Tìm kiếm
Phần thứ hai Bộ luật Tố tụng dân sự 2004: Thủ tục giải quyết vụ án tại Toà án cấp sơ thẩm
| Số hiệu: | 24/2004/QH11 | Loại văn bản: | Luật |
| Nơi ban hành: | Quốc hội | Người ký: | Nguyễn Văn An |
| Ngày ban hành: | 15/06/2004 | Ngày hiệu lực: | 01/01/2005 |
| Ngày công báo: | 16/07/2004 | Số công báo: | Từ số 25 đến số 26 |
| Lĩnh vực: | Thủ tục Tố tụng, Quyền dân sự | Tình trạng: |
Hết hiệu lực
01/07/2016 |
TÓM TẮT VĂN BẢN
Văn bản tiếng việt
Bộ luật Tố tụng dân sự 2004 (Bản Word)
Bộ luật Tố tụng dân sự 2004 (Bản Pdf)
Văn bản tiếng anh
PROCEDURES FOR SETTLING CASES AT FIRST-INSTANCE COURTS
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.
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.
CONCILIATION AND TRIAL PREPARATION
Article 179.- Time limit for trial preparation
1. The time limits for preparation for trial of cases of various types are specified as follows:
a) For the cases prescribed in Articles 25 and 27 of this Code, the time limit shall be four months counting from the date of acceptance of the cases;
b) For the cases prescribed in Articles 29 and 31 of this Code, the time limit shall be two months counting from the date of acceptance of the cases.
For complicated cases, or when due to objective obstacles, the courts' chief judges may decide to extend the trial preparation time limits but for not more than two months for cases prescribed at Point a and one month for cases prescribed at Point b, Clause 1 of this Article.
2. Within the trial preparation time limits prescribed in Clause 1 of this Article, the courts shall, on a case-by-case basis, issue one of the following decisions:
a) To recognize the agreement between the involved parties;
b) To suspend the resolution of the case;
c) To stop the resolution of the case;
d) To bring the case to trial.
3. Within one month as from the date of issuing the decision to bring the case to trial, the court must open a trial session. In case of plausible reasons, this time limit shall be two months.
Article 180.- Principle for conducting conciliation
1. The courts must, during the period of preparation for the first-instance trial of cases, carry out conciliations for the involved parties to reach agreement on the resolution of the cases, except cases which must not be conciliated or cannot be conciliated as stipulated in Articles 181 and 182 of this Code.
2. The conciliation must be conducted on the following principles:
a) Respect for the voluntary agreement of the involved parties, non-use of force or non-threat to use force to compel the involved parties to reach agreements against their will.
b) The contents of agreements between the involved parties must not contravene law and social ethics.
Article 181.- Civil cases which must not be conciliated
1. Claims for compensation for damage caused to State assets.
2. Civil cases arising from transactions which are contrary to law or social ethics.
Article 182.- Civil cases which cannot be conciliated
1. The defendants are intentionally absent though having been duly summoned twice by courts.
2. The involved parties can not take part in the conciliation for plausible reasons.
3. The involved parties being wives or husbands in divorce cases, who have lost their civil act capacity.
Article 183.- Notices on conciliation sessions
Before conducting conciliation sessions, the courts must notify the involved parties or their lawful representatives of the time and venue of the conciliation sessions as well as issues to be conciliated.
Article 184.- Participants in a conciliation session
1. The judge who presides over the conciliation session.
2. The court clerk who records the minutes of the conciliation session.
3. The involved parties or their lawful representatives.
In a case with many involved parties, where one of them is absent from the conciliation meeting, but the present parties agree to proceed with the conciliation and such conciliation shall not affect the rights and obligations of the absent party, the judge shall conduct the conciliation among the present parties. If the involved parties request the postponement of the conciliation meeting so that all involved parties can be present, the judge must postpone the conciliation session.
1. The interpreter, if involved parties do not know Vietnamese.
Article 185.- Conciliation contents
When conducting conciliations, the judges shall brief the involved parties on relevant law provisions on settlement of the cases so that they relate them to their rights and obligations, and analyze the legal consequences of successful conciliation so that they voluntarily reach agreements on the resolution of the cases.
Article 186.- Minutes of conciliation
1. The conciliations shall be recorded by court clerks in minutes. The minutes of conciliation must contain the following principal details:
a) Date on which the conciliation session is held;
b) Venue of the conciliation session;
c) Participants in the conciliation session;
d) Opinions of the involved parties or their lawful representatives;
e) Contents which have been or have not been agreed upon by the involved parties.
2. A minutes of conciliation must be fully affixed with signatures or fingerprints of the parties present at the conciliation session, signature of the court clerk recording the minutes, and signature of the judge presiding the conciliation session.
