Phần thứ ba Bộ luật Tố tụng dân sự 2004: Thủ tục giải quyết vụ án tại Toà án cấp phúc thẩm

Part Three

PROCEDURES FOR RESOLUTION OF CASES AT APPEAL COURTS

Chapter XV

NATURE OF APPELLATE TRIAL AND THE APPEAL OR PROTEST AGAINST JUDGMENTS, DECISIONS OF FIRST-INSTANCE COURTS

Article 242.- Nature of appellate trial

Appellate trial means the re-trial by the immediate superior court of a case with the first-instance court's judgment or decision having not yet taken legal effect and being appealed or protested against.

Article 243.- Persons having the right to appeal

The involved parties or their representatives, agencies or organizations initiating lawsuits shall have the right to lodge their appeals against judgments or decisions of the first-instance courts to suspend or stop the resolution of cases in order to request the immediate superior courts to conduct re-trials according to the appellate procedures.

Article 244.- Application for an appeal

1. An application for an appeal must have the following principal contents:

a) Date on which the application is made;

b) Full name and address of the appellant;

c) The section of judgment or decision of the first-instance court, which has not yet taken legal effect and is appealed.

d) The reason(s) for appealing and the appellant's claims.

e) Signature or fingerprint of the appellant.

2. The appeal application must be filed with the first-instance court which rendered the first-instance-judgment or decision being appealed against; where the appeal application is filed with the appeal court, the appeal court must transfer the application to the first-instance court for carrying out necessary procedures and sending the case file to the appeal court as provided for in Article 255 of this Code.

3. The appeal application must be accompanied with additional documents and/or evidences, if any, to prove that their appeals are well grounded and lawful.

Article 245.- Time limit for an appeal

1. The time limit for an appeal against the first-instance court's judgment is fifteen days as from the date of judgment pronouncement; for the involved parties being absent from the court sessions, the time limit for an appeal shall be counted from the date the judgment is handed to them or publicly posted up.

2. The time limit for an appeal against the first-instance court's decision on suspending or stopping the resolution of the case is seven days counting from the date the person who has the right to appeal receives such decision.

3. In cases where the appeal application is sent by post, the appeal date shall be calculated on the basis of the sending postmark date printed on the envelope.

Article 246.- Examination of appeal applications

1. After receiving the appeal applications, the first-instance courts must examine their validity as provided for in Clause 1, Article 244 of this Code.

2. In case of overdue appeals, the first-instance courts shall request the appellants to further explain the reasons therefor and produce documents and/or evidences, if any, to prove that the reasons for late submission of their appeal applications are plausible.

Where the appeal applications are made not in compliance with the provisions of Clause 1, Article 244 of this Code, the first-instance courts shall request the appellants to amend or supplement them.

Article 247.- Overdue appeals

1. Appeals that are not made within the time limit stipulated in Article 245 of this Code shall be the overdue appeals. After receiving overdue appeal applications, the first-instance courts must forward the applications and the appellants' explanation of the reasons for late filing the appeals, documents and/or evidences, if any, to the appeal courts.

2. Within ten days after receiving the overdue appeals and the accompanying documents and/or evidences, the courts of appeal shall set up a Panel consisting of three judges to consider the overdue appeals. The Panel may issue decisions to accept or not to accept the overdue appeals and clearly state the reasons therefor in such decisions. The appeal courts must send their decisions to the late appellants and the first-instance courts. If the appeal courts accept the overdue appeals, the first-instance courts shall carry out procedures stipulated in this Code and forward the case files to the appeal courts.

Article 248.- Notification of payment of appeal court fee advance

1. After accepting the valid appeal applications the first-instance courts must notify the appellants thereof so that they pay the appeal court fee advances as required by law, if they do not fall cases of being exempt from, or having not to pay, the appeal court fee advances or appeal court fees.

2. Within ten days as from the date of receiving the courts' notifications of payment of the appeal court fee advances, the appellants must pay the court fee advances and submit to the first-instance courts the receipts of the payment of court fee advances. If past this time limit the appellants fail to pay the appeal fee court advances, they shall be deemed to have given up their appeals, unless they have plausible reasons therefor.

Article 249.- Notice of appeal

1. After receiving the valid appeal applications, the first-instance courts must notify such in writing to the procuracies of the same level and the involved parties.

2. Persons who are notified of the appeals shall be entitled to send to the appellate courts documents expressing their opinions on the appealed matters. Such documents shall be included in the case files.

Article 250.- Protest by procuracies

The head of the procuracy of the same level or the immediate superior level shall be entitled to protest against the first-instance court's judgments or decisions to suspend or stop the resolution of the cases in order to request the immediate superior court to directly settle the cases according to the appellate procedures.

Article 251.- Protest decisions of procuracies

1. The procuracies' protest decisions must be made in writing and contain the following principal contents:

a) Issuing date and serial number of the protest decision;

b) Name of the procuracy that issues the protest decision;

c) Protested sections of the first-instance court's judgments or decisions which have not yet taken legal effect.

d) Reason(s) for such protest and the procuracy's claims.

e) Full name of the person signing the protest decision and seal of the procuracy issuing the protest decision.

