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COUNCIL
OF JUDGES
SUPREME PEOPLE'S COURT
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence– Freedom – Happiness
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No:
01/2012/NQ-HĐTP
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Ha
Noi, June 13, 2012
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RESOLUTION
GUIDANCE ON APPLICATION OF A NUMBER OF PROVISIONS OF THE LAW
ON COURT COST AND COURT FEE
COUNCIL OF JUDGES OF SUPREME PEOPLE'S COURT
Pursuant to the Law on
Organization of People's Court
To correctly and uniformly apply
the Ordinance on court cost and court fee (hereinafter referred to as the
Ordinance) and other provisions of law on court fee and court cost;
After obtaining the consent
of the Head of the Supreme People's Procuracy and the Minister of Justice,
DECIDES:
Chapter I
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Article 1.
General principle
1. When handling civil,
criminal, administrative cases, the Court shall base on the provisions of this
Ordinance and Resolution and other provisions of law on court cost and court
fee to determine the advance of court cost and court fee, the court cost and
court fee that the person concerned and the convict must bear.
2. Where the person concerned
and the convict send written request for exemption of the advance of court cost
and court fee, the court cost and court fee, the Court shall base on the
provisions of this Ordinance and Resolution and other provisions of the law on
the court cost and court fee to consider their request.
Article 2.
Obligation to pay court fee prescribed in Article 4 of the Ordinance
1. From the date the Ordinance
takes effect (July 01, 2009) prior to the date the Law amending and
supplementing some articles of the Code of civil procedure is effective
(January 01, 2012) the court fee shall comply with the provisions of Article 4
of the Ordinance.
2. From the date the Law
amending and supplementing some articles of the Code of civil procedure is
effective (January 01, 2012), pursuant to clause 6, Article 26 of the Code of
civil procedure adopted by the National Assembly of the Socialist Republic of
Vietnam term XI, session 5 on June 15, 2004 (hereinafter abbreviated CPC 2004)
and Clause 6, Clause 7, Article 26 of the CPC 2004 amended and supplemented
under the Law amending and supplementing some articles of the Code of civil procedure
adopted by the National Assembly of the Socialist Republic of Vietnam, term
XII, session 9 on March 29, 2011 (hereinafter abbreviated as CPC amended 2011),
apart from the court fee prescribed in Article 4 of the Ordinance, the person
requesting the Court to resolve the following types of case must pay the court
fee:
a) Request to declare the
invalidity of notarized document;
b) Request for determination of
ownership rights, the right to use property, division of common property for
judgment execution as prescribed by law for enforcement of civil judgments.
Article 3.
No requirement to pay the advance of court cost and the court cost prescribed
in Clause 2, Article 10 of the Ordinance
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Article 4.
Exemption from payment of advance of court cost, the court cost, the advavce of
court fee and the court fee specified in clause 5, Article 11 and 13 of the
Ordinance
Regarded as individuals and
households under the poverty line defined in clause 5, Article 11 and Article
13 of the Ordinance, if at the time the Court resolves the civil cases,
criminal cases, administrative cases, they are under the poverty line according
to the regulations of the Government.
Example: At the time the person
submitting written request for the settlement of the civil cases, they are
under the poverty line as stipulated in Decision No. 09/2011/QD-TTG dated
January 30, 2011 of the Prime Minister on the issuance of standards of poor
households, nearly-poor households to apply for the peirod 2011-2015.
Article 5.
Exemption from payment of a part of advance of court cost, the court cost, the
advance of court fee and the court fee.
1. The person in economic
difficulty specified in Clause 1 and Clause 2, Article 14 of the Ordinance must
be a Vietnamese national or the person without nationality but is living and
working in Vietnam at the time the court resolves the civil cases, criminal
cases, administrative cases and must be certified by the People's Committees of
communes, wards or towns where that person is residing or by the agency or
organization where that person is working confirmed that he/she is in economic
difficulty.
2. Where the Court has permitted
the person in economic difficulty to be exempted from one part of the advance
of court cost and advance of court fee as prescribed in Article 14 of the
Ordinance and the guidance in clause 1 of this article, but they still have to
bear all court cost and court fee in one of the following cases:
a) The Court has permitted the
exemption from payment of one part of advance of court cost and advance of
court fee, but then proved that the person exempted from payment is not the
person in economic difficulty;
b) According to the judgment and
decision of the Court decision, that person has property to pay all court cost
and court fee that they incur (he is shared common property and entitled to
inheritance, ...).