When the involved parties have reached mutual agreements on issues to be settled in civil cases, the courts must make records of the successful conciliation. Such records must be immediately sent to the parties participating in the conciliation.
Article 187.- Issuing decisions to recognize the agreements of the involved parties
1. Upon the expiry of the seven-day time limit after making the records on successful conciliation, if no parties change their opinions on such agreement, the judge who presides over the conciliation session or another judge who has been assigned by the court's chief judge shall issue a decision recognizing the agreement of the involved parties.
Within five working days after the issuance of the decision to recognize the agreement of the involved parties, the court must send the decision to the involved parties and the procuracy of the same level.
2. The judge shall only issue a decision to recognize the agreement of the involved parties if they have reached an agreement on the resolution of the whole case.
3. In the cases stipulated in Clause 3 of Article 184 of this Code, where the present parties have reached agreement on the settlement of their case, such agreement shall be valid only for the present persons and shall be recognized by the judge in a decision if it does not affect the rights and obligations of the absent parties. In cases where such agreement affects the rights and obligations of the absent parties, it shall be valid and recognized by the judge in a decision only if it is accepted in writing by the parties that are absent from the conciliation session.
Article 188.- Effect of decisions to recognize the involved parties' agreements
1. The decisions to recognize the involved parties' agreements shall take effect immediately after they are issued and neither appealed nor protested against according to the appellate procedures.
2. The decisions to recognize the involved parties' agreements may be protested against according to the cassation procedures only if there are grounds to believe that such agreements were reached as a result of mistakes, deceptions, intimidation or they contravene law or social ethics.
Article 189.- Suspension of the resolution of civil cases
1. The involved parties being individuals have died or being organizations have been merged, divided, separated or dissolved without any individuals, agencies or organizations inheriting their procedural rights and obligations.
2. One involved party being an individual has lost his/her civil act capacity while his/her representative at law has not been determined yet.
3. The legal representative of the involved party terminates without a replacement.
4. The results of resolution of another related case or matter, which, as required by law, must be settled by other agencies or organizations before the cases are resolved, need to be waited for.
5. Other circumstances as prescribed by law.
Article 190.- Consequences of the suspension of resolution of civil cases
1. The court must not delete the names of suspended civil cases from the case acceptance books but only note down the number and date of the decisions to suspend the resolution of such civil cases in the case acceptance books.
2. The court fee advances and court fees paid by the involved parties shall be deposited at the State Treasury and handled when the courts proceed with the resolution of the civil cases.
3. Decisions to suspend the resolution of the civil cases may be appealed or protested against under appellate procedures.
Article 191.- Resuming the resolution of suspended civil cases
The courts shall resume the resolution of suspended civil cases only when the suspension reasons no longer exist.
Article 192.- Stopping the resolution of civil cases
1. After accepting cases which fall within their respective jurisdiction, the courts shall issue decisions to stop the resolution of the civil cases in the following circumstances:
a) The plaintiffs or defendants being individuals have died while their rights and obligations are not inherited;
b) Agencies or organizations have been dissolved or declared bankrupt without any individuals, agencies or organizations inheriting their procedural rights and obligations;
c) The litigators withdraw their lawsuit petitions with the courts' approval or the litigators have no right to initiate lawsuits;
d) Agencies or organizations withdraw their written lawsuits in cases where there are no plaintiffs or where the plaintiffs request not to continue resolving the cases;
e) The involved parties have reached agreements among themselves and do not request the courts to continue resolving the case;
f) The plaintiffs are still absent although they have been duly summoned twice;
g) The courts have issued decisions to open bankruptcy procedures for enterprises or cooperatives being a party to the cases and the resolution of such cases is related to the obligations and property of such enterprises or cooperatives;
h) Other circumstances prescribed by law.
2. The courts shall issue decisions to stop the resolution of civil cases, delete names of such cases from the case acceptance books and return the lawsuit petitions and accompanying documents as well as evidences to the involved parties if the cases fall into one of the circumstances under which the lawsuit petitions must be returned as provided for in Article 168 of this Code.
Article 193.- Consequences of the stoppage of resolution of civil cases
1. When the decisions to stop the resolution of civil cases are issued, the involved parties shall not be entitled to initiate lawsuits to request the courts to re-settle such civil cases if the institution of the subsequent cases does not bring in any difference from the previous cases in terms of the plaintiff, defendant and the disputed legal relations, except for cases prescribed at Points c, e and f of Clause 1, Article 192 of this Code and cases otherwise provided for by law.
2. In cases where the courts issue decisions to stop resolving civil cases as provided for in Clause 1, Article 192 of this Code, the court fee advance money paid by the involved parties shall be confiscated by the State for public fund.
