Chương XVIII Bộ luật Tố tụng dân sự 2004: Thủ tục giám đốc thẩm

Chapter XVIII

CASSATION PROCEDURES

Article 282.- Nature of cassation

Cassation means the review of courts' legally effective judgments or decisions, which are protested against as serious law violations in the settlement of cases are detected.

Article 283.- Grounds for protest according to cassation procedures

Legally effective judgments or decisions of courts shall be protested against according to cassation procedures when there is one of the following grounds:

1. Conclusions in the judgments or decisions are incompatible with the objective details of the cases;

2. Serious violations are committed in legal proceedings;

3. Serious errors are made in the application of laws.

Article 284.- Discovering legally effective judgments or decisions which need to be reviewed according to cassation procedures

1. The involved parties, individuals, agencies or other organizations are entitled to discover law violations in legally effective judgments or decisions of courts and notify such in writing to the persons entitled to protest as defined in Article 285 of this Code.

2. Where law violations are discovered in legally effective judgments or decisions of courts, the procuracies and/or the courts must notify such in writing to the persons entitled to protest, defined in Article 285 of this Code.

Article 285.- Persons who are entitled to protest according to cassation procedures

1. The chief judge of the Supreme People's Court and the Chairman of the Supreme People's Procuracy shall be entitled to protest according to cassation procedures against the legally effective judgments or decisions of the courts of all levels, except for cassation decisions of the Council of Judges of the Supreme People's Court.

2. The chief judges of the provincial-level People's Courts and the chairmen of the provincial-level People's Procuracies shall be entitled to protest according to the cassation procedures against legally effective judgments or decisions of district-level People's Courts.

Article 286.- Postponement and suspension of enforcement of legally effective judgments or decisions.

1. Persons who are competent to protest against legally effective judgments or decisions of courts may request the postponement of enforcement of judgments or decisions in order to consider the protests according to cassation procedures. The postponement of enforcement of judgments shall comply with law provisions on civil judgment execution.

2. Persons who have protested according to cassation procedures legally effective judgments or decisions shall have the right to decide on the suspension of enforcement of such judgments or decisions until the cassation decisions are made.

Article 287.- Decisions to protest according to cassation procedures

A decision to protest according to cassation procedures shall consist of the following principal contents:

1. Number and date of the protest decision;

2. Position of the person who makes the protest decision;

3. Number and date of the legally effective judgment or decision being protested against;

4. Rulings of the legally effective judgment or decision being protested against;

5. Comments, analysis of the violations or errors of the legally effective judgment or decision being protested against;

6. Legal grounds for making the protest decision;

7. Decision to protest against parts or whole of the legally effective judgment or decision;

8. Name of the court that is competent to conduct cassation review of such case;

9. Proposals of the protestant.

Article 288.- Time limit for protest according to cassation procedures

Persons who are entitled to protest according to cassation procedures may only make their protests within three years as from the date the court judgments or decisions take legal effect.

Article 289.- Modification, supplementation, withdrawal of protest decisions according to cassation procedures

1. Persons who have protested according to cassation procedures shall be entitled to modify or supplement the protest decisions if the protest time limit prescribed in Article 288 of this Code has not yet expired.

2. Persons who have protested shall be entitled to withdraw parts or whole of the protest decisions before the opening of court sessions or at cassation review court sessions.

Article 290.- Forwarding decisions to protest according to cassation procedures

1. Decisions to protest according to cassation procedures must be immediately sent to the courts that have issued the legally effective judgments or decisions being protested against, the involved parties, the competent civil judgment-executing agencies and persons whose rights and obligations are related to the protested contents.

2. In cases where the Chief Judge of the Supreme People's Court or the chief judges of the provincial-level People's Courts protest, the protest decisions and the case files must be immediately sent to the people's procuracies of the same level. The procuracies shall study the files within 15 days as from the date of receiving the case files; upon the expiry of such time limit, the procuracies must transfer the case files to the courts competent to hear the cases according to cassation procedures.

3. In cases where the Chairman of the Supreme People's Procuracy or the heads of the provincial-level people's procuracies protest, the protest decisions must be immediately sent to the courts competent to hear the cases according to cassation procedures.

Article 291.- Jurisdiction to review cases according to cassation procedures

1. The Committee of Judges of the provincial-level people's courts shall review according to cassation procedures legally effective judgments and decisions of the district-level people's courts, which are protested against.

2. The Civil Court, the Economic Court, the Labor Court of the Supreme People's Court shall review according to cassation procedures legally effective judgments or decisions of the provincial-level people's courts, which are protested against.

3. The Council of Judges of the Supreme People's Court shall review according to cassation procedures legally effective judgments and decisions of appellate courts, the Civil Court, the Economic Court and the Labor Court of the Supreme People's Court, which are protested against.

4. When legally effective judgments, or decisions on the same civil case which fall under the jurisdiction of the courts of different levels as stipulated in Clauses 1 and 2 of this Article are protested against, the competent superior court shall review the whole case according to cassation procedures.

Article 292.- Participants in cassation review court sessions

1. The cassation review court sessions must be participated by the Procuracies of the same level.

2. When deeming it necessary, the courts shall summon proceedings participants and other persons related to the protest to participate in cassation review court sessions.

Article 293.- Time limit for opening of cassation review court sessions

Within four months as from the date of receiving the protests and case files, the courts competent to cassation review must open court sessions to review cases according to cassation procedures.

