Chương IV Bộ luật tố tụng dân sự 2015: Cơ quan tiến hành tố tụng, người tiến hành tố tụng và việc thay đổi người tiến hành tố tụng

Chapter IV

CIVIL PROCEEDING AUTHORITIES, CIVIL PROCEDURE -PRESIDING OFFICERS AND REPLACEMENT OF CIVIL PROCEDURE –PRESIDING OFFICERS

Article 46. Civil proceeding authorities, proceeding officers

1. The civil proceeding authorities include:

a) The Court;

b) The Procuracy.

2. The civil proceeding officers include:

a) The Chief Justices, Judges, People’s Jurors, ombudspersons and Court clerks;

b) The Chairpersons of the Procuracies, the Procurators, the Inspectors.

Article 47. Tasks and powers of the courts' Chief Justices

1. The court's Chief Justice shall have the following tasks and powers:

a) To organize the resolution of civil cases falling under the jurisdiction of the Court; ensuring the principle that the Judge and the Juror carry out the adjudication separately and comply with law;

b) To decide on the assignment of Judges to accept the civil cases, Judges to resolve civil cases, People’s Jurors to participate in trial panels to hear civil lawsuits; and to decide on the assignment of ombudspersons, Court clerks to conduct procedures for civil cases, ensuring the principle prescribed in clause 2 Article 16 of this Code;

c) To decide on the replacement of Judges, People’s Jurors, Ombudspersons and/or Court clerks before the opening of Court sessions;

d) To decide on the replacement of expert-witnesses and/or interpreters before the opening of Court sessions;

dd) To issue decisions and conduct civil proceedings under the provisions of this Code;

e) To settle complaints and/or denunciations under the provisions of this Code;

g) To file appeals according to the cassation or reopening procedures against legally-effective Court judgments or decisions according to the provisions of this Code or request the competent Chief Justice to consider the appeal according to the cassation or reopening procedures against legally-effective Court judgments or decisions.

h) To request competent agencies to consider amending or repealing a legislative document if such document is discovered denoting against constitutions, laws, resolutions of National Assembly, ordinances, resolutions of the Standing committee of the National Assembly, superior legislative documents of regulatory agencies as prescribed in this Code;

i) To resolve the acts obstructing the civil procedures as prescribed in law;

k) To perform the tasks and powers prescribed in law.

2. When the Chief Justice is absent, a Deputy-Chief Justice shall be authorized by the Chief Justice to perform the Chief Justice's tasks and powers, excluding the right to file appeals prescribed in point g Clause 1 of this Article. The Deputy-Chief Justice shall be answerable to the Chief Justice for the authorized tasks and powers.

Article 48. Tasks and powers of Judges

As assigned by the Court’s Chief Justice, the Judges shall have the following tasks and powers:

1. To proceed the application for initiating lawsuits and the petitions and accept the civil cases according to regulations in this Code;

2. To file the dossier of civil cases;

3. To collect and verify the evidence, to hold Court sessions and meetings to resolve civil cases according to regulations in this Code;

4. To decide to apply, change or cancel the provisional emergency measures;

5. To decide to suspend or terminate the resolution of civil cases and decide to continue the resolution of the civil cases;

6. To provide explanation and guidance for involved parties so that they can exercise the right to apply for legal assistant according to law on legal assistance;

7. To hold meetings for checking the handover of, access to and disclosure of evidences and mediating and issue decisions on recognition of the agreements between involved parties according to provisions of this Code;

8. To decide to bring civil lawsuits to Court for trial, or bring civil matters for resolution;

9. To convene people to a trial or a meeting;

10. To work as the chairperson or to participate in adjudicating civil lawsuits and resolving civil matters;11. To request the Court’s Chief Justice to assign ombudspersons to assist the conduct of civil proceedings according to the provisions of this Code;

12. To discover and request the Court’s Chief Justice to request competent agencies to consider amending or repealing a legislative document discovered denoting against constitutions, laws, resolutions of National Assembly, ordinances, resolutions of the Standing committee of the National Assembly, superior legislative documents of regulatory agencies as prescribed in this Code;

13. To resolve the acts obstructing the civil procedures as prescribed in law;

14. To conduct other proceedings when resolving civil cases according to the provisions of this Code.

Article 49. Tasks and powers of People’s Jurors

As authorized by the Court’s Chief Justice, the People’s Jurors shall have the following tasks and powers:

1. To study case files prior to the opening of Court sessions;

2. To request the Chief Justices and/or Judges to issue necessary decisions according to their respective competence;

3. To participate in the trial panel of civil lawsuits;

4. To conduct proceedings and take equal power to the Judge in voting on issues falling within the trial panels' jurisdiction.