3. In cases where the court issue decisions to stop resolving civil cases as provided for in Clause 2, Article 192 of this Code, the court fee advance money paid by the involved parties shall be refunded to the payers.
4. The decisions to stop resolving civil cases may be appealed or protested against under appellate procedures.
Article 194.- Competence to issue decisions to suspend or stop the resolution of civil cases
1. The judges who are assigned to resolve civil cases shall be competent to issue decisions to suspend or stop the resolution of such civil cases.
2. Within five working days after the issuance of decisions to suspend or stop the resolution of civil cases, the courts must send such decisions to the involved parties and the procuracies of the same level.
Article 195.- Decisions to bring cases to trial
1. A decision to bring a case to trial shall contain the following principal details:
a) Date of issue of the decision;
b) Name of the court issuing that decision;
c) The case to be brought to trial;
d) Names and addresses of the plaintiff, the defendant or other persons who initiate the lawsuit to request the court to settle the case, persons with related rights and obligations;
e) Full names of the judge, people's jurors, court clerk and full names of the alternate judge or people's jurors, if any;
f) Full name of the procurator who takes part in the court session, if any;
g) Time, date and venue of the trial session;
h) Public trial or closed trial;
i) Full names of persons who are summoned to the court session.
2. Decisions to bring the cases to trial must be sent to the involved parties and the procuracies of the same level immediately after the issuance thereof.
Where the procuracies participate in court sessions as provided for in Clause 2, Article 21 of this Code, the courts must send the case files to the procuracies of the same level. Within fifteen days after receiving the dossiers, the procuracies must study then return the files to the courts.
Section 1. GENERAL PROVISIONS ON FIRST-INSTANCE COURT SESSIONS
Article 196.- General requirements for first-instance court sessions
The first-instance court sessions must be conducted on the right times and at the right places inscribed in the decisions to bring the cases to trial or in the notices on reopening the court sessions in cases where the court sessions have been postponed.
Article 197.- Direct, oral and continuous hearing
1. The courts must directly ascertain details and facts of the cases by questioning and listening to the presentations of the plaintiffs, the defendants, persons with related rights and obligations, lawful representatives, defense counsels of the legitimate rights and interests of the involved parties and other participants in the procedures; examine and verify collected documents and evidences; listen to the opinions of the procuracies on the resolution of the cases if the procurators participate in the court sessions. Judgments shall only be rendered on the basis of the results of arguments and inquiries at the court sessions as well as the evidences which have been examined and verified at the court sessions.
2. The hearing shall be conducted orally and continuously, excluding breaks. Members of the Trial Panels shall hear the cases from the beginning to the end, except for the circumstances provided for in Clause 1, Article 198 of this Code.
In special circumstances prescribed by this Code, the hearing may be temporarily ceased for no more than five working days. Upon the expiry of that cessation time limit, the trial shall resume.
Article 198.- Replacement of Trial Panel members in special cases
1. Where judges or people's jurors cannot continue to participate in the trial, the trial may be continued if there are alternate judges or people's jurors if they are present at the court sessions from the beginning.
In cases where a Trial Panel consists of two judges and the presiding judge cannot continue to participate in the trial, the other judge being member of the Trial Panel shall act as the presiding judge of the court session and the alternate judge shall be added to be member of the Trial Panel.
2. In cases where there is no alternate judge or people's juror to replace a member of the Trial Panel, or where the presiding judge of the court session must be replaced while there is no judge for replacement as provided for in Clause 1 of this Article, the case shall be retried from the beginning.
Article 199.- Presence of plaintiffs at court sessions
1. The plaintiffs must be present at court sessions under court subpoena; if they are absent for the first time for plausible reasons, the court sessions must be postponed.
2. If a plaintiff has been duly summoned for the second time but is still absent, he/she/it shall be regarded as having waived his/her/its lawsuit and the court shall issue a decision to stop the resolution of the case. In cases where the court issues a decision to stop the resolution of the case, the plaintiff may initiate a lawsuit again provided that the statute of limitations for such initiation of lawsuit has not yet expired.
Article 200.- Presence of defendants at court sessions
1. The defendants must be present at court sessions under court subpoena; if they are absent for the first time for plausible reasons, the court sessions must be postponed.
2. If a defendant has been duly summoned for the second time but is still absent, the court shall continue to hear the case in his/her absence.
Article 201.- Presence of persons with related rights and obligations
1. Persons with related rights and obligations must be present at court sessions under court subpoena; if they are absent for the first time for plausible reasons, the court sessions must be postponed.
2. If the persons with related rights and obligations have been duly summoned for the second time but are still absent, the courts shall continue to hear the cases in their absence.
