Chương XVII Bộ luật Tố tụng dân sự 2004: Thủ tục xét xử phúc thẩm

Chapter XVII

APPELLATE TRIAL PROCEDURES

Article 263.- Scope of appellate trial

The appeal courts shall only review the parts of the first-instance judgments or decisions, which are appealed or protested against or related to the review of the appealed or protested contents.

Article 264.- Participants in appeal court sessions

1. The appellants, the involved parties, individuals, agencies and/or organizations that are related to the resolution of the appeals or protests and the defense counsels of the involved parties' legitimate rights and interests must be summoned to the appeal court sessions. The courts can summon other procedure participants to court sessions if they deem it necessary for the resolution of the appeals or protests.

2. Procurators of the procuracies of the same level must participate in the appeal court sessions in cases where the procuracies lodge the protests or have participated in the first-instance court sessions.

Article 265.- Suspension or stoppage of appellate trials at court sessions

At appeal court sessions, the suspension or stoppage of the appellate trail of cases shall comply with the provisions of Articles 259 and 260 of this Code.

Article 266.- Postponement of appeal court sessions

1. In cases where procurators of the procuracies of the same level, who must participate court sessions, are absent, the appeal court sessions must be postponed.

2. If the appellants are absent for the first time for plausible reasons, the court sessions must be postponed. If the appellants who have been duly summoned twice but are still absent, they shall be considered having waived their appeals and the courts shall issue decisions to stop the appellate trial of the cases, appealed by the absent appellants.

3. If procedure participants other than the appellants are absent from court sessions, the postponement or continuation of the appeal court sessions shall comply with the provisions of Articles 199, 200, 201, 202, 203, 204, 205 and 206 of this Code.

4. The duration for postponement of, and the decisions to postpone, the appeal court sessions shall comply with the provisions of Article 208 of this Code.

Article 267.- Preparation for the opening of appeal court sessions and procedures for starting the appeal court sessions

The preparation for the opening of appeal court sessions and the procedures for starting the appeal court sessions shall comply with the provisions of Articles 212, 213, 214, 215 and 216 of this Code.

Article 268.- Inquiries at court sessions

1. After the conclusion of the procedures for opening an appeal court session, a member of the trial panel shall announce the contents of the case, the decision of the first-instance judgment and the appealed or protested contents.

2. The presiding judge shall ask the following:

a) Whether or not the plaintiff wishes to withdraw his/her/its lawsuit petition.

b) Whether or not the appellant or the procurator wishes to change, supplement or withdraw their appeal or protest;

c) Whether or not the involved parties can reach mutual agreements on the resolution of the case.

Article 269.- Plaintiffs withdraw lawsuit petitions before the opening of, or at, appeal court sessions

1. If the plaintiffs withdraw their lawsuit petitions before the opening of, or at, appellate court sessions, the Trial Panels must ask the defendants whether they agree therewith or not and may settle on a case-by-case basis as follows:

a) Disapproving the withdrawal of lawsuit petitions by the plaintiffs if the defendants disagree;

b) Approving the withdrawal of lawsuit petitions by the plaintiffs if the defendants agree. The Appellate Trial Panels shall issue decisions to abrogate first-instance judgments and stop the resolution of the cases. In this case, the involved parties are still required to pay the first-instance court fees as decided by the first-instance courts and half of the appellate court fees as provided for by law.

2. In cases where the Appellate Trial Panels issue decisions to stop the resolution of the cases, the plaintiffs shall be entitled to re-institute the cases according to the procedures prescribed by this Code, if the statute of limitations for such case re-institution has not yet expired.

Article 270.- Recognizing the agreement of the involved parties at appeal court sessions

1. At appeal court sessions, if the involved parties can reach mutual agreement on the resolution of their cases and their agreements are voluntary and not contrary to law or social ethics, the appellate trial panels shall render appellate judgments to revise the first-instance court judgments and recognize the agreement of the involved parties.

2. The involved parties may also reach agreement on the payment of the first-instance court fees. If they fail to reach such agreement, the courts shall make decision according to law provisions.

Article 271.- Hearing presentations of the involved parties at appeal court sessions

1. In cases where the involved parties still uphold their appeals or the procuracies maintain their protests while the involved parties cannot reach mutual agreement on the resolution of the cases, the appellate trial panels shall start the case trial by listening to the presentations of the involved parties in the following order:

a) The defense counsels of the appellants' legitimate rights and interests shall present the appealed contents and the grounds therefor. The appellants may give additional opinions. In cases where all involved parties appeal, the presentations shall be made in the following order: the defense counsels of legitimate rights and interests of the appellants being plaintiffs and the plaintiffs; the defense counsels of legitimate rights and interests of the appellants being defendants and the defendants; the defense counsels of the legitimate rights and interests of the appellants being persons with related rights and obligations and the persons with related rights and obligations.

In cases where only procuracies protest, the procurators shall present the protested contents and the grounds therefor; in cases where there are both appeal and protest, the involved parties shall present the appealed contents and the grounds therefore first, then the procurators shall present the protested contents and the grounds therefor;

b) The defense counsels of legitimate rights and interests of other parties related to the appeal or the protest shall present their opinions on the appealed and protested contents. The involved parties may give additional opinions.

2. In cases where the involved parties have no defense counsels, they shall themselves present their opinions on the appealed or protested contents as well as their proposals.