Article 50. Tasks and powers of ombudspersons

As assigned by the Court’s Chief Justice, the inspectors shall have the following tasks and powers:

1. To conduct inspection of dossiers of civil cases subject to reconsideration in court’s judgments and decisions according to the cassation or reopening procedures.

2. To make conclusion about the inspection and the inspection results and propose solutions for the civil cases to the Court’s Chief Justice;

3. To collect materials and evidences relevant to the civil cases as prescribed in this Code;

4. To assist the Judge to conduct civil proceedings according to the provisions of this Code;

5. To conduct other tasks according to the provisions of this Code.

Article 51. Tasks and powers of Court clerks

As assigned by the Court’s Chief Justice, the Court clerks shall have the following tasks and powers:

1. To make necessary professional preparations prior to the opening of Court sessions;

2. To announce the rules of Court sessions;

3. To check and report to the trial panels the list of those summoned to Court sessions;

4. To write up a minute of the Court session, the meeting and the minute of statements of the involved parties in the civil procedures;

5. To conduct other tasks according to the provisions of this Code.

Article 52. Cases where proceeding officers must refuse to conduct the procedures or be replaced

The proceeding officers must refuse to conduct the procedures or be replaced in the following cases:

1. They are concurrently the involved parties, the representatives or relatives of the involved parties;

2. They have participated in the proceedings in the capacity as defense counsels of the legitimate rights and interests of involved parties, witnesses, expert-witnesses or interpreters in the same case;

3. There are clear grounds to believe that they may not be impartial in performing their tasks.

Article 53. Replacing Judges or People’s Jurors

Judges and/or People’s Jurors must refuse to conduct the civil procedures or be replaced in the following cases:

1. In one of the cases prescribed in Article 52 of this Code;

2. They are in the same trial panel and have a close relationship with one another; in this case, only one person is allowed to participate in the civil procedures;

3. They participated in first-instance, appellate, cassation or reopening procedures in the resolution of such civil cases and have issued first-instance judgments, appellate judgments/decisions, cassation or reopening decisions, civil matter resolving decisions, decisions to terminate the resolution of civil cases or decisions to recognize the agreement between involved parties; if such persons are members of the Council of Judges of the Supreme People’s Court or Committees of Judges of Collegial People’s Courts, they shall be allowed to participate in the resolution of such cases according to cassation/reopening procedures;

4. They have acted as proceeding officers in such cases in the capacity as the ombudsperson, the Court clerk, the prosecutor or the inspector.

Article 54. Replacement of Court clerks, ombudspersons

Court clerks and ombudspersons must refuse to conduct civil procedures or be replaced in the following cases:

1. In one of the cases prescribed in Article 52 of this Code;

2. They have acted as proceeding officers in such cases in the capacity as the Judge, People’s Jurors, ombudsperson, the Court clerk, the prosecutor or the inspector;

3. They are relatives of one of other proceeding officers in the case.

Article 55. Procedures for refusal to conduct the civil proceedings and procedures for request for replacement of Judges, People’s Jurors, Ombudspersons, Court clerks

1. The refusal to conduct the civil proceedings and the request for the replacement of the Judges, People’s Jurors, Ombudspersons, Court clerks before the opening of Court sessions/meetings must be made in writing, clearly stating the reason(s) and grounds therefor.

2. The refusal to conduct the civil proceedings and the request for the replacement of persons specified in clause 1 of this Article in Court sessions/meetings must be recorded in the minutes of the meetings.

Article 56. Decision on the replacement of Judges, People’s Jurors, Ombudspersons and/or Court clerks

1. Before the opening of Court sessions, the replacement of Judges, People's Jurors, Ombudspersons and/or Court clerks shall be decided by the Chief Justice. If the to be-replaced Judge is the court’s Chief Justice, the competence to decide shall be adjusted as follows:

a) The replacement of Judges being Chief Justice of People’s Courts of districts shall be decided by the Chief Justices of People’s Courts of provinces;

b) The replacement of Judges being Chief Justice of People’s Courts of provinces shall be decided by the Chief Justices of Collegial People’s Courts having territorial competence towards such People’s Courts of provinces;

c) The replacement of Judges being Chief Justice of Collegial People’s Courts shall be decided by the Chief Justices of Supreme People’s Courts.

2. In Court sessions, the replacement of Judges, People’s Jurors, Ombudspersons or Court clerks shall be decided by the trial panels after listening to the opinions of the persons requested to be replaced. The trial panels shall discuss matters in the deliberation rooms and make decisions by majority. The decision on postponement of the Court session for the replacement of Judges, People’s Jurors, ombudspersons and/or Court clerks shall be decided by the trial panels. The appointment of other Judges, People’s Jurors, ombudspersons and/or Court clerks as the replacement shall be decided by the courts' Chief Justices. If the to be-replaced person is the court’s Chief Justice, the competence to decide shall conform to regulations in clause 1 of this Article.