3. When considering and deciding
the rate of advance of court cost and advance of court fee, the court cost and
court fee, the Court shall base on financial ability of the person requesting
for exemption from advance of court cost and advance of court fee, the court
cost and court fee and property value in dispute in order to make decision on the
level of exemption but must not exceed 50% of the advance of court cost and
advance of court fee, the court cost and court fee of which under the
provisions of the Ordinance that person must be make payment
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a) The person subject to the
case of partial exemption from advance of court cost, advance of court fee, the
court cost and court fee shall be exempted; the person not subject to the case
of partial exemption from advance of court cost, advance of court fee, the
court cost and court fee shall not be exempted.
b) Where the parties have agreed
on the payment of court cost and court fee for the purpose of evading the
implementation of obligation to the State, if there is a person agreeing to pay
court cost and court fee on behalf and submitting application for partial
exemption of court cost and court fee but according to regulation this person
must pay if he meets the conditions presribed in Article 14 of the Ordinance
while the court cost and court fee that he has agreed to pay on behalf of
another person shall not be exempted.
Article 6.
Handling advance of court cost, advance of court fee, the court cost and court
fee prescribed in Article 18 of the Ordinance.
1. From the date the Ordinance
takes effect (on July 01, 2009) prior to the date the Law on Administrative
Procedures takes effect (on July 01, 2011), the provisions of Article 18 of the
Ordinance shall apply to handle the advance of court cost, advance of court
fee, the court cost and court fee.
2. From the date the Law on
Administrative Procedures takes effect (on July 01, 2011), the handling of the
advance of court cost, advance of court fee, the court cost and court fee in
some cases as follows :
a) Where an administrative case
is suspended under the provisions at Points a, b and c, Clause 1 of Article 120
of the Law on Administrative Procedures, the advance of court cost already paid
shall be placed in state coffers;
b) Where the settlement of
administrative case is suspended under the provisions of point d, Clause 1,
Article 120 of the Law on Administrative Procedures, the advance of court cost
shall be returned to the payer.
3. From the date the Ordinance
takes effect (July 01, 2009) prior to the date the Law amending and
supplementing some articles of the CPC 2004 takes effect (on January 01, 2012)
the provisions in the Article 18 of the Ordinance to handle the advance of
court cost, advance of court fee, the court cost and court fee shall be
applied.
4. The Law amending and
supplementing some articles of the CPC 2004 takes effect (on January 01, 2012),
the advance of court cost, advance of court fee, the court cost and court fee
shall be handled as follows:
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b) Where the settlement of civil
cases is suspended under the provisions at Point c, g, h and i, Clause 1 of
Article 192 of the CPC 2011 amended, the advance of court cost shall be
returned to the payer.
Article 7.
Method of calculation of advance of court cost of civil first instance
In order to have the foundation
for calculation of advance of court cost of the civil first instance, depending
on each case, the Court should base on the following elements:
1. The property price in
accordance with regulations of the provincial People's Committee.
2. Quotation of the price
assessment Organizations
3. The property price on the
local market.
4. Where it is impossible to
base the guidance in clause 1, 2 and 3 of this Article to determine the value
of disputed property, the Court shall send a written request to the financial
agencies and other professional agencies for their opnions on the determination
of property price.
Chapter II
COURT COST IN CRIMINAL
CASE
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1. The litigants in criminal
cases specified in Article 21 of the Ordinance including the victim, civil
plaintiff, civil defendant, and person concerned in the criminal cases.
2. The obligation to pay a court
cost of litigants in criminal cases as provided in clause 1 of this Article
shall comply with the provisions of Clause 2, Article 21 of the Ordinance.
3. In any case, the defendant
loging a civil appeal in the criminal case does not have to pay the advance of
court cost for civil appeal.
Article 9.
Obligation to bear the court cost of the civil first instance in criminal cases
specified in Clause 3, Article 22 of the Ordinance
1. In criminal cases, the
persons not subject to the case being exempted from a whole or a part of court
cost, in general principle, he must bear the court cost of civil first instance
under Article 27 of the Ordinance.
