Chương VI Bộ luật tố tụng dân sự 2015: Người tham gia tố tụng

Chapter VI

PARTICIPANTS IN CIVIL PROCEDURES

Section 1. INVOLVED PARTIES IN civil cases

Article 68. Involved parties in civil cases

1. The involved parties in civil lawsuits are agencies, organizations and individuals, including the plaintiffs, the defendants and the persons with related interests and obligations.

The involved parties in civil matters are agencies, organizations and individuals, including the persons petitioning settlement of civil matters and persons with related interests and obligations.

2. The litigator in a civil lawsuit is the person that initiates lawsuit or the person for whom the other agencies, organizations and individuals prescribed by this Code initiates the lawsuit to request the Court to resolve the civil lawsuit when he/she holds that the legitimate rights and interests of that person have been infringed upon.

Agencies and organizations prescribed by this Code, which initiate civil lawsuits to request Courts to protect the public interests, the State's interests in the domains under their respective charges are also plaintiffs.

3. The defendant in a civil lawsuit is the person against whom the plaintiff initiates a lawsuit or the other agencies, organizations and individuals prescribed by this Code initiates a lawsuit to request the Court to resolve the civil lawsuit when they holds that the legitimate rights and interests of the plaintiff have been infringed upon by such person.

4. The persons with related interests and/or obligations in civil lawsuits are those who neither initiate lawsuits nor are sued, but the resolution of the civil lawsuits is related to their interests and/or obligations and, therefore they themselves, or other involved parties, request to include them in the proceedings in the capacity as the persons with related interests and/or obligations and such requests are accepted by courts.

 Where the resolution of a civil lawsuit is related to the interests and/or obligations of a person but no one requests to include him or her in the proceedings in the capacity as the persons with related interests and/or obligations, the Court shall have to include that person in the proceedings in the capacity as the person with related interests and/or obligations.

5. The persons petitioning the resolution of civil matters are those who petition the Court to or not to recognize a legal event to form the basis for the arising of rights and/or obligations relating to civil issues, marriage and family, business, trade and labor of themselves or of other agencies, organizations and individuals; and/or petition the Court to recognize their rights and/or obligations relating to civil issues, marriage and family, business, trade, labor.

6. The persons with related interests and/or obligations in civil matters are those who do not petition the resolution of civil matters, but the resolution of the civil matters is related to their interests and/or obligations and, therefore they themselves, or other involved parties in the civil matters, request to include them in the proceedings in the capacity as the persons with related interests and/or obligations and such requests are accepted by the Courts.

Where the resolution of a civil matter is related to the interests and/or obligations of a person but no one requests to include him or her in the proceedings in the capacity as the persons with related interests and/or obligations, the Court shall have to include that person in the proceedings in the capacity as the person with related interests and/or obligations.

Article 69. The involved parties' civil procedure law capacity and civil procedure act capacity

1. The civil procedure law capacity means the capability to have the law-prescribed rights and obligations in civil procedures. Every agencies, organizations and individuals shall have the same civil procedure law capacity in petitioning the Court to protect his/her/its legitimate rights and interests.

2. The civil procedure act capacity means the ability to exercise one's own rights and obligations by him/herself in civil procedures or authorize his/her representative to participate in civil procedures.

3. The involved parties being persons aged full 18 years or older shall have full civil procedure act capacity, except for legally incapacitated person or except otherwise provided for by law.

Regarding persons with limited capacity of exercise, people with limited cognition or behavior control, their civil procedure act capacity shall be determined according to the decision of the Court.

4. The involved parties being persons aged under 6 years or persons losing their civil act capacity shall not have the civil procedure act capacity. The exercise of the civil proceeding rights and/or obligations of such persons, the protection of the legitimate rights and interests of such persons at Courts shall be performed by their lawful representatives.

5. For the involved parties being persons aged between full 6 and under 15 years, the protection of their civil proceeding rights and/or obligations and the protection of legitimate rights and interests of such persons at Courts shall be performed by their lawful representatives.

Regarding persons with limited capacity of exercise, people with limited cognition or behavior control, their civil procedure act rights and/or obligations and the protection of their legitimate rights and interests shall be determined according to the decision of the Court.

6. The involved parties being persons aged between full 15 years and under 18 years, who have worked under labor contracts or involved in civil transactions with their own properties shall have the right to participate in civil procedures themselves regarding matters related to such labor or civil relations. In such cases, the Court shall have the right to summon their lawful representatives to participate in the procedures. For other matters, the exercise of the civil proceeding rights and/or obligations of such persons at Courts shall be performed by their lawful representatives.

