Chương VI Bộ luật Tố tụng dân sự 2004: Người tham gia tố tụng

Chapter VI

PARTICIPANTS IN CIVIL PROCEDURES

Section 1. INVOLVED PARTIES IN CIVIL CASES

Article 56.- Involved parties in civil cases

1. The involved parties in civil cases mean individuals, agencies and/or organizations, including the plaintiffs, the defendants and the persons with related interests and obligations.

2. The plaintiff in a civil case is the person that initiates lawsuit or the person for whom the other individual, agency or organization prescribed by this Code initiates the lawsuit to request the court to resolve the civil case when he/she/it holds that the legitimate rights and interests of that person have been infringed upon.

Agencies and organizations prescribed by this Code, which institute civil cases to request courts to protect the public interests, the State's interests in the domains under their respective charges are also plaintiffs.

3. The defendant in a civil case is the person against whom the plaintiff initiates a lawsuit or the other individual, agency or organization prescribed by this Code initiates a lawsuit to request the court to resolve the civil case when he/she/it holds that the legitimate rights and interests of the plaintiff have been infringed upon by such person.

4. The persons with related interests and/or obligations in civil cases are those who neither initiate lawsuits nor are sued, but the resolution of the civil cases is related to their interests and/or obligations and, therefore they themselves request or other involved parties request to include them in the proceedings in the capacity as the persons with related interests and/or obligations and such requests are accepted by courts.

Where the resolution of a civil case is related to the interests and/or obligations of a person but no one requests to include him or her in the proceedings in the capacity as the persons with related interests and/or obligations, the court shall have to include that person in the proceedings in the capacity as the person with related interests and/or obligations.

Article 57.- The involved parties' civil procedure law capacity and civil procedure act capacity

1. The civil procedure law capacity means the capability to have the law-prescribed rights and obligations in civil procedures. Every individual, agency and organization shall have the same civil procedure law capacity in requesting the court to protect his/her/its legitimate rights and interests.

2. The civil procedure act capacity means the ability to exercise one's own rights and obligations by him/herself in civil procedures or authorize his/her representative to participate in civil procedures.

3. The involved parties being persons aged full 18 years or older shall have full civil procedure act capacity, except for persons losing their civil act capacity and persons having restricted civil act capacity or except otherwise provided for by law.

4. The involved parties being persons aged under 6 years or persons losing their civil act capacity shall not have the civil procedure act capacity. The protection of the legitimate rights and interests of such persons at courts shall be performed by their lawful representatives.

5. For the involved parties being persons aged between full 6 and under 15 years, the protection of their legitimate rights and interests at courts shall be performed by their lawful representatives.

6. The involved parties being persons aged between full 15 years and under 18 years, who have worked under labor contracts or involved in civil transactions with their own properties shall have the right to participate in civil procedures themselves regarding matters related to such labor or civil relations. In such cases, the court shall have the right to summon their lawful representatives to participate in the procedures. For other matters, the protection of their legitimate rights and interests at courts shall be performed by their lawful representatives.

7. The involved parties being agencies, organizations shall participate in civil procedures through their lawful representatives.

Article 58.- Rights and obligations of the involved parties.

1. The involved parties shall have equal rights and obligations when participating in civil procedures.

2. When participating in civil procedures, the involved parties shall have the following rights and obligations:

a) To supply evidences and proofs to defend their legitimate rights and interests;

b) To request individuals, agencies and/or organizations that are keeping, managing evidences to supply such evidences to them for submission to courts;

c) To request courts to verify, gather evidences of the cases, which they cannot do by themselves or request courts to summon witnesses, to ask for expertise, valuation; to complain with the procuracies about evidences already verified, collected by courts at requests of other involved parties;

d) To read and take notes, photocopy documents and/or evidences produced by other involved parties or collected by courts;

e) To request courts to decide on the application of provisional emergency measures;

f) To reach agreement with one another on the resolution of cases; to participate in conciliation conducted by courts;

g) To receive regular notices for the exercise of their rights and obligations;

h) To protect by themselves or ask other persons to protect their legitimate rights and interests;

i) To participate in court sessions;

j) To request the replacement of civil procedure conducting persons or participants in civil procedures under the provisions of this Code;

k) To propose to courts matters which need to be inquired from other persons; to confront each other or witnesses;

l) To argue at court sessions;

m) To be provided with extracts of court judgments and/or decisions;

n) To appeal or complain about court judgments and/or decisions according to the provisions of this Code;

o) To detect and notify to persons competent to protest the grounds for protest according to cassation or reopening procedures against courts' legally effective judgments and/or decisions;

p) To be present under courts' writ of summon and abide by courts' decisions during the time of resolving of the cases;

q) To respect courts, and strictly observe the court's rules;

r) To advance court fees and charges as stipulated by laws;

s) To strictly abide by the legally effective judgments and/or decisions of courts;

t) Other rights and obligations prescribed by law.