2. In application of the
provisions of Article 27 of the Ordinance in criminal cases, it is necessary to
distinguish:
a) Where the victim has declared
his property have been infringed and required the defendant to make
compensation for property but in fact the property infringed by the defendant
has been proved to be of lower value than that declared, the court cost of
civil first instance shall be calculated for the part of property proved.
Example 1: The victims has
reported his property was infringed and required the defendant to make
compensation of 03 qians of gold for the property infringement but the
authorities prove the defendant has just appropriated the plaintiff’s 02 qians
of gold. The Court shall compelled the defendant to compensate 02 qians of gold
for the damage of property to the victim, the defendant must bear the court
cost of civil first instance that is 02 qians of gold for the property, the
victim shall not bear the court cost of civil first instance for the portion of
property that is 01 qian of gold not accepted.
Example 1: The victims has reported
his property was infringed and required the defendant to make compensation of
03 qians of gold valued at VND 12,000,000 for the property infringement but the
authorities prove the defendant has just appropriated the plaintiff’s 02 qians
of gold valued at VND 8,000,000 at the time of of first-instance trial, the
defendant must bear the court cost of civil first instance for 02 qians of gold
valued at VND 8,000,000, the victim shall not bear the court cost of civil
first instance for the portion of VND 4,000,000 not accepted.
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Example 1: The victims has
reported his property was infringed and required the defendant to make compensation
of 03 qians of gold valued at VND 8,000,000 for the property infringement but
the authorities prove the defendant has just appropriated the plaintiff’s 03
qians of gold valued at VND 12,000,000 at the time of of first-instance trial,
the defendant must bear the court cost of civil first instance for 03 qians of
gold valued at VND 12,000,000.
c) The victim requiring a
compensation for the property damage as prescribed by law does not require a
sum of money or property that may be determined by a specific amount, he shall
not be liable for court costs if his request is not accepted by the court.
d) The victim requiring a
compensation for the items inconsistent with the law, the court must explain to
them that he must bear the court cost if the request for the compensation is
not accepted by the Court. If he still requests the Court’s settlement, he must
bear the court cost if his request is not accepted by the Court.
Example: Where the victim
requires a compensation for the attorney's fees unreasonably, the court must
explain to them that they must pay the court cost his request is not accepted
by the Court. If he still requests the Court’s settlement, he must bear the
court cost for the attorney's fees if his request is not accepted by the Court.
3. Before the trial, if the
litigants and defendants agree with each other on the compensation for damages
even where they agree upon by themselves and request the court to note the
compensation for the damage, they are not subject to court cost of the civil
first instance. At the trial, if the litigants and defendants agree with each
other on the compensation, they are subject to court cost of the civil first
instance as in the case of judgement of that case;
Article 10.
Obligation to bear the appellate court cost in the criminal cases specified in
clause 1, 2 and 7, Article 23 of the Ordinance
1. In cases where both the
defendant and legal representative of the defendant appeal against the criminal
decision of the first instance judgement that the appellate court retains the
criminal decision of the first instance judgement, only the defendant is
subject to the criminal appellate court cost.
2. In cases where only the
defendant or the legal representative of the defendant appeals against the
criminal decision of the first instance judgement that the appellate court
retains the criminal decision of the first instance judgement, only the
protester is subject to the criminal appellate court cost.
3. In cases where the defendant
appeals against the criminal decision and the legal representative of the
defendant appeals against the civil decision or vice versa but the appellate
court retains the decision of the first instance judgement, the protester to
some extent must bear the court cost for his request.
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5. In cases where there is only
one protester and his request for appeal is accepted by the Court, the
protester is not subject to the appellate court cost.
Chapter
III
COURT COST IN CRIMINAL
CASE
Article 11.
Obligation to pay the advance of court cost of civil first instance prescribed
in Article 25 of the Ordinance.
1. Where a civil case with scale
price but the value of disputed property that the Court estimates VND 4,000,000
or less, the court cost of the civil first instance is VND 200,000 (Point a,
Section 2, Part I of the list of court cost and court fee rate issued by the
court enclosed with the Ordinance). In this case, the advance of court cost of
the civil first instance shall be equal to 50% of the court cost rate of the
civil first instance that is VND 100,000.