3. If the persons with related rights and obligations who make independent claims and have been duly summoned for the second time but are still absent, they shall be regarded as having waived their independent claims, and the courts shall issue decisions to stop the resolution of the cases in respect of the independent claims of the persons with related rights and obligations if the plaintiff and the defendant so agrees. In cases where the courts issue decisions to stop resolving the cases in respect of the independent claims, the persons with related rights and obligations shall be entitled to initiate lawsuits again in respect of their independent claims provided that the statute of limitations for such initiation of lawsuits has not yet expired.
Article 202.- Trial in absence of involved parties from court sessions
The courts shall proceed with the case hearing in the following circumstances:
1. The plaintiff, the defendant or the persons with related interests and obligations, who are absent from court sessions, file their applications to request the courts to conduct the trial in their absence;
2. The plaintiff, the defendant or the persons with related interests and obligations, who are absent from court sessions, have their lawful representatives to attend the court sessions;
3. The cases prescribed in Clause 2, Article 200 and Clause 2, Article 201 of this Code.
Article 203.- Presence of defense counsels of legitimate rights and interests of the involved parties
The defense counsels of legitimate rights and interests of the involved parties must attend court sessions under court subpoena. If they are absent for the first time for plausible reasons, the court sessions must be postponed. If the persons defending legitimate rights and interests of the involved parties are still absent after being summoned for the second time, the courts shall proceed with the case hearing. In this case, the involved parties shall themselves defend their legitimate rights and interests.
Article 204.- Presence of witnesses
1. Witnesses shall be obliged to attend court sessions under court subpoena to clarify details of the cases. Where the witnesses are absent but have earlier given their testimonies in person or sent their testimonies to courts, the judges presiding over the court sessions shall make public such testimonies.
2. Where witnesses are absent, the Trial Panels may decide to postpone the court sessions or keep hearing the cases. Where the witnesses are absent from the court sessions without plausible reasons and their absence hinders the trial, they may be escorted to court sessions under decisions of the Trial Panels.
Article 205.- Presence of expert-witnesses
1. Expert-witnesses shall be obliged to attend court sessions under court subpoena to clarify issues relating to the expertise and expertising conclusions.
2. Where the expert-witnesses are absent, the Trial Panels shall decide to postpone the court sessions or keep hearing the cases.
Article 206.- Presence of interpreters
1. Interpreters shall be obliged to attend the court sessions under court subpoena.
2. Where the interpreters are absent without substitutes, the Trial Panels shall decide to postpone the court sessions, except for cases where the involved parties keep requesting to continue the trial.
Article 207.- Presence of procurators
1. The procurators assigned by the heads of the procuracies of the same level shall have the duty, to attend the court sessions.
2. Where the procurators are replaced at court sessions or cannot continue to participate in the trial sessions and the alternate procurators are available, the latter may attend the court sessions for continued trial of the cases if they are present at the court session from the beginning.
In cases where alternate procurators are not available for replacement, the Trial Panels shall decide to postpone the court sessions and promptly notify the heads of the procuracies of the same level thereof.
Article 208.- Time limit for postponing a court session and decision to postpone a court session
1. In cases where the trial panel decides to postpone the court session according to the provisions of Clause 2 of Article 51, Clause 2 of Article 72 and Articles 199, 200, 201, 203, 204, 205, 206, 207 and 215, and Clause 4 of Article 230, of this Code, the time limit for postponement of a first-instance court session shall not exceed thirty days after the issue of the decision to postpone the court session.
2. A decision to postpone a court session must contain the following principal details:
a) Date of its issuance;
b) Name of the court and full names of persons conducting the procedures;
c) The case to be brought to trial;
d) Reasons for the postponement of the court session;
f) Time and venue for re-opening of the court session.
3. The decisions to postpone the court sessions must be signed by the judges presiding over the court sessions on behalf of the trial panels and be publicly notified to procedure participants. For absent persons, the courts shall immediately send the decisions to them and concurrently to the procuracies of the same level.
4. In cases where the courts cannot re-open the court sessions on the right time and at the right places inscribed in the decisions to postpone the courts sessions, the courts must immediately notify the procuracies of the same level and procedure participants of the time and venues for re-opening the court sessions.
Article 209.- Internal rules of court sessions
1. People aged under16 years shall not be allowed to enter the court rooms, except where they are summoned by courts to attend the court sessions.
All people present in the court room must stand up as the Trial Panel enters the court room, respect the Trial Panel, maintain order and strictly follow the instructions of the presiding judge of the court session.
Only those persons who are permitted by the trial panel can raise questions, reply or give statement. The persons who question, reply or give statement must stand up, except where they are permitted by the presiding judges of the court sessions to sit while making questions, replies or statements for health reasons.