Article 59.- Rights and obligations of the plaintiffs

1. The plaintiffs shall have the following rights and obligations:

a) The involved parties' rights and obligations prescribed in Article 58 of this Code;

b) To withdraw part or whole of their lawsuit claims; or modify the contents of lawsuit claims;

c) To request courts to let persons with related rights and/or interests to participate in the procedures;

d) To request the court to suspend the case resolution.

2. A plaintiff who has been duly summoned twice by the court but is still absent shall be deemed to have given up his/her lawsuit.

Article 60.- Rights and obligations of the defendants

1. The defendants shall have the following rights and obligations:

a) The involved parties' rights and obligations prescribed in Article 58 of this Code;

b) To accept part or whole of the plaintiffs' claims or to reject the claims of the plaintiffs;

c) To make counter-claims against the plaintiffs if they are related to the plaintiffs' claims or set off the obligations claimed by the plaintiffs;

d) To be notified by courts of the lawsuits against them.

2. If a defendant has been duly summoned twice but is still absent, the court shall conduct the trial in his/her absence.

Article 61.- Rights and obligations of the persons with related rights and/or obligations

1. Persons with related rights and/or obligations shall have the following rights and obligations:

a/ The rights and obligations prescribed in Article 58 of this Code;

b/ To be allowed to make independent claims or participate in the procedures on the side of the plaintiffs or the defendants.

2. If the persons with related interests and obligations make independent claims, they shall have the plaintiffs' rights and obligations prescribed in Article 59 of this Code.

3. If the persons with related interests and/or obligations participate in the procedures on the side of the plaintiff or only have interests, they shall have the plaintiffs' rights and obligations prescribed in Article 59 of this Code.

4. If the persons with related interests and/or rights participate in the procedures on the side of the defendants or only have obligations, they shall have the defendants' rights and obligations prescribed in Article 60 of this Code.

Article 62.- Inheritance of procedural rights and obligations.

1. Where the involved parties being individuals die while participating in the procedures and their property rights and obligations are inherited, their heirs shall participate in the procedures.

2. Where the involved parties being agencies or organizations have to terminate their operations or to be dissolved, consolidated, merged, divided, separated or organizationally transformed while participating in the procedures, the inheritance of their procedural rights and obligations shall be determined as follows:

a/ Where the organizations that have to terminate their operations or to be dissolved are joint-stock companies, limited liability companies or partnerships, the individuals and/or organizations being members of such organizations or their lawful representatives shall participate in the procedures;

b/ Where the agencies, organizations that have to terminate their operations or to be dissolved are State agencies, people's armed force units, political organizations, socio-political organizations, professional and socio-political organizations, social organizations, socio-professional organizations or State enterprises, the lawful representatives of the superior agencies of such agencies or organizations or the lawful representatives of the agencies, organizations which are assigned to take over the former's rights and obligations shall participate in the procedures;

c/ Where the organizations are consolidated, merged, divided, separated or organizationally transformed, the individuals or organizations that take over the former's rights and obligations shall participate in the procedures.

3. Where the involved parties are organizations other than legal persons, whose representatives or managers die while participating in the procedures, such organizations shall have to appoint other persons as their representatives to participate in the procedures; if such organizations have to terminate their operations or to be dissolved, the individuals being members of such organizations shall participate in the procedures.

Section 2. OTHER PARTICIPANTS IN THE PROCEDURES

Article 63.- Defense counsels of involved parties' legitimate rights and interests

1. The defense counsels of involved parties' legitimate rights and interests are persons asked by the involved parties and accepted by courts to participate in the procedures to protect the involved parties' legitimate rights and interests.

2. The following persons can be accepted by courts to act as defense counsels of the involved parties' legitimate rights and interests:

a) Lawyers who participate in the procedures under the provisions of the legislation on lawyers;

b) Vietnamese citizens who have full civil act capacity, have not been convicted or have been convicted but have their criminal records remitted, who do not fall into the cases of being subject to the application of administrative handling measure of sending to medical treatment establishments, reformatories or to administrative probation; who are not officers or employees in the court, procuracy or police sectors.

3. The defense counsels of the involved parties' legitimate rights and interests can defend the legitimate rights and interests of more than one involved party in the same case, if those persons' legitimate rights and interests do not conflict each other. Many defense councels of the involved parties' legitimate rights and interests may jointly defend the legitimate rights and interests of one involved party in a case.