3. At the appeal court sessions, the involved parties and procurators may produce additional evidences.

Article 272.- Procedures for inquiries and publicization of documents, examination of exhibits at appeal court sessions

1. Procedures for inquiring participants and publicizing documents, examining exhibits at appeal court sessions shall be the same as those applicable at first-instance court sessions.

2. The inquiry shall be made on matters falling within the scope of appellate trials as stipulated in Article 263 of this Code.

Article 273.- Arguments at appeal court sessions

Arguments at appeal court sessions shall be conducted in a way similar to those at the first-instance court sessions, and the order of presentation shall comply with the provisions of Article 271 of this Code and the arguments shall be conducted only on matters falling within the scope of appellate trials and having been already asked at the appeal court sessions.

Article 274.- Deliberation and judgment pronouncement

The deliberation, the inquiry resumption and arguments, the time for deliberation, pronouncement, amendment and supplementation of appellate judgments shall comply with the first-instance procedures.

Article 275.- Jurisdiction of the appellate trial panels

The appellate trial panels shall have the following rights:

1. To uphold the first-instance judgments;

2. To revise the first-instance judgments;

3. To repeal the first-instance judgments and transfer the case files to the first-instance courts for retrial of the cases;

4. To abrogate the first-instance judgments and stop the resolution of the cases.

Article 276.- Amendment of first-instance judgments

The appellate trial panels can revise part or whole of a first-instance judgment if the first-instance court made a decision in contravention of law in the following cases:

1. The proof and collection of evidences have been carried out sufficiently and in accordance with the provisions of Chapter VII of this Code.

2. The proof and collection of evidences have not yet been carried out sufficiently at the first-instance level but have been fully supplemented at appellate court sessions.

Article 277.- Annulment of first-instance judgments and transfer of case files to the first-instance courts for retrial of cases

The appellate trial panels shall annul the first-instance judgments and transfer the case files to the first-instance courts for retrial of the cases in the following circumstances:

1. The proof and collection of evidences have failed to comply with the provisions of Chapter VII of this Code or have not yet been fully carried out while the supplementation thereof cannot be made at the appeal court sessions;

2. The composition of the first-instance Trial Panels has fail to comply with the provisions of this Code or other serious procedural violations have been committed.

Article 278.- Annulment of first-instance judgments and stoppage of case resolution

The appellate trial panels shall annul first-instance judgments and stop the case hearings if during the resolution of the cases at the first-instance court sessions, the cases fell under one of the circumstances stipulated in Article 192 of this Code.

Article 279.- Appellate court judgments

1. The appellate trial panels shall, in the name of the Socialist Republic of Vietnam, render appellate court judgments.

2. An appellate court judgment shall be composed of:

a) The introduction;

b) The case contents, appeal, protest, assessment;

c) The court ruling.

3. The introduction section must clearly state the name of the appeal court; the code number and date of the case acceptance; the serial number of the judgment and the date of judgment pronouncement; full names of the members of the trial panel, court clerk, procurator, expert-witness and interpreter; full names and addresses of the plaintiffs, defendants, persons with related rights and obligations; agencies or organizations initiating the lawsuit or their lawful representatives, the defense counsels of their legitimate rights and interests; names of appellants or protesting procuracy; public or closed trial, time and place of trial.

4. The section on the case contents, the appeal or the protest and assessment must summarize the contents of the case and decision of the first-instance court; content of the appeal or protest; assessment of the appellate trial panel; specific points, clauses and articles of the legal normative documents on which the appellate trial panel base to settle the case.

The assessment of the appellate trial panel must analyze grounds for accepting or not accepting the appeal or the protest.

5. The court ruling section must clearly state the appellate trial panel's decisions on matters which had to be settled in the case due to the appearance of appeal or protest, and on the payment of the first-instance court fees and/or appellate court fees.

6. The appellate judgments shall take effect as from the date they are pronounced.

Article 280.- Procedures for appellate revision of decisions of the first-instance courts which are appealed or protested against

1. When reviewing first-instance courts' decisions, which are appealed or protested against, the appellate trial panels shall not be required to open court sessions nor summon the involved parties, except where it is necessary to hear their opinions before making decisions.

2. Procurators of the procuracies of the same level shall participate in the appellate meetings to review the first-instance courts' judgments which are appealed or protested against.

3. One member of the appellate trial panel shall present the summarized contents of the first-instance judgments which are appealed or protested against, the contents of the appeals or the protests and accompanying documents as well as evidences, if any.

4. The procurators state the procuracies' opinions on the resolution of the appeals or protests before the appellate trial panels make decisions.

5. When reviewing the first-instance courts' decisions, which are appealed or protested against, the appellate trial panels shall have the power to:

a) Uphold the first-instance courts' decisions;

b) Amend the first-instance courts' decisions;

c) Abrogate the first-instance courts' decisions and transfer the case files to the first-instance courts for continued resolution of the cases.

6. The appellate decisions shall take effect as from the date they are issued.

Article 281.- Forwarding appellate judgments, decisions

Within fifteen days as from the date the appellate judgments or decisions are issued, the appellate courts must forward the judgments and/or decisions to the courts which conducted the first-instance trials, the procuracies of the same level, the competent civil judgment-executing bodies, the appellants, persons whose rights and obligations are related to the appeals or the protests or their lawful representatives.

In cases where the appeal court of the Supreme People's Court conducts the appellate trials, this time limit may be longer but shall not exceed twenty five days.