Phần thứ năm Bộ luật Tố tụng dân sự 2004: Thủ tục giải quyết việc dân sự

Part Five

PROCEDURES FOR RESOLUTION OF CIVIL MATTERS

Chapter XX

GENERAL PROVISIONS ON PROCEDURES FOR RESOLUTION OF CIVIL MATTERS

Article 311.- Scope of application

The courts shall apply the provisions of this Chapter and other provisions of this Code, which are not contrary to the provisions of this Chapter, to resolve civil matters prescribed in Clauses 1, 2, 3, 4 and 6 of Article 26 and Clauses 1, 2, 3, 4, 5 and 7 of Article 28, Clauses 1 and 4 of Article 30, Clause 3 of Article 32 of this Code.

Civil matters mean a situation where individuals or organizations have no disputes but request courts to recognize or not to recognize a legal event which serves as a basis for the rise of civil, marriage and family, business, commercial or labor rights and obligations of their own or of other individuals, agencies or organizations, or request courts to recognize their civil, marriage and family, business, commercial or labor rights.

Article 312.- Petitions for the court resolution of civil matters

1. Persons requesting courts to resolve civil matters must file their petitions with competent courts defined in Section 2 of Chapter III of this Code.

2. A petition shall contain the following principal contents:

a) Date of making the petition;

b) Name of the court that is competent to handle the petition;

c) Full name and address of the petitioner;

d) Specific issues requested to be resolved by the court; reasons, purposes and bases of the request for a court resolution of such civil matters;

e) Full names and addresses of persons who are related to the resolution of the petition, if any.

f) Other information that are deemed by the petitioner to be relevant to the resolution of his/her petition;

g) Signature or fingerprint of petitioner being individual or signature and seal of the lawful representative of the agency or organization being the petitioner.

3. The petition must be accompanied by documents, evidences to prove that the petitions are well-grounded and lawful.

Article 313.- Participants in meetings to resolve civil matters

1. The courts must hold open meetings to resolve civil matters.

After issuing decision to hold meetings for resolution of civil matters, the courts must immediately send such decisions and the dossiers on the civil matters to the procuracies of the same level for study. The procuracies must study them within seven days after the receipt of the dossiers; past this time limit, the procuracies must return the dossiers to the courts for holding meetings to resolve the civil matters.

2. Procurators of the procuracies of the same level must attend the meetings. In cases where they are absent the meetings must be postponed.

3. Petitioners or their lawful representatives must participate in the meetings under the courts' subpoena.

If petitioners are absent for the first time for plausible reasons, the courts shall postpone the meetings. Where petitioners request the courts to resolve the civil matters in their absence, the courts may do so. If petitioners have been duly summoned twice but still absent, they shall be deemed to waive their petitions and the courts shall issue decisions to stop the resolution of the civil matters. In cases where the courts issue decisions to stop the resolution of the civil matters, the petitioner's right to request the courts to resolve the civil matters according to the procedures prescribed by this Code shall still be guaranteed.

4. Related persons or their lawful representatives may be summoned to the meetings by courts. In case of necessity, the courts may summon witnesses, expert-witnesses and/or interpreters to attend the meetings. If any of them is absent, the courts shall decide to postpone the meetings or to proceed with the meetings.

Article 314.- Procedures for conducting meetings to resolve civil matters

1. A meeting to resolve civil matters shall be conducted in the following order:

a) The court clerk shall report on the presence or absence of meeting participants;

b) The judge shall open the meeting; check the presence or absence of persons who are summoned to the meeting and their identity cards;

c) Petitioner or his/her lawful representative shall present specific issues that are requested to be dealt with by the court; reasons, purposes and grounds for requesting the court resolution of such civil matters;

d) Related persons or their lawful representatives shall express their opinions on matters pertaining to their rights and obligations in the resolution of the civil matters;

e) Witnesses present their opinions; or expert-witnesses present their conclusions and explain issues which remain unclear or contradictory;

f) Evidences shall be examined;

g) Procurator shall present the procuracy's views on the resolution of the civil matters;

h) The judge shall consider and decide to accept or not to accept the request for resolution of the civil matters;

2. In case where a person is absent, the judge may publicize the testimonies, documents and/or evidences supplied or disclosed to the court by that person.

Article 315.- Decision on resolution of civil matters

1. A decision to resolve civil matters shall contain the following principal contents:

a) Date of making the decision;

b) Name of the court that issues the decision;

c) Full names of the judge, procurator, court clerk;

d) Full name and address of the petitioner for the resolution of civil matters;

e) Specific matters requested to be resolved by the court;

f) Names and addresses of the related persons;

g) Assessment of the court and grounds for accepting or not accepting the petition;

h) Legal bases for resolution of civil matters;

i) Court's rulings;

j) Court fees to be paid.

