Chương XII Bộ luật Tố tụng dân sự 2004: Khởi kiện và thụ lý vụ án

Chapter XII

INSTITUTION AND ACCEPTANCE OF CASES

Article 161.- Right to institute cases

Individuals, agencies and organizations are entitled to institute cases by themselves or through their lawful representatives (hereinafter referred collectively to as the litigators) at competent courts to request the protection of their legitimate rights and interests.

Article 162.- Right to institute civil cases to protect legitimate rights and interests of other persons, public interests and/or the State's interests

1. The population, family and children agencies and the Women's Union shall, within the scope of their tasks and powers, have the right to institute marriage-and family-related cases if it is so stipulated by the Law on Marriage and Family.

2. Superior Trade Unions of the grassroots Trade Unions shall have the right to institute labor cases where it is necessary to protect the legitimate rights and interests of the labor collective as prescribed by law.

3. Agencies and organizations shall, within the scope of their respective tasks and powers, have the right to institute civil cases to request courts to protect the public interests and/or the State’s interests in the domains under their respective charge.

Article 163.- Scope of initiation of lawsuits

1. An individual, agency or organization may initiate a lawsuit against another or many other individuals, agencies or organizations regarding one legal relation or many interrelated legal relations for settlement in the same case.

2. Many individuals, agencies or organizations may jointly initiate a lawsuit against another individual, agency or organization regarding one legal relation or many interrelated legal relations for settlement in the same case.

3. Competent individuals, agencies or organizations defined by this Code may initiate lawsuits against another individual, agency or organization or many other individuals, agencies or organizations regarding one legal relation or many interrelated legal relations for settlement in the same case.

Article 164.- Form and contents of a lawsuit petition

1. Individuals, agencies and organizations initiating lawsuits must prepare their petitions.

2. A lawsuit petition must include the following principal contents:

a) Date of its making;

b) Name of the court receiving the lawsuit petition;

c) Name and address of the litigator;

d) Name and address of the person with his/her rights and interests to be protected;

e) Name and address of the person who is sued;

f) Name(s) and address(es) of persons(s) with related rights and obligations, if any;

g) Specific matters requested to be settled by the court against the defendant, the persons(s) with related rights and obligations;

h) Names and addresses of witnesses, if any;

i) Documents and evidences to prove that the lawsuit petition is well-grounded and lawful;

j) Other information which the litigator deems necessary for the resolution of the case;

k) The lawsuit petition must be signed or fingerprinted by the individual being the litigator; or signed or stamped by the lawful representative of the agency or organization being the litigator.

Article 165.- Documents and/or evidences accompanying lawsuit petitions

The litigators must send together with their lawsuit petitions, documents and/or evidences to prove that their claims are well-grounded and lawful.

Article 166.- Submission of lawsuit petitions to courts

1. Persons who institute cases shall forward their lawsuit petitions and the accompanying documents and/or evidences to courts competent to settle their cases by the following modes:

a) Direct submission at courts;

b) Sending them to courts by post.

2. The date of initiating a lawsuit shall be the date on which the lawsuit petition is filed at court or the postmarked date of sending the petition.

Article 167.- Procedures for receiving lawsuit petitions

Courts must receive lawsuit petitions lodged by litigators directly or via post and must record them in the petition registers. Within five working days as from the date of receiving the petitions, the courts must consider them and issue one of the following decisions:

1. To proceed with the procedures to accept the cases if they fall within their jurisdiction;

2. To transfer the lawsuit petitions to competent courts and notify the litigators thereof if the cases fall under other courts' jurisdiction;

3. To return the lawsuit petitions to the litigators if such matters do not fall under the court's jurisdiction.

Article 168.- Returning lawsuit petitions

1. The courts shall return the lawsuit petitions in the following cases:

a) The statute of limitations for lawsuit has expired;

b) The petitioners have no right to initiate a lawsuit or do not have full civil procedure act capacity;

c) The matters have been resolved by effective judgments or decisions of courts or legally binding decisions of competent State agencies, except for cases where the courts reject the applications for divorce, for change in child adoption, change of alimony levels or damage compensation levels, or applications for the reclaim of leased or lent properties or houses leased, lent or offered for other people's free-of-charge stay, which have not been recognized by courts due to the lack of lawsuit conditions;

d) The notification time limit prescribed in Clause 2, Article 171 of this Code has expired while litigators fail to come to courts to carry out procedures for accepting the lawsuits, except for cases where there are plausible reasons;

e) There are not sufficient conditions to initiate lawsuits;

f) The cases do not fall under the courts' jurisdiction.

2. When returning lawsuit petitions, courts shall make written documents enclosed therewith, clearly stating the reasons therefor.

Article 169.- Request for amendment and/or supplementation of lawsuit petitions

1. In cases where a lawsuit petition does not fully contain the details prescribed in Clause 2, Article 164 of this Code, the court shall notify such to the litigator for amendment and/or supplementation within a time limit set by the court, which, however, must not exceed thirty days; for special cases, the court may extend that time limit but for not more than fifteen days.

