Chương VII Bộ luật Tố tụng dân sự 2004: Chứng minh và chứng cứ

Chapter VII

PROOFS AND EVIDENCES

Article 79.- Obligations to prove

1. The involved parties requesting courts to protect their legitimate rights and interests must introduce evidences to prove that such requests are well-grounded and lawful.

2. The involved parties that protest against other persons' claims against them must prove that such protests are well-grounded and must provide evidence to prove.

3. Individuals, agencies or organizations that initiate lawsuit to protect public interests, the State’s interests, or request courts to protect others' legitimate rights and interests must introduce evidences to prove that their lawsuits or requests are well-grounded and lawful.

4. The involved parties that are obliged to introduce evidences to prove but fail to introduce evidences or fail to introduce adequate evidences shall have to bear the consequences of such failure to prove or inadequate evidences.

Article 80.- Details and facts that are not required to be proved

1. The following details and facts are not required to be proved:

a) Details and facts that are clear and come to everyone's knowledge and are accepted by courts;

b) Details and facts that have been identified in the court judgments or decisions which are legally effective or in decisions of competent State bodies which have come into force;

c) Details and facts that have been recorded in documents and have been duly notarized or authenticated.

2. If either involved party acknowledges or does not protest against the details or facts given by the other involved party, the latter must not prove them.

3. If an involved party has a representative to participate in the procedures, that representative's acknowledgement is regarded as the acknowledgement of such involved party.

Article 81.- Evidences

Evidences in civil cases or matters are factual things which are handed to courts by involved parties, individuals, agencies or organizations or gathered by courts according to the order and procedures prescribed by this Code and are used by Courts as bases to determine whether the involved parties' claims or protests are well grounded and lawful or not as well as to determine other details necessary for the proper resolution of civil cases or matters.

Article 82.- Sources of evidence

Evidences are gathered from the following sources:

1. Readable, audible or visible materials;

2. Exhibits;

3. Involved parties' testimonies;

4. Witnesses' testimonies;

5. Expertising conclusions;

6. On-site appraisal minutes;

7. Practices;

8. Property evaluation results;

9. Other sources prescribed by law.

Article 83.- Identifying evidences

1. Contents-readable materials shall be regarded as evidences if they are originals or copies lawfully notarized or authenticated or supplied and certified by competent agencies or organizations.

2. Audible, visible materials shall be regarded as evidences if they are presented together with documents certifying the origins of those materials or documents related to such audio and/or video recording.

3. Exhibits to be regarded as evidences must be the original and related to the cases or matters.

4. Involved parties' testimonies, witnesses' testimonies shall be regarded as evidences if they are recorded in writing or in audio-tapes, audio-discs, or video-tapes or discs as provided for in Clause 2 of this Article, or are given orally at court sessions.

5. Expertising conclusions shall be regarded as evidences if the expertise is conducted in accordance with the procedures prescribed by law.

6. On-site appraisal minutes shall be regarded as evidences if the appraisal is conducted in accordance with the procedures prescribed by law and they are signed by the members who participate in the appraisal.

7. Practices shall be regarded as evidences if they are recognized by the local community where such practices exist.

8. Property valuation results shall be regarded as evidences if the valuation is carried out in accordance with the procedures prescribed by law or the documents provided by pricing experts comply with the provisions in Clause 1 of this Article.

Article 84.- Hand-over of evidences

1. During the process of resolving civil cases or matters by courts, the involved parties shall have the rights and obligations to hand over evidences to the courts; if they fail to hand over the evidences or do not hand over all evidences, they must bear the consequences thereof, except otherwise provided for by law.

2. The hand-over of evidences to courts by involved parties must be recorded in the minutes of evidence hand-over and receipt. The minutes must clearly state the appellations, forms, contents, characteristics of the evidences; the number of copies, the number of pages and time of reception; the signatures or finger prints of the deliverers, the signatures of the recipients and seals of the courts. The minutes must be made in two copies, one shall be incorporated in the case files and the other shall be handed to the involved parties handing over the evidences.

3. The evidences submitted in ethnic minority languages or foreign languages to courts by the involved parties must be enclosed with their Vietnamese translations lawfully notarized or authenticated.

Article 85.- Collecting evidences

1. If it is deemed that the evidences included in the files of civil cases or matters have not constituted sufficient grounds for the resolution thereof, the judges shall request the involved parties to deliver additional evidences.

2. Where the involved parties can not collect the evidences by themselves and make requests therefor, the judges may apply one or several of the following measures to collect the evidences:

a) Taking testimonies of the involved parties, witnesses;

b) Calling expertises;

c) Deciding to valuate the properties;

d) Making on-site inspection, appraisal;

e) Authorizing the collection of evidences;

f) Requesting individuals, agencies or organizations to supply readable, audible and/or visible materials, or other exhibits related to the resolution of civil cases or matters.