2. The Chairman of the Supreme People's Court shall base him/herself on the provisions of Clause 1 of this Article to issue the internal rules of court sessions.
Article 210.- Procedures for rendering court judgments or decisions at court sessions
1. Judgments must be discussed and adopted by the Trial Panels in the deliberation rooms.
2. Decisions to replace the procedure-conducting persons, expert-witnesses, interpreters, to transfer the cases, to suspend or stop the resolution of cases, or to postpone court sessions must be discussed and adopted at the deliberation rooms and made in writing.
3. Decisions on other matters shall be discussed and adopted by the Trial Panels at the court rooms and need not to be made in writing but must be recorded in the minutes of the court sessions.
Article 211.- Minutes of court sessions
1. Minutes of a court session must be fully inscribed with the following details:
a) Main contents of the decision to bring the case to trial as stipulated in Clause 1 of Article 195 of this Code;
b) All developments at the court session from the beginning to the end;
c) Questions, answers and statements given at the court session.
2. Apart from recording the minutes of court sessions, the audio-recording and/or video-recording of the developments of the court session can be made only when it is consented by the Trial Panels.
3. At the end of a court session, the presiding judge of the court session must examine the minutes and co-sign on the minutes with the court clerk.
4. The procurator and procedure participants shall be entitled to read the minutes of the court session immediately after the end of the court session and request the inclusion of amendments or additions into the minutes and sign for certification.
Article 212.- Preparing for the opening of a court session
Before the opening of a court session, the court clerk must perform the following jobs:
1. Briefing on the internal rules of the court session;
2. Examining and identifying the absence or presence of the persons participating in the court sessions under the court's subpoenas or notices; if any person is absent, the reasons therefor must be clarified;
3. Maintaining order in the court room;
4. Requesting all people present in the court room to stand up when the Trial Panel enters the court room.
Section 2. PROCEDURES FOR COMMENCING A COURT SESSION
Article 213.- Opening a court session
1. The presiding judge of the court session shall open the court session and read out the decision to bring the case to trial.
2. The court clerk shall then report to the Trial Panel on the presence and absence of the persons participating in the court session under the court's subpoenas or notices and the reasons for their absence.
3. The presiding judge shall cross-check the presence of the participants in the court session under the court's subpoenas or notices and examine identities of the involved parties.
4. The presiding judge shall explain the rights and obligations of the involved parties and other procedure participants.
5. The presiding judge shall introduce full names of the procedure-conducting persons, expert-witnesses, interpreters.
6. The presiding judge shall ask persons who are entitled to request the replacement of procedure conductors, expert-witnesses or interpreters to see if they wish to replace anyone.
Article 214.- Handling requests for replacement of procedure conductors, expert-witnesses and/or interpreters
In cases where certain persons request the replacement of procedure conductors, expert-witnesses and/or interpreters, the trial panels must consider and decide in accordance with procedures stipulated in this Code and may accept or not accept such request. In case of non-acceptance, the reasons therefor must be clearly stated.
Article 215.- Considering and deciding on the postponement of court sessions upon someone's absence
When any procedure participants are absent from court sessions and they do not fall into the cases where the courts must postpone the court sessions, the presiding judges must ask to see if there is any one requesting the postponement of the court sessions or not. If there is, the Trial Panels shall consider and decide thereon according to the procedures stipulated in this Code and may accept or not accept such request. In case of non-acceptance, the reasons therefor must be clearly stated.
Article 216.- Securing the objectivity of witnesses
1. Before witnesses are asked about matters they know, which are related to the resolution of the cases, the presiding judges may decide to take necessary measures so that witnesses cannot hear each other's testimonies nor contact the relevant persons.
2. In cases where the testimonies of the involved parties and the witnesses are interrelated, the presiding judges may decide to isolate the involved parties from the witnesses before the witnesses are questioned.
Section 3. PROCEDURES FOR INQUIRIES AT COURT SESSIONS
Article 217.- Inquiring the involved parties about change, supplementation or withdrawal of their claims
The inquiring process shall start with the presiding judge's inquiry of the involved parties about the following issues:
1. Inquiring the plaintiffs to see whether or not they wish to change, supplement or withdraw part or whole of their lawsuit petitions;
2. Inquiring the defendants to see whether or not they wish to change, supplement or withdraw part or whole of their counter-claims;
3. Inquiring the persons with related rights and obligations who make independent claims to see whether or not they wish to change, supplement or withdraw part or whole of their independent claims.
Article 218.- Considering the change, supplementation or withdrawal of claims
1. The trial panels shall accept the change and/or supplementation of the involved parties' claims, if such change or supplementation does not fall beyond the scope of their original lawsuits, counter-claims or independent claims.