2. Decisions to resolve civil matters must be forwarded to the procuracies of the same level, competent judgment-executing agencies, the petitioners for the resolution of civil matters and individuals, agencies and/or organizations whose rights and obligations are related to such decisions within five working days as from the date of issuance of such decisions.

Article 316.- Appeal and protest against civil matter-resolving decisions

Petitioners and individuals, agencies and/or organizations whose rights and obligations are related to civil matter-resolving decisions shall be entitled to appeal, the procuracies of the same level and immediate superior procuracy shall be entitled to protest against civil matter-resolving decisions in order to request the immediate superior court to re-settle them according to the appellate procedures, except those decisions prescribed in Clauses 2 and 3, Article 28 of this Code.

Article 317.- Appeal or protest time limits

1. The petitioners and individuals, agencies and/or organizations whose rights and obligations are related to civil matter-resolving decisions shall be entitled to appeal against such decisions within seven days as from the date the courts issue such decisions, except for cases prescribed in Clause 1 of Article 358 and Clause 1 of Article 372 of this Code. In cases where they are not present at court sessions, such time limit shall be counted from the date they receive the civil matter-resolving decisions or the date such decisions are announced or posted up.

2. The procuracies at the same level shall be entitled to protest against civil matter-resolving decisions within 7 days, the immediate superior procuracies shall be entitled to protest within 15 days as from the date the courts make such decisions, except for cases prescribed in Clause 2, Article 358 and in Clause 2, Article 372 of this Code.

Article 318.- Procedures for appellate trial of civil matter-resolving decisions which are appealed or protested against

The procedures for appellate review of civil matter-resolving decisions being appealed or protested against shall comply with the provisions of Article 280 of this Code.

Chapter XXI

PROCEDURES FOR RESOLUTION OF PETITIONS TO DECLARE PERSONS LOSING THEIR CIVIL ACT CAPACITY OR HAVING RESTRICTED CIVIL ACT CAPACITY

Article 319.- The petitions to declare persons losing their civil act capacity or having restricted civil act capacity

1. Persons with related rights and obligations, relevant agencies or organizations shall be entitled to request courts to declare persons losing their civil capacity or having restricted civil act capacity according to the provisions of the Civil Code.

2. The petitions for courts to declare persons losing their civil act capacity or having restricted civil act capacity must fully contain the details prescribed in Clause 2, Article 312 of this Code.

3. The petitions for courts to declare persons losing their civil act capacity must be accompanied by the conclusions of professional bodies and other evidences to prove that such persons suffer mental or other diseases that render them unable to perceive or control their acts.

4. The petitions for courts to declare persons having restricted civil act capacity must be accompanied by evidences to prove that such persons are drug addictive or addicted to other stimulants, thus leading to a damage or loss of the assets of their families.

Article 320.- Preparation for petition consideration

1. The time limit for preparing the consideration of a petition for the court to declare a person losing his/her civil act capacity or having restricted civil act capacity shall not exceed thirty days as from the date the court accepts the petition. Upon the expiry of such time limit, the court shall issue a decision to hold a meeting to consider the petition.

2. During the time limit of preparing the petition consideration, at the proposals of the involved parties, the courts may request the examination of the health or ailments of the persons who are requested to be declared losing their civil act capacity or having restricted civil act capacity. In this case, the courts shall issue decisions to open meetings to consider the petitions after the examination conclusions are made.

3. During the preparation for consideration of a petition, if the petitioner withdraws his/her petition, the court shall issue a decision to stop the petition consideration.

4. Within fifteen days as from the date the decision to open a meeting is issued, the judge must hold such meeting to consider the petition.

Article 321.- Decisions to declare persons losing their civil act capacity or having restricted civil act capacity

1. The courts may accept or reject petitions to declare persons losing their civil act capacity or having restricted civil act capacity.

2. In cases where a petition is accepted by the court, the court shall issue a decision to declare a person losing his/her civil act capacity or having restricted civil act capacity.

In its decision to declare a person having restricted civil act capacity, the court must decide on the at-law representative of the person having a restricted civil act capacity and the scope of representation.

Article 322.- Petitions for annulling decisions to declare persons losing their civil act capacity or having restricted civil act capacity

1. When a person who is declared by the court to have lost his/her civil act capacity or have had a restricted civil act capacity is no longer in the declared state, that person or persons with related rights and obligations or relevant agencies or organizations may request the court to issue a decision to annul the decision that has declared such person losing his/her civil act capacity or having restricted civil act capacity.

2. A petition for the court to annul the decision that declares a person losing his/her civil act capacity or having restricted civil act capacity must include all the contents prescribed in Clause 2 of Article 312 of this Code.