Article 64.- Rights and obligations of defense counsels of the involved parties' legitimate rights and interests

1. To participate in the procedures right at the time of lawsuit initiation or at any stage in the civil procedures. Defense counsels of the involved parties’ legitimate rights and interests may participate in cassation or reopening trial court sessions if the courts deem it necessary.

2. To verify, collect and supply evidences to courts, to study case files and to take notes, to copy necessary documents in the case files in order to defend the legitimate rights and interests of the involved parties.

3. To participate in conciliation, to participate in court sessions or make their written defense of the legitimate rights and interests of the involved parties.

4. To request on behalf of the involved parties the replacement of procedure-conducting persons and/or other procedure participants according to the provisions of this Code.

5. To assist the involved parties in legal matters related to the defense of their legitimate rights and interests.

6. The right and obligations prescribed at Points l, p and q, Clause 2, Article 58 of this Code.

Article 65.- Witnesses

Persons who know details related to the contents of cases may be summoned by courts to participate in the procedures in the capacity as witnesses. Persons who lose their civil act capacity cannot act as witnesses.

Article 66.- Rights and obligations of witnesses

1. To supply all information, documents and/or objects they have obtained, which are related to the resolution of cases.

2. To honestly declare details they know, which are related to the resolution of cases.

3. To refuse to make declarations if their declarations are related to State secrets, professional secrets, business secrets, personal secrets or such declarations adversely affect or harm the involved parties being their close relatives.

4. To be off duty while the courts summon them or take their testimonies, if they work in agencies or organizations.

5. To be entitled to travel expenses and other regimes as stipulated by law.

6. To request the courts which have summoned them and competent State agencies to protect their lives, health, honor, dignity, properties and other legitimate rights and interests when participating in the procedures; to complain about procedural acts of procedure-conducting persons.

7. To compensate and bear responsibility before law for damage caused to the involved parties or other persons by their untruthful testimonies.

8. To be present at court sessions under the court's summon if the witness's testimony must be given publicly at court sessions; where witnesses fail to show up at court sessions without plausible reasons and their absence obstruct the trial, the trial panels may issue decisions to escort them to court sessions.

9. To make commitments before courts to perform their rights and obligations, except for cases where the witnesses are minors. Those witnesses who give false testimonies, supply untruthful documents, refuse to give testimonies or are absent without plausible reasons when summoned by courts shall bear responsibility as prescribed by law.

Article 67.- Expert-witnesses

Expert-witnesses are persons who have law-prescribed necessary knowledge and/or experiences in the fields where exist objects needed to be expertised, who are selected under the agreement reached between the involved parties or called by courts to expertise the objects in question at the request of one or more involved parties.

Article 68.- Rights and obligations of expert-witnesses

1. Expert-witnesses shall have the following rights and obligations:

a) To read documents in the case files which are related to the to be-expertised objects; to request courts to provide documents necessary for the expertise;

b) To question participants in legal procedures about matters related to the to be - expertised objects;

c) To be present under the courts' summons and answer questions related to the expertise and expertising conclusions in an honest, well-grounded and objective manner;

d) To notify the courts in writing of impossibility to conduct the expertise as the matters needed to be expertised go beyond their professional capability and/or the documents supplied in service of the expertising are inadequate or unusable;

e) To preserve the received documents and return them to courts together with their expertising conclusions or with the notices on impossibility to conduct expertise;

f) Not to arbitrarily collect documents for conducting the expertise nor to contact other participants in the procedures if such contacts effect the expertising results; not to disclose secret information they know while conducting the expertise nor to inform the expertising results to other persons, except for the judges who decide to call the expertise;

g) To enjoy travel expenses and other regimes as stipulated by law;

h) To make commitments before courts to perform their rights and obligations.

2. Those expert-witnesses who refuse to make expertising conclusions without plausible reasons or who make untruthful expertising conclusions or are absent without plausible reasons when summoned by courts must bear responsibility therefor as prescribed by law;

3. Expert-witnesses must refuse to take the job or be replaced in the following cases:

a) They fall into one of the cases prescribed in Clauses 1 and 3 of Article 46 of this Code;

b) They have participated in the procedures in the capacity as defense counsels of the legitimate rights and interests of the involved parties, as witnesses or interpreters in the same case;

c) They have conducted the procedures in the capacity as judge, people's juror, procurator or court clerk in the same case.

Article 69.- Interpreters

Interpreters are persons capable of translating a foreign language into Vietnamese and vice versa in cases where procedure participants are unable to use Vietnamese. Interpreters shall be selected under the agreement between the involved parties and are accepted or requested by courts.