2. Where an involved party voluntarily withdraws part or whole of his/her claim, the Trial Panel may accept such request and stop the trial regarding the withdrawn part or whole of the claim.
Article 219.- Changing the procedural status
1. Where the plaintiff withdraws the entire lawsuit claim, but the defendant still maintains his/her counterclaims, the defendant shall become the plaintiff and the plaintiff shall become the dependant.
2. Where the plaintiff withdraws the entire lawsuit claim and the defendant withdraws the entire counterclaims, but persons with related rights and obligations still maintain their independent claims, the persons with related rights and obligations shall become plaintiffs while the persons who are obliged under the independent claims shall become defendants.
Article 220.- Recognizing the agreements of involved parties
1. The presiding judge shall ask whether the involved parties can reach mutual agreement on the resolution of the cases or not. In cases where they reach agreements on the resolution of the cases and their agreements are voluntary, not contrary to law or social ethics, the trial panels shall issue decisions to recognize their agreements on the resolution of the cases.
2. The court decisions recognizing the involved parties' agreements on the resolution of the cases shall take legal effect.
Article 221.- Listening to the involved parties' presentations
1. In cases where certain involved parties still maintain their claims and cannot reach agreements on the resolution of the cases, the Trial Panels shall commence the hearing the cases by listening to presentations of the involved parties in the following order:
a) The defense counsels of the plaintiff's legitimate rights and interests shall present the plaintiff's claims and evidences to prove that their claims are well-grounded and lawful. The plaintiff shall be entitled to give additional opinions.
In cases where agencies or organization institute the cases, their representatives shall present the lawsuit claims and evidences to prove that their lawsuit claims are well-grounded and lawful.
b) The defense counsels of the defendant's legitimate rights and interests shall present the defendant's opinions on the plaintiff's claims; the defendant's counter-claims and proposals as well as evidences to prove that such proposals are well grounded and lawful. The defendant shall be entitled to give additional opinions.
c) The defense counsels of the legitimate rights and interests of persons with related rights and obligations shall present the latter's opinions on the claims and proposals of the plaintiff and the defendant; independent claims and proposals of the persons with related rights and obligations as well as evidences to prove that such proposals are well grounded and lawful. The persons with related rights and obligations shall be entitled to give additional opinions.
2. In cases where the plaintiff, the defendant or the persons with related rights and obligations have no defense counsels of their legitimate rights and interests, they shall present by themselves their claims and proposals as well as evidences to prove that such claims and proposals are well grounded and lawful.
3. At the court sessions, the involved parties and defense counsels of their legitimate rights and interest are entitled to supplement evidences to prove their respective claims and proposals.
Article 222.- Sequence of inquiry at court sessions
After listening to presentations by the involved parties, the inquiry of each person about each matter shall be carried out in the order that the presiding judge shall inquire first, then the people's jurors; the defense counsels of legitimate rights and interests of the involved parties; then the involved parties, and other procedure participants. Where procurators participate in count sessions, their inquiries shall follow the involved parties' inquiries.
Article 223.- Inquiring plaintiffs
1. In cases where there are more than one plaintiff, they shall be inquired and separately one by one.
2. The plaintiffs shall be inquired only about matters presented by themselves or by the defense counsels of their legitimate rights and interests which are unclear, inconsistent or contradictory to their previous testimonies, or contradictory to the presentations of the defendant, the persons with related rights and obligations and/or the defense counsels of their legitimate rights and interests.
3. Plaintiffs may themselves reply or the defense counsels of their legitimate rights and interests may reply on their behalf, then the plaintiffs may give additional answers.
Article 224.- Inquiring defendants
1. In cases where there are more than one defendant, each defendant shall be inquired separately.
2. The defendants shall only be inquired about matters which have been unclearly presented by themselves or the defense counsels of their legitimate rights and interests or have been inconsistent or contradictory to their previous testimonies, or contradictory to the claims of the plaintiffs or the persons with related rights and obligations and/or the defense counsels of their legitimate right and interests.
3. Defendants may answer questions by themselves or the defense counsels of their legitimate rights and interests answer on their behalf before the defendants give additional answers.
Article 225.- Inquiring persons with related rights and obligations
1. In cases where there are more than one person with related rights and obligations, each of them shall be inquired separately.
2. The persons with related rights and obligations shall only be inquired about matters which have been unclearly presented by themselves or by the defense counsels of their legitimate rights and interests or have been inconsistent or contradictory to their previous testimonies or contradictory to the claims of the plaintiffs or proposals of the defendants or the defense counsels of legitimate rights and interests of these persons.
3. Persons with related rights and obligations may answer questions by themselves or the defense counsels of their legitimate rights and interests answer on their behalf before they give additional answers.
