Chương IV Bộ luật Tố tụng dân sự 2004: Cơ quan tiến hành tố tụng, người tiến hành tố tụng và việc thay đổi người tiến hành tố tụng

Chapter IV

CIVIL PROCEDURE-CONDUCTING AGENCIES, CIVIL PROCEDURE -CONDUCTING PERSONS AND REPLACEMENT OF CIVIL PROCEDURE -CONDUCTING PERSONS

Article 39.- Civil procedure-conducting agencies, civil procedure-conducting persons

1. The civil procedure-conducting agencies include:

a) The people's courts;

b) The people's procuracies.

2. The civil procedure-conducting persons include:

a) The chief judges, judges, people's jurors and court clerks;

b) Chairmen of procuracies, procurators.

Article 40.- Tasks and powers of the courts' chief judges

1. The court's chief judge shall have the following tasks and powers:

a) To organize the resolution of civil cases and matters falling under the court's jurisdiction;

b) To decide on the assignment of judges to resolve civil cases or matters, people's jurors to participate in trial panels to hear civil cases; and to decide on the assignment of court clerks to conduct procedures for civil cases and/or matters;

c) To decide on the replacement of judges, people's jurors, and/or court clerks before the opening of court sessions;

d) To decide on the replacement of expert-witnesses and/or interpreters before the opening of court sessions;

e) To issue decisions and conduct civil proceedings under the provisions of this Code;

f) To settle complaints and/or denunciations under the provisions of this Code;

g) To protest according to the cessation or reopening procedures against legally-effective court judgments or decisions according to the provisions of this Code.

2. When the chief judge is absent, a deputy-chief judge shall be authorized by the chief judge to perform the chief judge's tasks and powers prescribed in Clause 1 of this Article. The deputy-chief judge shall be answerable to the chief judge for the assigned tasks.

Article 41.- Tasks and powers of judges

1. To compile case files.

2. To decide to apply, change or cancel the provisional emergency measures.

3. To decide to stop or suspend the resolution of civil cases or matters.

4. To conduct conciliation for the involved parties to reach mutual agreement on the resolution of the cases under the provisions of this Code; to issue decisions recognizing the agreement of the involved parties.

5. To decide to bring civil cases to court for trial, or bring civil matters for resolution.

6. To decide to summon the participants in court sessions.

7. To participate in adjudicating civil cases and resolving civil matters.

8. To conduct other proceedings when resolving civil cases and/or matters according to the provisions of this Code.

Article 42.- Tasks and powers of people's jurors

1. To study case files prior to the opening of court sessions.

2. To request the chief judges, judges to issue necessary decisions according to their respective competence.

3. To participate in adjudicating civil cases.

4. To conduct proceedings and vote on issues falling within the trial panels' jurisdiction when adjudicating civil cases.

Article 43.- Tasks and powers of court clerks

1. To make necessary professional preparations prior to the opening of court sessions.

2. To announce the rules of court sessions.

3. To report to the trial panels on the list of those summoned to court sessions.

4. To write minutes of court sessions.

5. To conduct other proceedings according to the provisions of this Code.

Article 44.- Tasks and powers of procuracy chairmen

1. When performing the tasks of supervising the law observance in the civil proceedings, the procuracy chairmen shall have the following tasks and powers:

a) To organize and direct the work of supervising law observance in civil proceedings;

b) To decide on assignment of procurators to supervise law observance in proceedings, to participate in court sessions for adjudication of civil cases, sessions for resolution of civil matters according to the provisions of this Code.

c) To inspect activities of supervising the law observance in proceedings performed by procurators;

d) To decide on replacement of procurators;

e) To protest according to appellate, cassation or reopening procedures against courts judgments or decisions according to the provisions of this Code;

f) To settle complaints, denunciations according to the provisions of this Code.

2. When the procuracy chairman is absent, a deputy-procuracy chairman shall be authorized by the chairman to perform his/her tasks and powers prescribed in Clause 1 of this Article. The deputy chairman is answerable to the chairman for the assigned tasks.

