Phần thứ chín Bộ luật Tố tụng dân sự 2004: Thủ tục giải quyết các vụ việc dân sự có yếu tố nước ngoài và tương trợ tư pháp trong tố tụng dân sự

Part Nine

PROCEDURES FOR RESOLVING CIVIL CASES AND MATTERS INVOLVING FOREIGN ELEMENTS AND JUDICAL ASSISTANCE IN CIVIL PROCEDURES

Chapter XXXIV

GENERAL PROVISIONS ON PROCEDURES FOR RESOLUTION OF CIVIL CASES AND MATTERS INVOLVING FOREIGN ELEMENTS

Article 405.- Application principles

1. The courts shall apply the provisions of Chapter XXXIV and Chapter XXXV of this Code to settle civil cases and matters involving foreign elements. In cases where these chapters do not contain such provisions, they are entitled to apply other relevant provisions of this Code.

2. A civil case or matter involving foreign elements means a civil case or matter where at least one of the involved parties is a foreigner or an overseas Vietnamese; or civil relations between the involved parties being Vietnamese citizens, agencies or organizations but the bases for establishing, changing or terminating such relations comply with foreign laws, have arisen overseas or assets involved in such relations are located overseas.

Article 406.- Procedural rights and obligations of foreign individuals, agencies, organizations

1. Foreign citizens, stateless people, foreign agencies and organizations, international organizations (hereinafter referred collectively to as foreign individuals, agencies and organizations) are entitled to initiate lawsuits at Vietnamese courts in order to request the protection of their legitimate rights and interests when such rights and interests are infringed upon or disputed.

2. Foreign individuals, agencies and organizations, when participating in civil procedures, shall have the same procedural rights and obligations like Vietnamese citizens, agencies and organizations.

3. The Vietnamese State may apply the principle of reciprocity to restrict the corresponding procedural rights of foreign nationals, agencies or organizations of the countries where their courts restrict certain civil procedural rights of Vietnamese citizens, agencies or organizations.

Article 407.- Civil procedure-legal capacity and civil procedural act capacity of foreign citizens and stateless people

1. The civil procedure-legal capacity and civil procedural act capacity of foreign citizens or stateless people shall be determined as follows:

a) Pursuant to the laws of the countries of which the citizens bear the nationality; pursuant to Vietnamese law if citizens bear the Vietnamese nationality and a foreign nationality; pursuant to the laws of the countries where the citizens reside, if they each bears several foreign nationalities, except otherwise provided for by Vietnamese law;

b) Pursuant to Vietnamese law if the citizens permanently reside, work or live in Vietnam;

c) Pursuant to the laws of the countries where the stateless people permanently reside, work or live;

d) Pursuant to Vietnamese law if the civil procedural acts are performed in the Vietnamese territory.

2. Foreign citizens or stateless people can be recognized as having civil procedural act capacity in the Vietnamese territory, if they have no civil procedural act capacity under foreign laws but have the civil procedural act capacity under Vietnamese law.

Article 408.- Civil procedure-legal capacity of foreign agencies and organizations, and international organizations in civil procedures

1. The civil procedure-legal capacity of foreign agencies and organizations is determined under the law of the countries where such agencies or organizations were established, except otherwise stipulated by Vietnamese law.

2. The civil procedure-legal capacity of international organizations is determined on the basis of the international treaties serving as basis for the establishment of such organizations, their operational regulations, or the international treaties signed by competent Vietnamese agencies.

Article 409.- Protection of legitimate rights and interests of involved parties being foreign individuals, agencies or organizations

Involved parties being foreign individuals, agencies or organizations participating in procedures at Vietnamese courts are entitled to request lawyers to protect their legitimate rights and interests according to the provisions of Vietnamese law.

Chapter XXXV

JURISDICTION OF VIETNAMESE COURTS TO SETTLE CIVIL CASES AND/OR MATTERS INVOLVING FOREIGN ELEMENTS

Article 410.- General provisions on the Vietnamese courts’ jurisdiction to resolve civil cases and/or matters involving foreign elements

1. The Vietnamese courts’ jurisdiction to resolve civil cases and/or matters involving foreign elements shall be determined under the provisions of Chapter III of this Code, except where this Chapter contains different provisions.

2. Vietnamese courts shall settle civil cases and/or matters involving foreign elements in the following cases:

a) The defendant is a foreign agency or organization, which is headquartered in Vietnam or the defendant has a managing agency, branch or representative office in Vietnam;

b) The defendant is a foreign national or stateless person who permanently resides, works or lives in Vietnam or has assets in the Vietnamese territory;

c) The plaintiff is a foreign national or stateless person who permanently resides, works or lives in Vietnam, for civil cases or matters claiming alimonies or parent identification;

d) Civil cases or matters related to civil relations which are established, changed or terminated on the grounds prescribed by Vietnamese law, or which happen in the Vietnamese territory but involve at least one party being foreign individual, agency or organization.

e) Civil cases or matters related to civil relations which are established, changed or terminated on the grounds prescribed by foreign laws or which happen in foreign countries, but involve all parties being Vietnamese citizens, agencies or organizations and either the plaintiff or the defendant resides in Vietnam;

f) The disputes arise out of a contract with the partial or full performance thereof taking place in the Vietnamese territory;

g) The divorce cases with the plaintiffs or the defendants being Vietnamese citizens.