Article 226.- Inquiring witnesses
1. In cases where there are more than one witness, each of them shall be inquired separately.
2. Before questioning witnesses, the presiding judges shall ask clearly about the relations between them and parties involved in the cases; if witnesses are minors, the presiding judges may request their parents, guardians or teachers to help in the inquiries.
3. The presiding judges shall request the witnesses to present details of the cases which they know. After the witnesses complete their presentations, they may only be further questioned about points which they have presented unclearly, incompletely or inconsistently or which have been contradictory to their previous testimonies, contradictory to the presentations of the involved parties and/or the defense counsels of the involved parties' legitimate rights and interests.
4. After completing their presentations, the witnesses shall stay in the court rooms so that they may be further questioned.
5. In cases where it is necessary to secure the safety of the witnesses or their relatives, the Trial Panels may decide not to disclose information on their personal identities and must keep them from being seen by attendants to the court sessions.
Article 227.- Disclosing case documents
1. The Trial Panels shall make public case documents in the following cases:
a) Procedure participants are absent from court sessions but have given their testimonies during hearing preparation;
b) Testimonies given at court sessions by procedure participants are contradictory to their previous testimonies;
c) In other cases where the Trial Panels deem it necessary or where the procurators or procedure participants so request.
2. In special cases where it is necessary to keep State secrets, to preserve the nation's fine customs and practices, to keep professional secrets, business secrets or private secrets at the requests of the involved parties, the trial panels shall not disclose documents included in the case files.
Article 228.- Hearing audio-tapes and/or discs, watching video tapes and/or discs
At the request of the procurators or the procedure participants or when deeming it necessary, the Trail Panels may arrange for the audio tapes and/or discs to be heard, and/or video tapes and/or discs to be screened at court sessions, except for the cases stipulated in Clause 2 of Article 227 of this Code.
Article 229.- Examining exhibits
Exhibits, photos or records certifying exhibits may be presented for examination at court sessions.
When necessary, the Trial Panels may go together with the involved parties for on-site examination of exhibits which can not be brought to court sessions.
Article 230.- Inquiring expert-witnesses
1. The presiding judges shall request the expert-witnesses to present their conclusions on matters they have been assigned to expertise. During their presentations, the expert-witnesses may give additional explanations on the expertising conclusions and the grounds to make such conclusions.
2. Procurators and procedure participants present at court sessions shall be entitled to give comments on the expertising conclusions, to ask about matters which are unclear or contradictory in the expertising conclusions or contradictory to other details of the cases.
3. In cases where the expert-witnesses are absent from court sessions, the presiding judges shall publicize the expertising conclusions.
4. If any procedure participants disagree with the expertising conclusions publicized at court sessions and request the expert-witnesses to make additional expertise or re-expertise, if deeming that the additional expertise or the re-expertise is necessary for the settlement of the cases the Trial Panels shall decide on the additional expertise or re-expertise; in this case, the Trial Panels shall decide to postpone the court sessions.
Article 231.- Concluding the inquiries at court sessions
When deeming that the case details have been fully examined, the presiding judges shall ask the procurators, the involved parties, the defense counsels of the legitimate rights and interests of the involved parties and other procedure participants whether they request to ask about any matters or not; in cases where someone has such request and he/she deems that such request is well grounded, the presiding judges shall decide to continue the inquiries.
Section 4. ARGUMENT AT COURT SESSIONS
Article 232.- Order for making arguments
1. At the end of the inquiring process, the Trial Panels shall move on to the arguments at court sessions. The order for making arguments shall be as follows:
a) The defense counsels of the plaintiffs' legitimate rights and interests shall make their presentations. The plaintiffs may make additional comments. In cases where agencies or organizations initiate lawsuits, the representatives of such agencies or organizations shall present their opinions. The persons having their rights and interests protected may give additional comments;
b) Defense counsels of the defendants' legitimate rights and interests shall make their presentations. The defendants may make additional comments;
c) Defense counsels of the legitimate rights and interests of persons with related rights and obligations shall make presentations. Persons with related rights and obligations may make additional comments.
2. In cases where the plaintiffs, the defendants or persons with related rights and obligations have no one to defend their legitimate rights and interests, they shall themselves make presentations during the arguments.
Article 233.- Presentations during arguments and responses
When making presentations on the assessment of evidences or expressing their views on the resolution of cases, persons participating in the arguments must base themselves on documents and evidences that have been collected, examined and verified at court sessions as well as results of the inquiring process at court sessions. They may respond to the opinions of others. The presiding judges must not limit the argument time but create conditions for persons participating in the arguments to fully express their opinions, but may interrupt ideas irrelevant to the cases.
