starting time of such statute of
limitations complies with Section 2. Part IV of Resolution No. 01/2005/NQ-HDTP
of March 31. 2005. of the Judges' Council of the Supreme People's Court,
guiding a number of provisions of Part One "General provisions" of
the Civil Procedure Code.
2. For disputes over guarantee
contracts in which the parties cannot agree with one another on the time limit
for performing the guarantee obligation, but under Article 56 of the Law on
Vietnamese Guest Workers, enterprises or non business units sending guest workers
may set an appropriate time limit for performing the guarantee obligation, upon
the expiration of such time limit, if guarantors of these guest workers fail to
perform or improperly perform their obligation, the date of expiration of the
notified time limit is the date when lawful rights and obligations of
enterprises or non-business units sending guest workers are infringed upon.
For example: Enterprise A signed
with guarantor B a guarantee contract on sending guest workers. After the
guarantee obligation arises the two parties could not reach agreement on the
time limit for performing this obligation. On September 22. 2009. guarantor B
received enterprise As request for performing the guarantee obligation within
30 days. At the end of October 22. 2009. guarantor B still failed to perform
the guarantee obligation as requested by enterprise A. In this case, October
22. 2009, would be regarded as the date when enterprise As lawful rights and
interests were infringed upon and the statute of limitations for initiating
lawsuits would be 2 years starting from October 23.2009. through October
23,2011.
Article 8. Jurisdiction of
people's courts to settle disputes over guarantee contracts
1. District-level people's
courts have jurisdiction to process and settle disputes over guarantee
contracts under Point a. Clause 1, Article 33 of the Civil Procedure Code.
2. In the following cases,
provincial-level people's courts have jurisdiction to settle disputes over
guarantee contracts under Clause 3. Article 33 and Clause 2. Article 34. of the
Civil Procedure Code, and Section 4. Part I of Resolution No. 01/ 2005/NQ-HDTP
of March 31.2005. of the Judges' Council of the Supreme Peoples Court, guiding
a number of provisions of Part One "General provisions" of the Civil
Procedure Code:
a/ Disputes over guarantee
contracts among guest workers, their guarantors and overseas persons with
related interests and obligations as specified in Item 4.1. Section 4. Part 1
of Resolution No. 01/2005/NQ-HDTP of March 31. 2005. of the Judges' Council of
the Supreme People's Court, guiding a number of provisions of Part One
"General provisions" of the Civil Procedure Code.
b/ Disputes over guarantee
contracts involving overseas assets or requiring judicial mandate to overseas
Vietnamese consular offices or foreign courts specified in Items 4.2 and 4.3.
Section 4. Part I of Resolution No. 01/2005/NQ-HDTP of March 31. 2005. of the
Judges" Council of the Supreme Peopled Court, guiding a number of
provisions of Part One "General provisions" of the Civil Procedure
Code.
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3. If no change is made in
people's courts' jurisdiction to settle disputes over guarantee contracts, such
disputes shall be settled under Article 412 of the Civil Procedure Code and
Item 4.4. Section 4. Part I of Resolution No. 01/2005/ NQ-HDTP of March 31. 2005.
of the Judges' Council of the Supreme People's Court, guiding a number of
provisions of Part One "General provisions" of the Civil Procedure
Code.
Article 9. Collection of
proofs
1. The collection of proofs in
the course of settling cases complies with the Civil Procedure Code and
Resolution No. 04/2005/NQ-HDTP of September 17. 2005. of the Judges' Council of
the Supreme People's Court, guiding the Civil Procedure Code's provisions on
evidencing and proofs.
2. Depending on the
circumstances of cases of disputes over guarantee contracts, courts may request
involved parties, individuals, agencies or organizations to provide the
following papers and documents:
a/ Originals or lawfully
notarized or certified copies of papers and documents related to guarantee
contracts, including:
- Guarantee contract: contract
annex (if any): document on contract liquidation (if any): document on
guarantee cancellation (if any); and written agreement on guarantee termination
(if any);
- Contract on sending guest
workers; contract annex (if any); and document on contract liquidation (if
any).
b/ Originals or lawfully
notarized or certified copies of papers and documents related to security for
the performance of the guarantee obligation, including:
- Asset mortgage or pledge or
deposit contract;
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c/ Originals or lawfully
notarized or certified copies of papers and documents related to the
performance of guarantee contracts, including:
- Notice of vvorkplace,
employment situation, income, health status, working and living conditions of
workers, when so requested by the guarantor of guest workers:
- Notice of workers' breaching
the contract or absconding from their workplace; and employer's document of
termination of the labor contract;
- Document on the handling of
workers' violations, issued by a competent foreign agency or organization or a
competent overseas Vietnamese agency under the Law on Vietnamese Guest Workers
(if any);
- Proofs of the damage caused by
workers;
- Notice of the performance of
obligations on behalf of workers, sent to guarantors of guest workers.
d/ Other papers and documents
related to the settlement of cases.
Chapter III
EFFECT
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This Joint Circular takes effect
45 days from the date of its signing.
This Joint Circular does not
apply to cases which were previously settled in accordance with law while court
judgments or rulings have taken legal effect for filing protests according to
cassation or re-opening procedures, unless other grounds are provided. Courts
shall settle under this Joint Circular those cases which are being processed.
Article 11. Implementation
responsibility
People's courts at all levels,
provincial-level Departments of Labor. War Invalids and Social Affairs, and
people's procuracies at all levels should report in writing problems arising in
the course of implementing this Joint Circular to the Supreme People's Court,
the Ministry of Labor, War Invalids and Social Affairs and the Supreme People's
Procuracy for information or timely amendment or supplementation.-
FOR
THE PROSECUTOR GENERAL OF THE SUPREME PEOPLE'S PROCURACY
DEPUTY PROSECUTOR GENERAL
Nguyen Thi Thuy Khiem
FOR
THE MINISTER OF LABOR, WAR INVALIDS AND SOCIAL AFFAIRS
DEPUTY MINISTER
Nguyen Thanh Hoa
FOR
THE PRESIDENT OF THE SUPREME PEOPLE'S COURT
VICE PRESIDENT
Tran Van Tu