Article 411.- Exclusive jurisdiction of Vietnamese courts

1. The following civil cases involving foreign elements shall fall under the exclusive jurisdiction of Vietnamese courts:

a) Civil cases involving rights to properties being immoveables in the Vietnamese territory;

b) Disputes arising out of transportation contracts where the carriers have their head-offices or branches in Vietnam;

c) The divorce case between a Vietnamese citizen and a foreign citizen or a stateless person if both spouses reside, work or live in Vietnam;

2. The following civil matters involving foreign elements shall fall under the exclusive jurisdiction of Vietnamese courts:

a) Determining a legal event, if this event occurs in the Vietnamese territory;

b) Declaring that a foreign national or a stateless person has lost his/her civil act capacity or has had restricted civil act capacity if he/she resides, works or lives in Vietnam and such declaration relates to the establishment of his/her rights and obligations in Vietnam;

c) Declaring that a foreign national or a stateless person is missing or dead, if he/she is present in Vietnam at the time of occurrence of events which constitute grounds for declaring a person missing or dead, and such declaration relates to the establishment of his/her rights and obligations in Vietnam;

d) Requesting by a foreigner a Vietnamese court to declare that a Vietnamese citizen is missing or dead if such a declaration relates to the establishment of rights and obligations of that foreigner in Vietnam;

e) Recognizing that an asset in the Vietnamese territory is derelict or recognizing the current manager’s ownership over derelict immovables in the Vietnamese territory.

Article 412.- Not changing the jurisdiction of courts

Civil cases or matters which have been accepted for settlement by Vietnamese courts under this Code’s provisions on jurisdiction must be continually settled by such courts even though during the resolution process there appear changes of nationalities, residential places or addresses of involved parties or appear new details which make such civil cases or matters fall under the jurisdiction of other Vietnamese courts or foreign courts.

Article 413.- Returning the lawsuit petitions or petitions or stopping the resolution of civil cases or matters if they have been settled by foreign courts

1. Vietnamese courts shall return lawsuit petitions, applications or stop the resolution of civil cases or matters involving foreign elements if foreign courts have already issued judgments or decisions on the resolution thereof and the countries of such foreign courts and Vietnam have signed or acceded to international treaties that provide for the recognition and enforcement of civil judgments or decisions.

2. Vietnamese courts shall return the lawsuit petitions, petitions or stop the resolution of civil cases or matters involving foreign elements if foreign courts have already accepted such civil cases or matters and the foreign courts’ judgments or decisions on such civil cases or matters are recognized and enforced in Vietnam.

Chapter XXXVI

JUDICIAL ASSISTANCE IN CIVIL PROCEDURES

Article 414.- Principles for judicial assistance in civil procedures

1. Judicial assistance in civil procedures between Vietnamese courts and foreign courts shall be effected on the principle of respect for each other’s national independence, sovereignty and territorial integrity, non-interference in each other’s internal affairs, equality and mutual benefits and in compliance with the international treaties which the Socialist Republic of Vietnam has signed or acceded to and with Vietnamese laws.

2. In cases where the Socialist Republic Vietnam and foreign countries have not yet signed or acceded to international treaties prescribing the juridical assistance in civil procedures, the judicial assistance in civil precedures may be accepted by Vietnamese courts on the principle of reciprocality but must not be contrary to Vietnamese laws, international laws and practices.

Article 415.- Judicial entrustment

1. Vietnamese courts may judicially entrust foreign courts or be judicially entrusted by foreign courts to conduct a number of civil-proceeding activities under the provisions of international treaties which Vietnam has signed or acceded to or on the principle of reciprocality.

2. Vietnamese courts shall decline judicial entrustment from foreign courts in the following cases:

a) The exercise of judicial entrustment infringes upon the sovereignty of Vietnam or threatens the security of Vietnam;

b) The exercise of judicial entrustment does not fall within the jurisdiction of Vietnamese courts.

Article 416.- Formalities for judicial entrustment

1. The judicial entrustment by Vietnamese courts to foreign courts or by foreign courts to Vietnamese courts must be made in written documents, which shall be sent to competent Vietnamese agencies under the provisions of the international treaties which Vietnam has signed or acceded to or the provisions of Vietnamese law.

2. After receiving the judicial entrustment documents, the competent Vietnamese agencies must immediately send them to the Vietnamese courts or to the foreign agencies competent to receive the entrustment documents of Vietnamese courts.

Article 417.- Judicial entrustment documents

1. A judicial entrustment document must contain the following principal details:

a) The date on which the document is made;

b) Name and address of the entrusting court;

c) Name and address of the entrusted court;

d) Full name and address of the individual, agency or organization related to the judicial entrustment;

e) Contents of the entrustment;

f) Requests of the entrusting court.

2. Judicial entrustment documents must be accompanied by papers and/or documents necessary for the realization of the entrustment, if any.

Article 418.- Recognizing papers or documents made, issued or certified by foreign competent agencies

1. Vietnamese courts shall recognize papers and documents made, issued, or certified by foreign competent agencies in accordance with foreign laws or outside the Vietnamese territory if such papers or documents have been consularly legalized except otherwise provided for by international treaties which Vietnam has signed or acceded to.

2. Papers and documents made in foreign languages must be accompanied by their Vietnamese versions lawfully notarized or authenticated when being sent to Vietnamese courts.