Article 70.- Rights and obligations of interpreters

1. Interpreters shall have the following rights and obligations:

a) To be present under courts' summons;

b) To interprete truthfully, objectively and accurately;

c) To request procedure-conducting persons and/or participants to additionally explain their words which need to be interpreted;

d) Not to contact other procedure participants if such contacts affect the truthfulness, objectiveness and accuracy of their interpretation;

e) To enjoy travel expenses and other regimes as stipulated by law;

f) To make commitments before courts to perform their rights and obligations.

2. Those interpreters who deliberately provide untruthful translations or are absent without plausible reasons when summoned by courts must bear responsibility therefor as prescribed by law.

3. Interpreters must refuse to take the job or be replaced in the following cases:

a) They fall into one of the cases prescribed in Clauses 1 and 3 of Article 46 of this Code;

b) They have participated in the proceedings in the capacity as defense counsels of the legitimate rights and interests of involved parties, witnesses or expert-witnesses in the same case;

c) They have conducted the procedures in the capacity as judge, people's juror, procurator or court clerk.

4. The provisions of this Article shall also apply to sign-language interpreters for dumb or deaf persons.

Where only representatives or relatives of the dumb or deaf persons understand their sign language, such representatives or relatives may be accepted by courts to act as interpreters for such dumb or deaf persons.

Article 71.- Procedures for refusing to give expertise opinions or interpretations or requesting the replacement of expert-witnesses or interpreters.

1. The refusal to give expertise opinions or interpretations or the request for replacement of expert-witnesses or interpreters prior to the opening of court sessions must be made in writing, clearly stating the reasons therefor.

2. The refusal to give expertise opinions or interpretations or the request for replacement of expert-witnesses or interpreters at court sessions must be recorded in the minutes of the court sessions.

Article 72.- Deciding on replacement of expert-witnesses, interpreters

1. Prior to the opening of court sessions, the replacement of expert-witnesses and/or interpreters shall be decided by courts' chief judges.

2. At court sessions, the replacement of expert-witnesses and/or interpreters shall be decided by the trial panels after listening to the opinions of the persons requested to be replaced. The trial panels shall discuss matters in the deliberation rooms and make decisions by majority.

Where expert-witnesses or interpreters must be replaced, the trial panels shall issue decisions to postpone the court sessions. The request for other expert-witnesses or interpreters shall comply with the provisions of Articles 67 and 69 of this Code.

Article 73.- Representatives

1. The representatives in civil procedures comprise the representatives at law and the proxy representatives.

2. The representatives at law as defined in the Civil Code shall be the representatives at law in the civil procedures, except where the representative right is restricted under law provisions.

Individuals, agencies, organizations that initiate lawsuit to protect the legitimate rights and interests of others shall also be the protected persons' representatives at law in the civil procedures.

3. The proxy representatives as defined in the Civil Code shall be the proxy representatives in civil proceedings; for divorce cases, the involved parties must not authorize others to represent them in civil procedures.

Article 74.- Rights and obligations of representatives

1. The representatives at law in civil procedures shall exercise the procedural rights and obligations of the involved parties they represent.

2. The proxy representatives in civil procedures shall exercise the procedural rights and obligations in accordance with the contents of the authorization documents.

Article 75.- Cases of disallowance to act as representatives

1. Persons must not act as representatives at law in the following cases:

a) If they are also the involved parties in the same case with the represented persons and their legitimate rights and interests are contrary to those of the represented persons;

b) If they are acting as representatives at law in civil procedures for other involved parties whose legitimate rights and interests are contrary to those of the represented persons in the same case.

2. The provisions in Clause 1 of this Article shall also apply to the case of proxy representatives in civil procedures.

3. Officials or employees in the court, procuracy or police sectors must not act as representatives in civil procedures, except for cases where they participate in civil procedures in the capacity as representatives of their agencies or as representatives at law.

Article 76.- Appointing representatives in civil procedures

While civil procedures are conducted, if any involved party is the person who has restricted civil act capacity but has no representative or his/her representative at law falls into one of the cases specified in Clause 1, Article 75 of this Code, the court must appoint the representative to participate in the proceedings at courts.

Article 77.- Termination of the representation in civil procedures

The representatives at law, the proxy representa-tives in civil procedures shall terminate their represen-tation according to the provisions of the Civil Code.

Article 78.- Consequences of the termination of representation in civil procedures

1. In cases where the representation at law terminates while the represented persons have come of age or had their civil act capacity restored such persons shall participate in civil procedures themselves or authorize other persons to participate in civil procedures according to procedures prescribed by this Code.

2. In cases where the proxy representation terminates, the involved parties or their heirs shall participate in civil procedures in person or authorize other persons to participate in the procedures according to the procedures prescribed by this Code.

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