Article 294.- Preparations for cassation review court session

The court chief judges shall assign a judge to prepare written explanation of the case at the court session. The written explanations summarize the case contents and the judgments, decisions of the courts of different levels as well as the protested contents. The explanation must be forwarded to members of the Cassation Review Councils at least seven days before the opening of the cassation review court sessions.

Article 295.- Proceedings at cassation review court sessions

1. After the presiding judge opens a court session, a member of the Cassation Review Panel shall present the brief contents of the case; the case handling process; rulings of the legally effective court judgments or decisions being protested; grounds for the protest and proposals of the protestant. The representative of the procuracy shall express the opinions of the procuracy on the protest decision.

2. In cases where proceedings participants or other persons are summoned by the courts to participate in the cassation review court sessions, these persons shall be allowed to present their opinions on the protest decision. The representative of the procuracy expresses the opinion of the procuracy on the protest decision.

3. Members of the Cassation Review Panel shall discuss and express their opinions on the resolution of the case. The representative of the procuracy presents the opinions of the procuracy on the resolution of the case.

4. The Cassation Review Panel shall vote on the resolution of the case.

The cassation review decisions of the Committees of Judges of the provincial-level people's courts or the Judges' Council of the Supreme People's Court must be voted for by more than half of the total number of their members.

The Judges' Committee of the provincial-level people's courts or the Judges' Council of the Supreme People's Court shall vote in the order of for and against the protest and other opinions; if the decisions are not voted for by more than half of the total number of members of the Judges' Committee of a provincial-level people's court or the Judges' Council of the Supreme People's Court, the court session must be postponed. Within 30 days as from the date of issuing the decision to postpone the court session, the Judges' Committee or the Judges' Council must re-try the case with the participation of all members.

Article 296.- Scope of the cassation review

1. The Cassation Review Panels shall only review parts of legally effective judgments or decisions being protested against or related to the review of the protested contents.

2. The Cassation Review Panels shall be entitled to review parts of the legally effective judgments or decisions which are neither protested against nor related to the review of the protested contents, if these parts infringe upon the interests of the State, or the interests of the third parties other than the involved parties in the cases.

Article 297.- Jurisdiction of the Cassation Review Panels

The Cassation Review Panels shall have the following rights:

1. To reject the protests and uphold the legally effective judgments or decisions;

2. To uphold the lawful judgments or decisions of the subordinate courts, which have been annulled or amended;

3. To annul legally effective judgments or decisions for re-trials according to the first-instance or appellate procedures;

4. To annul judgments or decisions of the courts which have tried the cases and stop the resolution thereof.

Article 298.- Upholding the subordinate courts' lawful judgments or decisions which have been annulled or amended

The Cassation Review Panels shall issue decisions to annul legally effective judgments or decisions being protested and uphold the judgments or decisions rendered legally by subordinate courts but partially or entirely annulled or amended by legally effective judgment or decisions being protested.

Article 299.- Annulment of the legally effective judgments or decisions, which are protested against, for first-instance re-trial or appellate re-trial.

The Cassation Review Panels shall issue decisions to annul legally effective judgments or decisions being protested against for re-trials according to the first-instance or appellate procedures in the following cases:

1. The proof and collection of evidences have been carried out insufficiently or in contravention of the provisions of Chapter VII of this Code;

2. The conclusions in the judgments or decisions do not conform to the objective details of cases or serious errors are committed in the application of law.

3. The composition of the first-instance or appellate trial panel fails to comply with the provisions of this Code or other serious procedural violations have been committed.

Article 300.- Annulment of legally effective judgments and/or decisions and stopage of case resolution

The Cassation Review Panels shall issue decisions to annul legally effective judgments and/or decisions and stop the case resolution if the cases fall under one of the circumstances stipulated in Article 192 of this Code.

Article 301.- Cassation review decisions

1. The Cassation Review Panels shall issue decisions in the name of the Socialist Republic of Vietnam.

2. A cassation review decision must contain the following principal contents:

a) Date and place of opening the court session;

b) Full names of members of the Cassation Review Panel. In cases where the Cassation Review Panel is the Committee of Judges of a provincial people's courts or the Council of Judges of the Supreme People's Court, the full name and title of the presiding judge and the number of members participating in the hearing shall be specified;

c) Full names of the court clerk and the procurator participating in the court session;

d) Name of the case that has been brought to cassation review trial by the Panel;

e) Full names and addresses of the involved parties in the case;

f) Summary of the contents of the case, rulings of the legally effective judgment or decision being protested against;

g) Decision to protest; grounds for making the protest;

h) Assessment of the Cassation Review Panel analyzing the grounds for accepting or not accepting the protest;

i) Points, clauses or articles of the Civil Procedure Code, on which the Cassation Review Panel bases to make decision;

j) Decision of the Cassation Review Panel.

Article 302.- Effect of the cassation review decisions

The cassation review decisions shall take legal effect as from the date the Cassation Review Panels issue them.

Article 303.- Forwarding the cassation review decisions

Within five working days as from the date of issuance of decisions, the Cassation Review Panels must forward the cassation decisions to:

1. The involved parties and other persons with related interests and obligations under the cassation review decisions;

2. The courts which have rendered legally effective judgments or decisions being protested against;

3. The procuracy of the same level, the competent civil judgment-executing agencies.