Article 323.- Preparing for petition consideration and decisions of courts

1. The time limit for preparing to consider a petition requesting the court to annul a decision that has declared a person losing his/her civil act capacity or having restricted civil act capacity shall comply with the provisions of Article 320 of this Code.

2. The court may accept or reject petitions for annulling decisions that have declared persons losing their civil act capacity or having restricted civil act capacity.

3. In case of accepting the petitions the courts shall issue decisions to annul the decisions that have declared persons losing their civil act capacity or having restricted civil act capacity.

Chapter XXII

PROCEDURES FOR RESOLUTION OF PETITIONS TO ISSUE NOTICES ON SEARCH OF PERSONS ABSENT FROM THEIR RESIDENCE PLACES

Article 324.- Petitions for issuing notices on search of persons absent from their residence places

1. Persons with related rights and interests shall be entitled to request courts to issue notices on search of persons absent from their residence places when such persons are absent for six consecutive months or more, and at the same time request courts to apply measures for management of the assets of the absent persons under the provisions of the Civil Code.

2. A petition for the court to announce the search of a person absent from his/her residence place must contain all contents prescribed in Clause 2 of Article 312 of this Code.

3. The petitions to request courts to issue notices on search of persons absent from their residence places must be accompanied by evidences to prove that such persons have been absent for six consecutive months or more. In case of petitions for the courts to take measures to manage the assets of the absent persons, the petitioners must provide documents on the situation of assets of the absent persons, the management of the existing assets as well as the list of the absent persons’ relatives.

Article 325.- Preparing to consider petitions

1. The time limit for preparing to consider a petition for the court to issue a notice on search of a person absent from his/her residence place shall be 20 days as from the date the court receives the petition. Upon the expiry of such time limit, the court shall issue a decision to open a meeting to consider the petition.

2. Within the above-mentioned time limit, the courts may issue decisions to stop the petition consideration if the petitioners withdraw their petitions or the persons on search notice return and request the courts to stop considering the petitions.

3. Within 10 working days as from the date of issuance of the decision to open a meeting, the judge must open a meeting to consider the petition.

Article 326.- Decisions to issue notices on search of persons absent from their residence places

1. The courts may accept or not accept petitions for issuance of notices on search of persons absent from their residence places.

2. In case of accepting a petition the court shall issue a decision to accept the petition and issue a notice on search of a person absent from his/her residence place. If a petition for the court to take necessary measures to manage the assets of the absent person is accepted, the court’s decision to accept the petition must also decide on the application of measures to manage the assets of such person according to the provisions of the Civil Code.

Article 327.- Notices on search of persons absent from their residence places

A notice on search of a person absent from his/her residence place must contain the following principal contents:

1. Date of issuance of the notice;

2. Name of the court that issues the notice;

3. Serial number and date of the court’s decision to accept the petition for issuance of a notice on search of a person absent from his/her residence place;

4. Full name and address of the petitioner;

5. Full name, date of birth or age of the person to be searched for and the address of his/her latest residence place before his/her absence.

6. Addresses of relevant individuals or organizations for contacts by the person to be searched for or other persons having information on the person to be searched for.

Article 328.- Announcement of notices on search of persons absent from their residence places

1. A notice on search of a person absent from his/her residence place must be published on a central daily for three consecutive issues and broadcast on the national Radio or TV station for three times in three consecutive days.

2. All expenses for the publication or broadcasting of notices on search of persons absent from their residence places shall be borne by the petitioners.

Article 329.- Effect of decisions on issuance of notices on search of persons absent from their residence places

Decisions on issuance of notices on search of persons absent from their residence places prescribed in Article 326 of this Code shall automatically cease to be effective in cases where the persons to be searched for return.

Chapter XXIII

PROCEDURES FOR RESOLUTION OF PETITIONS FOR DECLARING PERSONS MISSING

Article 330.- Petition for declaring a person missing

1. Persons with related rights and interests shall be entitled to request the court to declare a person missing under the provisions of the Civil Code.

2. A petition for the court to declare a person missing must fully contain the details prescribed in Clause 2 of Article 312 of this Code.

3. The petitions must be accompanied by evidences to prove that the persons who are requested to be declared missing have been absent for two consecutive years or more without authenticated information on whether they are still alive or dead and prove that the petitioners have taken sufficient measures for search notices. In cases where the courts have issued decisions on notice on search of the persons absent from their residence places, copies of such decisions must also be submitted.

Article 331.- Preparing for petition consideration

1. Within 20 days as from the date of receiving a petition for declaring a person missing, the court shall issue a decision on a notice on search of the person who is requested to be declared missing.