2. Determining the advance of
court cost of the civil first instance in the case of marriage and family as
follows:
a) In case the wife or husband
has request, the requester must pay the advance of court cost of the civil
first instance that is VND 200,000.
b) Where both husband and wife
request, each person must pay the advance of court cost of the civil first
instance that is VND 100,000.
3. Where in addition to the
divorce request, the litigants also request the division of common property of
spouses in accordance with the law or request a division of half the value of
the common property of spouses, the requester must pay the advance of court
cost for half the value of the common property of spouses.
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Article 12.
Obligations to bear the court cost of the civil first instance in case of
settlement of division of common property, inheritance prescribed in clause 7,
Article 27 of the Ordinance.
When the litigants cannot
determine their property portion or each person determines their property
portion in the common property, their inheritance in the common property is different
and under dispute, each litigant must bear the court cost of the civil first
instance at the rate corresponding to the value of the property portion that
they are divided and enjoyed in the common property or the inheritance. For the
Court rejects the requesting application, the requester for dividing common
property and inheritance shall not be subject to the court cost of the civil
first instance.
Example: A, B, C, D dispute over
a common property worth VND 600,000,000 and cannot determine the portion of
their property or each person determines his property in the common property
differently and dispute arises. The court decides that A is divided by
VND100,000,000, B is divided by VND 150,000,000, C is divided by VND
200,000,000 and D is divided by VND 150,000,000 shall be divided. The court
cost of the civil first instance per person payable shall be calculated as
follows:
A must pay the court cost of VND
100,000,000 x 5% = VND 5.000.000
B must pay the court cost of VND
150,000,000 x 5% = VND 7.500.000
C must pay the court cost of VND
200,000,000 x 5% = VND 10.000.000
D must pay the court cost of VND
150,000,000 x 5% = VND 7.500.000
Article 13.
Obligation to bear the court cost of civil first instance in the case of
marriage and family with dispute over the division of common property of
spouses
1. The litigants in the case of
marriage and family with disputes over the division of common property of
spouses, in addition to bearing court cost of civil first instance prescribed
at Point a, Clause 1, Article 24 of the Ordinance, they are also liable to the
court cost for the property in dispute as to the civil case with scale price
corresponding to the value of the property portion they are divided.
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3. In case the spouses have
obligations on the property over the other person and this person has an
independent request to the spouses to perdorm their obligations on the property
and the Court accepts that independent request, the obligation to bear the
court cost of the civil first instance as follows:
a) The person having an
independent request shall not bear the court cost of civil first instance for
the property portion they enjoy.
b) The spuses must bear the
court cost of civil first instance for the value of property portion of which
they have the obligation over the person having an independent request
c) The spouses have to bear the
court cost of civil first instance for the property portion they are divided
after subtracting the value of the property portion of which they have the
obligation over the person having an independent request.
Article 14.
Obligations to bear the court cost of civil first instance of the person with
support obligation
The obligation to bear the court
cost of civil first instance of the person with support obligation in the case
of divorce, the case of damage compensation requirement, the criminal case with
the settlement of issue of support obligation, the case on the support is as
follows:
1. Where the parties reach
agreement themselves on the rate of support and method of support prior to the
trial but request the Court to note in the judgment or decision, the person
with support obligation shall pay 50% of the court cost of civil first instance
as for the civil case without scale price; in case at the court cost of civil
first instance trial the parties reach agreement, the person with the support
obligation must bear the first instance civil court fees as for the civil case
without scale price.
2. Where the parties reach
agreement on the method of support ( including one time) but cannot agree upon
the rate of support, the person with support obligation must bear the the first
instance civil court fees as for the civil case without scale price.
3. Where the parties reach
agreement on the method of support but agree upon the rate of support, the
person with support obligation must bear the court cost of the civil first
instance as for the civil case without scale price.
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Article 15.
Obligation to pay the advance of court cost, obligation to bear the court cost
in the case of marriage and family.
1. As stipulated in Clause 3,
Article 11 of the Ordinance, in the case of marriage and family, if support is
required in all cases where the person requiring support does not have to pay
the advance of court cost nor the court cost for support request.