3. When applying the measures specified at Points b, c, d, e, and f, Clause 2 of this Article, the judges must issue decisions clearly stating the reasons for the application and the request of the courts.

The involved parties are entitled to complain about courts' decisions to apply evidence-gathering measures of courts. Their complaints must be addressed immediately to the procuracies. The procuracies are entitled to request the courts to verify, gather evidences on the basis of the involved parties' complaints, and consider the participation in court sessions.

In case of necessity, the procuracies may request the involved parties, individuals, agencies and/or organizations to supply dossiers, documents and/or exhibits in order to ensure the exercise of right to appeal, cassation or reopening procedures.

Article 86.- Taking testimonies of involved parties

1. Judges shall take the testimonies of involved parties only when the latter have not yet made the written testimonies or the contents of their written testimonies are insufficient and/or unclear. The involved parties must write the testimonies themselves and sign their names thereon. Where the involved parties cannot write the testimonies by themselves, the judges shall take their testimonies. The taking of involved parties' testimonies shall only focus on details declared inadequately and/or unclearly by the involved parties. The judges themselves or the court clerks shall record the involved parties' testimonies in the minutes. Judges shall take testimonies of the involved parties at the court offices or outside the court offices in case of necessity.

2. The minutes recording involved parties' testimonies must be read or heard and signed or fingerprinted by such involved parties. The involved parties may request amendments and/or supplements to be inscribed in the testimony-recording minutes and sign or fingerprint for certification. The minutes must be signed by the persons who take the testimonies, the minutes recorders and affixed with court's seals. If the minutes are made in loose pages, each page must be signed and affixed with seal in both margins. In cases where the minutes of taking the involved parties' testimonies are made outside the court offices, the testimony taking must be certified by witnesses or by the People's Committees or police offices of communes, wards or district, township or by agencies or organizations where the minutes are made.

3. The taking of involved parties' testimonies in one of the cases prescribed in Clauses 4 and 5, Article 57 of this Code must be carried out in the presence of the lawful representatives of such involved parties.

Article 87.- Taking testimonies of witnesses

1. At the involved parties' requests or when it is deemed necessary, judges may take testimonies of witnesses at court offices or outside court offices.

2. The procedures for taking witnesses' testimonies shall be the same as those for taking the involved parties' testimonies provided for in Clause 2, Article 86 of this Code.

3. The taking of testimonies of witnesses aged not full 18 years, or of persons with restricted civil act capacity must be carried out in the presence of their representatives at law or guardians.

Article 88.- Confrontation

1. At the involved parties' requests or when contradictions are deemed to have existed in the testimonies of the involved parties or witnesses, judges may conduct confrontations among the involved parties, between the involved parties and the witnesses or among the witnesses.

2. Confrontations must be recorded in minutes which must be signed by the participants in such confrontations.

Article 89.- On-site inspection, appraisal

1. On-site inspections, appraisals must be carried out by judges in the presence of representatives of the commune-level People's Committees, or agencies, organizations where exist objects which need to be inspected, appraised, and the on-site inspections, appraisals must be notified in advance so that the relevant involved parties know and witness such inspections, appraisals.

2. On-site inspections, appraisals must be recorded in minutes. The on-site inspection, (or) appraisal minutes must clearly state the inspection, appraisal results, clearly describe the sites, contain the signatures of the persons that conduct the inspections, appraisals and the signatures or fingerprints of the involved parties if they are present, the representatives of the commune-level People's Committees or agencies, organizations where exist the to be-inspected-appraised objects and others that are invited to participate in the inspections, appraisals. After completing the on-site inspections, appraisals minutes, the persons that conduct the inspections, appraisals must request the representatives of the commune-level People's Committees, agencies or organizations where exist the objects which need to be inspected, appraised to sign and seal for certification.

Article 90.- Requesting expertises

1. Upon the option agreement of the involved parties, or at the request of one or more of the involved parties, judges may issue decisions calling for expertises. The decisions requesting expertises must clearly state the names and addresses of the expert-witnesses, the objects of expertise, matters that need to be expertised and specific requirements requiring the expert-witnesses' conclusions.

2. The expert-witnesses that receive decisions requesting the expertises must carry out the expertises according to law provisions.

3. Where they deem that the expertising conclusions are inadequate, unclear or violate law, at the request of one or more involved parties, the judges may issue decisions calling additional expertises or re-expertises. The re-expertises may be conducted by the persons that have conducted the preceding expertises or by other professional agencies as provided for by law.

Article 91.- Requesting expertise of evidences denounced to be forgery

1. Where evidences are denounced to be forgery, the suppliers of such evidences may withdraw them. If not, the denouncers may request the courts to solicit expertises as provided for in Article 90 of this Code.

2. Where the evidence forgery shows criminal signs, the courts shall transfer them to the competent criminal investigation bodies.