2. The content of such a notice and the announcement of the notice shall comply with the provisions of Articles 327 and 328 of this Code. The time limit for such a search notice shall be four months as from the date of publishing or broadcasting the notice for the first time.

3. Within the time limit for announcing a notice, if the petitioner withdraws his/her petition or the person who is requested to be declared missing returns and requests the court to stop considering the petition, the court shall issue a decision to stop the consideration of the petition for declaring that person missing.

Article 332.- Decision to declare a person missing

1. Within fifteen days as from the expiry of the time limit for announcing a search notice, the court shall open a meeting to consider a petition for declaring a person missing.

2. The court may accept or not accept petitions.

3. In case of accepting a petition, the court shall issue a decision declaring a person missing. In cases where the court is requested to take measures to manage assets of the person who is declared missing and the request is accepted, the court’s decision must also indicate specific measures to be taken to manage assets of that person according to the provisions of the Civil Code.

Article 333.- Petitions for annulling court decisions declaring persons missing

1. In cases where a person who is declared missing returns or where there is reliable information affirming that such person is still alive, that person or persons with related rights and interests may request the court to issue a decision annulling the decision that has declared such person missing.

2. A petition for the court to annul a decision declaring a person missing must fully contain the details prescribed in Clause 2 of Article 312 of this Code.

3. Such a petition must be accompanied by evidences to prove that the person who is declared missing has returned or is still alive.

Article 334.- Decision to annul a decision that declares a person missing

1. Within 15 days as from the date of accepting a petition for annulling a decision that has declared a person missing, the court shall open a meting to consider the petition.

2. The courts may accept or not accept petitions.

3. In case of accepting a petition, the court shall issue a decision to annul the decision that has declared a person missing, deciding on the legal consequences of the annulment of the decision declaring such person missing under the provisions of the Civil Code.

Chapter XXIV

PROCEDURES FOR RESOLUTION OF PETITIONS FOR DECLARING PERSONS DEAD

Article 335.- Petition for declaring a person dead

1. Persons with related rights and interests may request the court to declare a person dead according to the provisions of the Civil Code.

2. A petition for the court to declare a person dead must fully contain the details prescribed in Clause 2 of Article 312 of this Code.

3. The petitions must be accompanied by evidences to prove that the persons who are requested to be declared dead have already died in one of the cases specified by the Civil Code.

Article 336.- Preparing for petition consideration

1. The time limit for preparing to consider a petition for declaring a person dead shall not exceed thirty days as from the date the court receives the petition; upon the expiry of that time limit, the court must issue a decision to open a meeting to consider the petition.

2. Within the time limit for preparing to consider a petition, the court shall issue a decision to stop considering the petition if the petitioner withdraws his/her petition or the person who is requested to be declared dead returns and requests the court to stop the consideration of the petition.

3. Within ten days as from the date of issuing the decision to open the meeting, the court shall open a meeting to consider the petition.

Article 337.- Decision to declare a person dead

1. The courts may accept or not accept petitions to declare persons dead.

2. In case of accepting a petition, the court shall issue a decision declaring a person dead. In such decision, the court shall determine the date on which that person died and the legal consequences of declaring a person dead according to the provisions of the Civil Code.

Article 338.- Petitions to annul court decisions that have declared persons dead

1. In cases where the person who is declared dead returns or where there is reliable information affirming that such person is still alive, that person or persons with related rights and interests may request the court to issue decision annulling the decision that has declared such person dead.

2. A petition for the court to annul a decision declaring a person dead must fully contain the details prescribed in Clause 2, Article 312 of this Code.

3. The petitions must be accompanied by evidences to prove that the persons who are declared dead have returned or are still alive.

Article 339.- Decisions to annul decisions that have declared persons dead

1. Within 15 days as from the date of receiving a petition for annulling a decision that has declared a person dead, the court shall open a meeting to consider the petition.

2. The courts may accept or not accept petitions.

3. In case of accepting a petition, the court shall issue a decision to annul the decision that has declared a person dead. In the latter decision, the court must determine the legal consequences of the annulment of the decision declaring a person dead according to the provisions of the Civil Code.

Chapter XXV

PROCEDURES FOR RESOLUTION OF CIVIL MATTERS RELATING TO COMMERCIAL ARBITRATION ACTIVITIES IN VIETNAM

Article 340.- Civil matters relating to Vietnamese commercial arbitration activities that fall under the jurisdiction of the court

1. Appointment or change of arbitrators;

2. Application, change or cancellation of provisional emergency measures;

3. Abolition of arbitral awards;

4. Other civil matters prescribed by the legislation on Vietnamese commercial arbitration.

Article 341.- Resolving procedures

Procedures for resolution of civil matters pertaining to Vietnamese commercial arbitration activities shall comply with the provisions of the legislation on Vietnamese commercial arbitration.