3. The replacement of Judges and/or Court Clerks when processing the civil matters shall comply with regulations in clause 1 and clause 2 Article 368 of this Code.

4. Within 03 working days from the day on which the Court session/meeting is postponed, the court’s Chief Justice shall assign the replacing persons.

Article 57. Tasks and powers of procuracy chairpersons

1. When supervising the law observance in the civil proceedings, the procuracy chairperson shall have the following tasks and powers:

a) To organize and direct the work of supervising law observance in civil proceedings;

b) To decide on assignment of procurators to supervise law observance in civil proceedings, to participate in Court sessions for adjudication of civil lawsuits, sessions/meetings for resolution of civil matters according to the provisions of this Code; to decide on assignment of inspectors to carry out the civil procedures for civil cases, ensuring the principle specified in clause 2 Article 16 of this Code;

c) To decide on replacement of procurators or inspectors;

d) To appeal according to appellate, cassation or reopening procedures against Courts judgments or decisions according to the provisions of this Code;

dd) To make requests, proposals according to regulations in this Code;

e) To settle complaints and/or denunciations under the provisions of this Code;

g) To perform the tasks and powers prescribed in law.

2. When the Procuracy Chairperson is absent, a deputy-procuracy chairperson shall be authorized by the Chairperson to perform his/her tasks and powers, except for the power prescribed in point d clause 1 of this Article. The Deputy-procuracy chairperson shall be answerable to the procuracy chairperson for the authorized tasks and powers.

Article 58. Tasks and powers of procurators

When assigned by the procuracy chairperson to supervise the law observance in civil proceedings, the procurators shall have the following tasks and powers:

1. To investigate the return of the petition;

2. To investigate the acceptance and resolution of civil cases;

3. To study the case files; request the Court to verify and collect evidences during the resolution of civil cases according to provisions of this Code; collect materials and evidences according to regulations in clause 6 Article 97 of this Code;

4. To attend Court sessions/meetings and express opinions of procuracies about the resolution of cases according to provisions of this Code;

5. To inspect judgments/decisions of courts;

6. To request Courts to conducted procedural activities as provided for in this Code;

7. To request competent Chairpersons of procuracy to appeal against judgments/decisions of Courts that is contrary to law;

8. To control the procedural activities of participants; to request competent agencies and organizations to handled violations of participants in procedures against law;

9. To perform other civil procedural tasks and powers falling within competence of procuracies as prescribed in this Code.

Article 59. Tasks and powers of inspectors

When assigned to conduct the civil procedures, the inspectors shall have the following tasks and powers:

1. To study the case files and report the results to procurators;

2. To file civil case inspection files according to the assignment of procurators or chairpersons of procuracies;

3. To assist procurators to conduct inspection of the compliance with law provisions in civil procedures.

Article 60. Replacement of procurators/inspectors

Procurators/inspectors must refuse to conduct civil procedures or be replaced in the following cases:

1. In one of the cases prescribed in Article 52 of this Code;

2. They have acted as proceeding officers in such cases in the capacity as the Judge, People’s Jurors, ombudsperson, the Court clerk, the prosecutor or the inspector.

Article 61. Procedures for refusal to conduct the civil proceedings and procedures for request for replacement of the procurators/inspectors

1. Before the opening of Court sessions, the refusal to conduct the civil proceedings and the request for the replacement of the procurators must be made in writing, clearly stating the reason(s) and grounds therefor.

The refusal to conduct the civil proceedings and the request for the replacement of the inspectors must be made in writing, clearly stating the reason(s) and grounds therefor.

2. At the Court session, the refusal to conduct the procedures or the request for the replacement of the procurators must be recorded in the minutes of the Court sessions.

Article 62. Decision on replacement of procurators or inspector

1. Prior to the opening of Court sessions, the replacement of procurators shall be decided by the chairpersons of the procuracies of the same level; if the to be-replaced procurators are procuracy chairpersons, their replacement shall be decided by the chairpersons of the immediate superior procuracies.

The replacement of the inspectors shall be decided by the procuracy chairpersons at the same level.

2. In Court sessions, the replacement of procurators shall be decided by the trial panels after listening to the opinions of the to be-replaced persons. The trial panels shall discuss matters in the deliberation rooms and make decisions by majority.

The decision on postponement of the Court session for the replacement of procurators shall be decided by the trial panels. The appointment of procurators as the replacement shall be decided by the chairpersons of the procuracies of the same level. If the to be-replaced procurators are chairpersons of the procuracies, their replacement shall be decided by the chairpersons of the immediate superior procuracies.

3. The replacement of procurators when processing the civil matters shall comply with regulations in clause 3 Article 368 of this Code.

4. Within 03 working days from the day on which the Court session/meeting is postponed, the procuracy chairperson shall assign the replacing persons and send the Court a written notification.

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