3. The suppliers of forged evidences must compensate for damage if the forgery of evidences causes damage to others.

Article 92.- Property valuation

1. The courts shall issue decisions to valuate disputed properties in the following cases:

a) It is so requested by one or all of the involved parties;

b) The parties agree on low prices for the purposes of evading taxes or reducing payable court fees.

2. The Pricing Council set up under a court decision is composed of its chairman and members being representatives of the finance bodies and other relevant professional agencies. The Pricing Council shall carry out the valuation only when all-their members are present. When necessary, representatives of the commune-level People's Committees of the localities where the properties subject to valuation is located shall be invited to witness the valuation. The involved parties shall be notified in advance of the time and venue of the evaluation and have the right to attend and contribute comments on the evaluation. The right to decide on the prices of the valuated properties shall rest on the Pricing Councils.

3. The finance agencies and other relevant professional agencies shall be responsible for sending their officials to join the Pricing Councils and create conditions for them to perform their tasks. Persons appointed to be members of the Pricing Council must take part fully in the valuation.

4. The valuation must be recorded in minutes, stating clearly the opinions of each member, of the involved parties if they attend. A decision of the Pricing Council must be voted for by more than half of its members. The Pricing Council members, the involved parties, the witnesses must sign the minutes.

Article 93.- Entrusting the collection of evidences

1. In the course of resolving civil cases or matters, a court may issue a decision to entrust another court or competent agencies defined in Clause 4 of this Article to take the testimonies of involved parties, and/or witnesses, to conduct on-site appraisals or property valuations or other measures to gather evidences and to verify details of the civil cases or matters.

2. The entrustment decisions must clearly state the names and addresses of the plaintiffs and the defendants, the disputed relationship and specific entrusted jobs to collect of evidences.

3. The court that receives the entrustment decision shall have the responsibility to perform the specific assignments within thirty days after receiving the entrustment decision and notify in writing the results to the court that has issued the entrustment decision. In cases where it cannot realize the specific assignments, it must send a written notification of such failure stating clearly the reasons therefor to the court that has issued the entrustment decision.

4. Where the gathering of evidences must be conducted outside the Vietnamese territory, the courts shall carry out the entrustment procedures through competent Vietnamese agencies or civil procedure-conducting agencies of the foreign country(ies) that has (have) signed judicial assistance agreement(s) with Vietnam or together with Vietnam has (have) acceded to an international treaty on this matter.

Article 94.- Requesting individuals, agencies and/or organizations to supply evidences

1. Where the involved parties that have applied necessary measures to gather evidences still fail to gather by themselves, they may request the courts to collect evidences in order to ensure the proper resolution of civil cases and/or matters.

The involved parties that request the courts to gather evidences shall make their written applications clearly stating the point(s) to be proved, the evidence to be gathered, the reasons why they can not gather the evidences by themselves; full names and addresses of the individuals, agencies or organizations that are managing or keeping the evidences which need to be collected.

2. The court may request directly or in writing individuals, agencies or organizations that are managing a keeping the evidences to supply them. The individuals, agencies or organizations that are managing or keeping such evidences shall have the responsibility to supply the evidences fully and in time as requested by the courts within fifteen days as from the date of receiving the requests.

Article 95.- Preserving evidences

1. If evidences have been handed over at courts, the preservation of such evidences shall rest with the courts;

2. If evidences cannot be handed over at courts, the preservation of such evidences shall rest with the evidence keepers;

3. Where it is necessary to hand over evidences to the third persons for preservation, judges shall issue decisions and make minutes of the hand-over to those persons for preservation. The persons undertaking the preservation must sign the minutes, be entitled to remuneration and bear the responsibility for preserving such evidences.

Article 96.- Assessing evidences

1. The assessment of evidences must be objective, comprehensive, adequate and accurate.

2. Courts must assess evidences one by one, the link between evidences and determine the legality of every evidence.

Article 97.- Disclosing and using evidences

1. Every evidence shall be publicly and equally disclosed and used, except for cases specified in Clause 2 of this Article.

2. Courts shall not publicize evidences related to State secrets, fine customs and practices of the nation, professional secrets, business secrets or secrets of individuals' private lives at the legitimate requests of the involved parties.

3. Procedure-conducting persons and procedure participants must keep secret, as provided for by law, evidences classified for non-disclosure as prescribed in Clause 2 of this Article.

Article 98.- Protecting evidences

1. Where evidences are being destroyed or are in danger of being destroyed or is hard to be gathered in the future, the involved parties may file their applications requesting the courts to decide on the application of necessary measures to preserve evidence. The courts may decide to apply one or several of the measures including sealing, keeping, photographing, audio-recording, video-recording, restoration, examination, minutes making and other measures.

2. Where witnesses are threatened, controlled or bought off for the purpose of not supplying evidences or supplying untruthful evidences, the courts shall have the right to issue decisions to force the persons who have committed acts of threatening, controlling or buying off the witnesses to terminate their acts. Where the threatening controlling or buying-off acts show criminal signs, the courts shall request procuracies to examine the penal liability.