Article 234.- Presentations of procurators
In cases where procurators attend court sessions, after the procedure participants present their arguments and responses, the presiding judges shall ask the procurators to express the procuracies' views on the resolution of the cases.
Article 235.- Resuming inquiries
Through arguments, if deeming that details of the cases have not been considered, or have been considered insufficiently, or it is necessary to additionally examine evidences, the trial panels shall decide to resume the inquiring process. Once the inquiries end, the arguments must continue.
Section 5. DELIBERATION AND PRONOUNCEMENT OF JUDGMENTS
1. At the end of arguments, the trial panels enter the deliberation rooms to deliberate the cases.
2. Only members of the trial panels can participate in the deliberation. During the deliberation, the trial panel members must resolve all matters of the cases by way of majority voting on matter by matter. The people's jurors shall vote first while the judges shall vote last. The minority may express their opinions in writing which shall be recorded in the case files.
3. Deliberation must be based only on documents and evidences which have been examined considered at court sessions, results of inquiries at court sessions and the full consideration of opinions of procedure participants and procurators.
4. Deliberation must be recorded in minutes specifying all opinions discussed and decisions of the trial panels. The deliberation records must be signed at the deliberation rooms by all members of the trail panels before the judgments are pronounced.
5. Where the cases involve many complicated circumstances and the deliberation requires a longer time, the trial panels may decide on the deliberation time limit which, however, shall not exceed five working days after the end of arguments at court sessions.
The trial panels must inform all persons present at court sessions and the absent procedure participants of the hours, date and place where the judgments shall be pronounced; if the trial pPanels have made the notification while some proceeding participants are absent, the trial panels shall still proceed with the pronouncement of judgments as provided for in Article 239 of this Code.
Article 237.- Resumption of inquiries and arguments
Through deliberation, if deeming that details of the cases have not been considered, the inquiries have yet been sufficient or evidences should be further examined, the trial panels may decide to resume the inquiries and arguments.
Article 238.- First-instance judgments
1. Courts shall render judgments in the name of the Socialist Republic of Vietnam.
2. A judgment shall contain an introduction, contents of the case and assessment of the court, and the court's decision.
3. The introduction section of the judgment must clearly state the name of the first-instance court; the serial 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, the court clerk, the procurators, expert-witnesses and interpreter (if any); full names and addresses of the plaintiff, defendant, persons with related rights and obligations; agencies or organizations initiating the lawsuit; the lawful representatives, the defense counsels of the legitimate rights and interests of the involved parties; subject matter of the dispute; the serial number and date of the decision to bring the case to public trial or closed trial; time and place of trial.
4. The section of the judgment contents and court assessment must state the lawsuit claims of the plaintiff; the lawsuit of the agency or organization, the defendant's counter-claim; independent claims of persons with related rights and obligations; assessment of the court; points, clauses and articles of the legal documents which the court used as grounds for the resolution of the case.
The court assessments must analyze grounds for acceptance or non-acceptance of the claims, proposals of the involved parties, the defense counsels of the legitimate rights and interests of the involved parties.
5. The court ruling section must clearly state the court decisions on each issue to be resolved in the case, on court fees and right to appeal against the judgment; in cases where there are decisions which must be executed immediately, such decisions must be clearly stated.
Article 239.- Pronouncing judgments
Upon pronouncement of a judgment, all people in the court room must rise up, except for special cases permitted by the presiding judge. The presiding judge or another member of the trial panel reads out the judgment and may, after reading the full text of the judgment, give further explanation of the judgment execution and the right to appeal.
In cases where any involved parties do not know Vietnamese, the interpreter must interprete the judgment in full into the language they know.
Article 240.- Amendment or supplementation of judgments
1. A judgment, once pronounced must not be amended or supplemented, except where obvious mistakes in spelling, in data due to confusion or miscalculation are detected. The amendment or supplementation must be immediately notified to persons having rights and/or obligations related thereto; and at the time to agencies, organizations initiating the lawsuits and procuracies of the same level
2. The judgment amendment or supplementation stipulated in Clause 1 of this Article must be made by judges in coordination with the people's jurors being members of the trial panel. In cases where such judges no longer hold the judge's position, the courts' chief judges shall make such amendment or supplementation.
Article 241.- Supplying judgment extracts and judgments
1. Within three working days after the end of a court session, the involved parties, agencies or organizations initiating the lawsuits shall be supplied with judgment extracts by the court.
2. Within ten days as from the date of judgment pronouncement, the court shall hand over or send the judgment to the involved parties, agencies or organizations initiating the lawsuit and the procuracy of the same level.
Cập nhật
Bài viết liên quan
Quy định pháp luật về giải quyết khiếu nại lần đầu trong Tố tụng Dân sự