2. The protest decisions must be immediately sent to the first-instance courts that have rendered the protested judgments or decisions so that such courts shall carry out procedures stipulated by this Code and send the case files to the appeal courts as provided for in Article 255 of this Code

3. Enclosed with the protest decisions shall be additional documents and/or evidences to prove that the procuracies' protests are well grounded and lawful.

Article 252.- Time limit for a protest

1. The time limit for making a protest against the first-instance court's judgment shall be fifteen days for the procuracy of the same level and thirty days for the immediate superior procuracy, counting from the date of judgment pronouncement. In cases where the procurators do not attend the court sessions, the protest time limit shall be counted from the date the procuracy of the same level receives the judgment.

2. The time limit for making a protest against the first-instance court's decision on suspending or stopping the resolution of the case shall be seven days for the procuracy of the same level and ten days for the immediate superior procuracy, counting from the date the procuracy of the same level receives such decision.

Article 253.- Notification of protests

1. The procuracy issuing a protest decision must promptly send the protest decision to the parties relating to the protest.

2. Persons who are notified of the protest shall be entitled to send to the appellate court documents expressing their views on the protested matters. Such documents shall be included in the case files.

Article 254.- Effects of an appeal or a protest

1. The appealed or protested parts of the first-instance judgment or decision shall not be enforced, except where the law requires the immediate enforcement thereof.

2. The first-instance courts' judgments, decisions or parts thereof, which are not appealed or protested against, shall take legal effect as from the date of expiry of the appeal or protest time limit.

Article 255.- Forwarding case files, appeals, protests

The first-instance courts must forward to the appeal courts case files, appeals and/or protests and the accompanying documents, evidences within five working days from the date:

1. The appeal or protest time limit expires if the appellant must not pay the appeal court fee advance;

2. The appellant submits to the first-instance court the receipt of appeal court fee advance payment.

Article 256.- Modifying, supplementing, withdrawing appeals, protests

1. Before the opening of appeal court sessions or at appeal court sessions, the appellants may modify or supplement their appeals and the procuracies issuing protest decisions may modify or supplement their protests provided that the modification or supplementation must not go beyond the scope of the original appeals or protests, if the appeal or protest time limit has expired.

2. Before the opening of appeal court sessions or at appeal court sessions, the appellants may withdraw their appeals and the procuracies issuing protest decisions or the immediate superior procuracy may withdraw their protests.

The appeal courts shall stop the appellate trial of parts of the cases against which the appellants have withdrawn their appeals or the procuracies have withdrawn their protests.

3. The modification, supplementation or withdrawal of appeals or protests before the opening of appeal court sessions must be made in writing and sent to the appellate courts. The appeal courts must promptly notify the involved parties of such modification or withdrawal.

The modification, supplementation or withdrawal of appeals or protests at court sessions must be recorded in the minutes of the court sessions.

Chapter XVI

PREPARATION FOR AN APPELLATE TRIAL

Article 257.- Accepting cases for appellate trial

1. Immediately after receiving case files, appeals, protests and accompanying documents, evidences, the appeal courts shall record them in acceptance books.

2. The chief judge of the appeal court or the chief judge of the appeal court of the Supreme People's Court shall set up the Appellate Trial Panel and assign a judge to act as the presiding judge.

Article 258.- Time limit for appellate trial preparation

1. Within 2 months as from the date of receiving a case, the appeal court shall, depending on each specific case, issue one of the following decisions:

a) To suspend the appellate trial of the case;

b) To stop the appellate trial of the case;

c) To bring the case to appellate trial.

For complicated cases or due to objective obstacles, the chief judge of the appeal court may decide to prolong the trial preparation time limit but for not more than one month.

2. Within one month as from the date of issuance of the decision to bring the case to trial, the court must open an appeal court session; in case of plausible reasons, this time limit shall be two months.

3. Decisions to bring the case to appellate trial must be forwarded to the procuracies of the same level and persons relevant to the appeal or the protest.

Article 259.- Suspension of the appellate trial of cases

The appeal courts shall issue decisions to suspend the appellate trial of cases; the consequences of suspension of the appellate trial of cases and the resumption of appellate trial of cases shall comply with the provisions of Articles 189, 190 and 191 of this Code.

Article 260.- Stoppage of the appellate trail of cases

1. The appeal courts shall issue decisions to stop the appellate trial of cases in the following cases:

a) Cases prescribed at Points a and b of Clause 1 of Article 192 of this Code;

b) The appellants withdraw the entire appeals or the procuracies withdraw the entire protests;

c) Other cases prescribed by law.

2. Where the appeal courts issue decisions to stop the appellate trials of cases under the provisions of Point b, Clause 1 of this Article, the first-instance judgments or decisions shall take legal effect as from the date the appeal courts issue such decisions.

Article 261.- Decisions to apply, change or cancel the provisional emergency measures

During the appellate trials, preparation time limit, the appeal courts may decide to apply, change or cancel provisional emergency measures prescribed in Chapter VIII of this Code.

Article 262.- Forwarding the case files to the procuracies for study

1. After accepting cases for appellate trial, the appeal courts must transfer the case files to the procuracies of the same level for study.

2. The time limit for the procuracies of the same level to study the case files shall be fifteen days as from the date of receiving the case files; upon the expiry of such time limit, the procuracies must return the case files to the courts.

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.