2. The case for divorce
requirement and dispute over the division of property but the parties are not
subject to the case without payment of the advance of court cost and the court
cost as prescribed in Article 10 of the Ordinance; being exempted from all
advance of court cost and the court cost as prescribed in Article 11 of the
Ordinance and guidance in Article 4 of this Resolution, they must pay the
advance of court cost as prescribed in Article 25 of the Ordinance and the
guidance in Article 11 of this Resolution; they must bear the court cost as
prescribed in Clause 8, Clause 9, Article 27 of the Ordinance and the guidance
in Article 13 of this Resolution.
Article 16.
Obligation to bear the court cost of the civil first instance prescribed in
clause 11, Article 27 of the Ordinance
1. In case the litigants reach
agreement to divide the spouses’ common property and request the Court to note
in the judgement and decision before the Court conduct the conciliation, the
litigants shall not be subject to the court cost of the civil first instance.
2. In a divorce case where the
parties agree to the divorce as stipulated in Article 90 of the Law on Marriage
and Family 2000, it is considered that the parties reach agreement themselves
on the settlement in case the Court conducts the conciliation before opening
the hearing as prescribed in Clause 11, Article 27 of the Ordinance and the
parties must bear 50% of the prescribed court cost (each party shall bear 25%
of the prescribed court cost).
3. Where the Court has conducted
the conciliation, at the conciliation session the litigants can not agree the
division of common property of spouses but before opening the hearing the
parties agree upon the division of common property of spouses and request the
Court to note in the judgment or decision, the case shall be considered as the
parties reach agreement among themselves on the settlement of the case in case
the Court conducts the conciliation prior to the trial and they shall be
subject to 50% of the court cost of the civil first instance corresponding to
the value of the property they are divided.
4. Where at the hearing, the
litigants reach agreement on the settlement of the case, they are still subject
to 100% of the court cost of the civil first instance corresponding to the
value of the property they are divided.
5. Where the litigants are in
dispute on the division of common property and obligation of the common
property of spouses, the court shall conduct the conciliation and the litigants
agree to reach an agreement on the division of some common property and some
common property and obligations of the common property cannot be reached an
agreement, the litigants shall have to bear the court cost for the division of
the whole of common property and obligations of common property of spouses.
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1. For disputes over property
recovery from lending and temporary staying, the litigants must pay the court
cost of the civil first instance for the civil case without scale price. In
case of disputes outside the property recovery from lending and temporary
staying, the litigants are also in disputes over the compensation for damage
and request the Court to settle, the litigants must pay the court cost without
scale price for dispute over property recovery from lending and temporary
staying and the court cost with scale price for the request for damage
compensation.
2. For the dispute over the
property ownership, it is necessary to distinguish as follows:
a) In case of dispute over the
property ownership but the Court doesnot consider the value but the property
ownership, the litigants must bear the court cost of the civil first instance
as for the case without scale price;
b) In case of dispute over the
property ownership but the Court has to determine the value of the property or
the ownership by portion, the litigants must bear the court cost of the civil
first instance as for the case with the scale price for the value enjoyed.
3. For the dispute over the
contract for invalid sale and purchase of property and transfer of land use
right, it is necessary to distinguish as follows:
a) In case one party requests
the recognition of the contract for sale of property and transfer of land use
right and one party requests the declaration of the invalidity of the contract
for sale and purchase of property and transfer of land use right and requests
nothing else. If the Court declares the Contract in invalid, the party
requesting the recognition of the contract must bear the court cost as for the
case without the scale price. If the Court declares to recognize the contract,
the party requesting the declaration of invalidity of the contract must bear
the court cost as for the civil case without the scale price.
b) In case one party requests
the recognition of the contract for sale of property and transfer of land use
right and one party requests the declaration of the invalidity of the contract for
sale and purchase of property and transfer of land use right and requests the
Court to settle the consequence of the invalid contract, in addition to bearing
the court cost without the scale price as guided at point a, clause 3 of this
Article, the person performing obligation on the property or damage
compensation must bear the court cost as for the civil case with the scale
price for the value of property to be performed.
4. In case of dispute over the
contract for sale of property and transfer of land use right, one party
requests the reimbursement of the deposit and deposit penalty, one party
accepts to return the deposit received and does not accept the deposit penalty,
but the Court accepts the deposit penalty, the party that does not accept the deposit
penalty must bear the court cost as for the civil case with the scale price for
the deposit penalty. In case the Court does not accept the deposit penalty, the
party requesting the deposit penalty must bear the court cost as for the civil
case with the scale price for the deposit penalty.