Article 45.- Tasks and powers of procurators

When assigned to supervise the law observance in civil proceedings, the procurators shall have the following tasks and powers:

1. To supervise the law observance in the settlement of civil cases, civil matters by courts;

2. To supervise the law observance by participants in the procedures;

3. To supervise court judgments, decisions;

4. To participate in court sessions for adjudication of civil cases, sessions for resolution of matters according to the provisions of this Code and state the procuracies' opinions on settlement of civil cases and/or matters;

5. To perform other tasks and powers falling within the procuracies' jurisdiction according to the procuracy chairmen's assignment.

Article 46.- Cases where civil procedure-conducting persons must refuse to conduct the procedures or be replaced

Civil procedure-conducting persons must refuse to conduct the procedures or be replaced in the following cases:

1. They are concurrently the involved parties, the representatives or relatives of the involved parties;

2. They have participated in the capacity as defense counsels of the legitimate rights and interests of involved parties, witnesses, expert-witnesses or interpreters in the same cases;

3. There are clear grounds to believe that they may not be impartial in performing their tasks.

Article 47.- Replacing judges or people's jurors

Judges and/or people's jurors must refuse to conduct the civil procedures or be replaced in the following cases:

1. In one of the cases prescribed in Article 46 of this Code;

2. They are in the same trial panel and have a close relationship with one another;

3. They have participated in the first-instance, appellate, cassation or re-opening trials of such cases, except where they are members of the Judges' Council of the Supreme People's Court or the Judges' Committees of the provincial-level people's courts, they may participate in adjudicating a case many times according to the cassation or reopening procedures;

4. They have acted as procedure-conducting persons in such cases in the capacity as procurator or court clerk.

Article 48.- Replacing procurators

Procurators must refuse to conduct civil procedures or be replaced in the following cases:

1. In one of the cases prescribed in Article 46 of this Code;

2. They have acted as procedure-conducting persons in the same case in the capacity as judge, people's juror, procurator or court clerk.

Article 49.- Replacing court clerks

Court clerks must refuse to conduct civil procedures or be replaced in the following cases:

1. In one of the cases prescribed in Article 46 of this Code;

2. They have acted as procedure-conducting persons in the same case in the capacity as judge, people's juror, procurator or court clerk.

Article 50.- Procedures for refusing to conduct civil procedures or requesting to replace procedure-conducting persons.

1. The refusal to conduct the procedures or the request the replacement of procedure-conducting persons before the opening of court sessions must be made in writing, clearly stating the reason(s) and grounds therefor.

2. The refusal to conduct the procedures or the request the replacement of procedure-conducting persons at court sessions must be recorded in the minutes of the court sessions.

Article 51.- Deciding on the replacement of procedure-conducting persons.

1. Prior to the opening of court sessions, the replacement of judges, people's jurors and/or court clerks shall be decided by the courts' chief judges; if the to be-replaced judges are courts' chief judges, their replacement shall be decided by the chief judges of the immediate superior courts.

Prior to the opening of court sessions, the replacement of procurators shall be decided by the chairmen of the procuracies of the same level; if the to be-replaced procurators are procuracy chairmen, their replacement shall be decided by the chairmen of the immediate superior procuracies.

2. At court sessions, the replacement of judges, people's jurors, court clerks or procurators shall be decided by the trial panels after listening to the opinions of the persons requested to be replaced. The trial panels shall discuss the matter at the deliberation rooms and make decisions by majority.

In cases where judges, people's jurors, court clerks and/or prosecutors must be replaced, the trial panels shall issue decisions to postpone the court sessions. The appointment of other judges, people's jurors and/or court clerks as the replacement shall be decided by the courts' chief judges. If the to be-replaced persons are the courts' chief judges, their replacement shall be decided by the chief judges of the immediate superior courts. The appointment of procurators as the replacement shall be decided by the chairmen of the procuracies of the same level; if the to be-replaced procurators are chairmen of the procuracies of the same level, their replacement shall be decided by the chairmen of the immediate superior procuracies.