2. In cases where the litigators have amended and/or supplemented their lawsuit petitions strictly according to the provisions of Clause 2, Article 164 of this Code, the courts shall continue processing the cases; if they fail to amend and/or supplement their lawsuit petitions as requested by courts, the courts shall return the petitions as well as documents and evidences to the litigators.

Article 170.- Lodging and settling complaints about the return of lawsuit petitions

1. Within three working days as from the date of receiving the lawsuit petitions and accompanying documents as well as evidences, which are returned by courts, the litigators may file their complaints to the chief judges of the courts which have returned the lawsuit petitions.

2. Within three working days as from the date of receiving the complaints about the return of lawsuit petitions, the courts' chief judges must issue one of the following decisions:

a) To uphold the return of the lawsuit petitions;

b) To receive back the lawsuit petitions and accompanying documents as well as evidences in order to process the cases.

Article 171.- Accepting cases

1. After receiving lawsuit petitions and accompanying documents and/or evidences, if deeming that the cases fall within their jurisdiction, the courts shall immediately notify the litigators thereof in writing so that they may come to courts for carrying out procedures to advance the court fees in cases where they are liable thereto.

2. The courts shall estimate the court fee advance amounts, write them down on the notices and hand them to the litigators for payment of court fee advances. Within fifteen days as from the date of receiving the courts' notices on payment of court fee advances, the litigators must pay such advances.

3. The courts shall accept the cases after the litigators submit to the courts the court fee advance payment receipts.

4. In cases where the litigators are exempt from, or not required to pay, court fee advances or court fees, the courts must accept the cases upon receiving the lawsuit petitions and accompanying documents and/or evidences.

Article 172.- Assigning judges to settle cases

1. Within three working days as from the date a case is accepted, the court's chief judge shall assign a judge to resolve the case.

2. In the course of settling the case, if the assigned judge cannot continue with the assigned task, the chief judge of the court shall assign another judge to continue that work; in cases where the trial is being underway without the alternative judge, the case must be retried from the beginning.

Article 173.- Tasks and powers of judges when preparing case files

1. To notify the acceptance of the cases.

2. To request the involved parties to submit documents and evidences to courts.

3. To apply of one or several measures to collect evidences according to the provisions of Clause 2, Article 85 of this Code.

Article 174.- Notice on acceptance of cases

1. Within three working days as from the date of receiving the cases, the courts must send written notices to defendants, individuals, agencies, and organizations with rights and obligations related to the settlement of the cases, to the procuracies of the same level on their acceptances of the cases.

2. Such a written notice must contain the following principal details:

a) Date on which the notice is made;

b) Name and address of the court accepting the case;

c) Name and address of the litigator;

d) Specific matters requested by the litigator for resolution by the court;

e) List of documents and evidences submitted together with the lawsuit petition by the litigator;

f) The time limit within which the notified person must submit to the court his/her written opinions on the litigator's claims and the accompanying documents and/or evidences, if any.

g) Legal consequences of the notified person's failure to submit to the court his/her written opinions on the claims in question.

Article 175.- Rights and obligations of the notified persons

1. Within fifteen days as from the date of receiving the notices, the notified persons must submit to courts their written opinions on the litigators' claims and the accompanying documents and/or evidences, if any.

In cases where an extension of the time limit is needed, the notified persons must file their applications therefor to the courts, clearly stating the reasons; if the extension applications are well grounded, the courts must permit the extension, which, however, must not exceed fifteen days.

2. The notified persons may request the courts to let them read, take note or copy the lawsuit petitions and the accompanying documents as well as evidences.

Article 176.- Defendants' right to make counter-claims

1. Together with their obligation to submit to courts their written opinions on the litigators' claims, the defendants are entitled to file counter-claims against the plaintiffs.

2. The defendants' counter-claims against the plaintiffs shall be accepted in one of the following cases:

a) The counter-claims are made to clear liability against the plaintiffs' claims;

b) The counter-claims, if accepted, may exclude the partial or full acceptance of the plaintiffs' claims;

c) There is an interrelation between the counter-claim and the plaintiff's claim, and if these claims are settled in the same case, the resolution of such case shall be more accurate and quicker.

Article 177.- Right of persons with related rights and obligations to make independent claims

In cases where the persons with related rights and obligations do not participate in the procedures on the side of the plaintiff or the defendant, they shall be entitled to make independent claims when the following conditions are met:

1. The resolution of the case is related to their rights and obligations;

2. Their independent claims are related to the case being settled;

3. If their independent claims are settled in the same case, the resolution of such case shall be more accurate and quicker.

Article 178.- Procedures for making counter-claims or independent claims

The procedures for making counter-claims or independent claims shall comply with this Code’s provisions on procedures for initiating lawsuits by plaintiffs.