Chapter IV
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Article 18.
Time limit for payment of advance of administrative court cost of the first
instance.
1. From the date the Ordinance
takes effect (on July 01, 2009) prior to the date the Law on Administrative
Procedures takes effect (on July 01, 2011), as prescribed in Article 33 of the
Ordinance, the petitioner must pay the advance of administrative court cost of
the first instance within 07 days from the date of receiving notice of the
Court on the payment of the advance of court cost.
2. From the date the Law on
Administrative Procedures takes effect (on July 01, 2011), as prescribed in
Article 111 of the Law on Administrative Procedures, the petitioner must pay
the advance of administrative court cost of the first instance within 10 days
from the date of receiving notice of the Court on the payment of the advance of
court cost.
Article 19.
Obligation to bear the court cost of first instance in administrative case.
1. In case the judgment and
decision of the Court declared to accept a part of request of lawsuit
initiating of the petitioner, one or a number of administrative decisions,
administrative act in conformity with the law, one or a number of
administrative decisions, administrative act in contrast with, the defendant
must bear the administrative court cost of the first instance
Example: Mr. A initiates a suit
to request the cancellation of 02 administrative decisions of the People’s
Committee of province C, the Court settles and argues that 01 administrative
decisions is lawful and 01 administrative decision is unlawful and decides to
accept a part of request of lawsuit initiating of Mr. A. In this case, the
People’s Committee of province C must bear the administrative court cost of the
first instance.
2. In administrative case, the
person not subject to the case of exemption from the whole or a part of the
advance of the court cost and the court cost, in general principle, they must
bear the court cost of the civil first instance as prescribed in the Article 27
of the Ordinance.
3. Upon application of the
provisions in the Article 27 of the Ordinance in administrative case, it is
necessary to distinguish:
a) The petitioners requesting a
damage compensation for the life, health, honor and dignity shall be entitled
to exemption of the whole of advance of the court cost and the court cost.
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c) The petitioners requesting a
damage compensation for inappropriate items, the Court has to explain to them
about the reason why they must bear the court cost if their requests for damage
compensation are not accepted by the Court. If they still request the Court’s
settlement, they must bear the court cost if their requests are not accepted by
the Court.
d) In case the litigants open
dialogue and reach an agreement on the settlement of the case prior to the
hearing, the litigants shall bear 50% of the rate of prescribed court cost.
Chapter V
IMPLEMENTATION PROVISION
Article 20.
Effect of implement prescribed in the Article 51 of the Ordinance
1. From July 01, 2009, upon
handling the civil cases, criminal cases and administrative cases, the issues
about the advance of court cost, advance of court fee, the court cost and the
cost fee must be considered and decided in accordance with regulations of the
Ordinance.
2. For the court cases handled
by the Court for settlement according to the procedure of first instance or
appellate procedure before the date the Ordinance takes effect (on July 01,
2009), but after July 01, 2009, the Court shall resolve the case under the
first instance procedures and appeal procedures, the decision on court cost and
court fee shall comply with the provisions of Decree No. 70/CP dated June
16,1997 of the Government " regarding court cost and court fee" and
previous documents about court cost and court fee; the case under the
provisions of Decree No. 70/CP dated June 16,1997 of the Government "
regarding court cost and court fee” that the litigants and defendant must bear
court cost and court fee, but under the provisions of the Ordinance, the
litigants and defendant shall not be subject to or exempted from or reduced
from the court cost and court fee, the provisions of the ordinance shall apply
to them.
Article 21.
Effect
1. This Resolution is adopted by
the Council of Judges of Supreme People's Court on March 29, 2012 and shall take
effect after 45 days from its signing date.
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3. From the date this Resolution
takes effect, for the judgment and decision of the Court that have taken legal
effect before the date this Resolution takes effect, the guidance in this
Resolution shall not be applied for protest according to the procedure of
cassation or retrial, unless there are other grounds for protest.
4. Any problem arising in the
course of implementation should be promptly reported to the Supreme People’s
Court for prompt explanation or guidance on supplementation.
ON
BEHALF OF THE COUNCIL OF JUDGES
TRIBUNAL PRESIDENT
Truong Hoa Binh