7. The involved parties being agencies, organizations shall participate in civil procedures through their lawful representatives.

Article 70. Rights and obligations of the involved parties

The involved parties shall have equal rights and obligations when participating in civil procedures. When participating in civil procedures, the involved parties shall have the following rights and obligations:

1. To respect courts, and strictly observe the court's rules;

2. To advance Court fees and charges and pay Court fees and charges and other expenses as prescribed by law;

3. To provide sufficiently and accurately address of their residence/work place; during the resolution of cases, any change of address of residence/workplace shall be promptly notified other involved parties and the Court;

4. To maintain, modify, supplement or withdraw their petitions in accordance with this Code;

5. To supply materials and evidences; to prove to protect their legitimate rights and interests;

6. To petition agencies, organizations and individuals that are keeping or managing materials and evidences to supply such materials and evidences to them;

7. To petition the Court to verify and collect materials and evidences of the cases which they cannot perform themselves; petition the Court to request other involved parties to present materials and evidences they are keeping; petition the Court to issue the decision to request the agencies, organizations and individuals that are keeping and managing the materials/evidences to supply such materials and evidences; request the Court to summon witnesses, to ask for expertise, evaluation or price appraisal;

8. To read and take notes, make photocopies of materials and evidences produced by other involved parties or collected by courts, except for materials and evidences specified in clause 2 Article 109 of this Code;

9. To send other involved parties or their lawful representatives photocopies of the petition and materials and evidences, excluding evidences and materials that other involved parties have been provided with as prescribed in clause 2 Article 109 of this Code.

For cases where the photocopies of lawsuit petition, materials and evidences cannot be made due to good and sufficient reasons, they may request the Court to assist;

10. To request Courts to decide on the application, change or cancellation of the application of provisional emergency measures;

11. To reach agreement with one another on the resolution of cases: to participate in mediation conducted by courts;

12. To receive regular notices for the exercise of their rights and obligations;

13. To protect by themselves or ask other persons to protect their legitimate rights and interests;

14. To petition the replacement of civil proceeding officers or participants in civil procedures in accordance with this Code;

15. To participate in the Court sessions according to the provisions of this Code;

16. To be present according to Court summons and abide by Court decisions during the settlement of their cases;

17. To ask the Courts to summon persons with related interests and obligations to participate in civil procedures;

18. To ask Courts to suspend the settlement of their cases in accordance with this Code;

19. To make questions to other persons on matters related to the cases or to propose to Courts matters which need to be questioned on other persons; to confront each other or witnesses;

20. To argue in Court sessions, to present argument about assessment of the evidence and the applied law provisions;

21. To be provided with extracts of Court judgments, judgments or decisions;

22. To appeal against or complain about Court judgments or decisions in accordance with Code;

23. To ask competent persons to appeal according to cassation or reopening procedures against legally effective judgments or decisions of courts;

24. To strictly abide by legally effective judgments or decisions of courts;

25. To enjoy rights of involved parties in a way that such rights are not misused to obstruct the procedures of Courts and/or other involved parties; to bear the consequences prescribed by this Code if failing to fulfill obligations;

26. To have other rights and obligations prescribed by law.

Article 71. Rights and obligations of the plaintiffs

1. The involved parties' rights and obligations prescribed in Article 70 of this Code.

2. To modify the contents of lawsuit claims; withdraw part or whole of their lawsuit claims.

3. To agree or disagree with part or whole of the counter-claims of defendant, persons with related interests and/or obligations who have independent claims.

Article 72. Rights and obligations of the defendants

1. The involved parties' rights and obligations prescribed in Article 70 of this Code.

2. To be notified by Courts of the lawsuits against them.

3. To agree or disagree with part or whole of the claims of the plaintiff, persons with related interests and/or obligations who have independent claims.

4. To make counter-claims against the plaintiffs if they are related to the plaintiffs' claims or set off the obligations claimed by the plaintiffs. For counter-claims, the defendants shall have the plaintiffs' rights and obligations prescribed in Article 71 of this Code.

5. To make independent claims for persons with relevant interests and/or obligations and such claims shall relevant to the lawsuit settlement. For independent claims, the defendants shall have the plaintiffs' rights and obligations prescribed in Article 71 of this Code.

6. If the counter-claims or the independent claims are not accepted by the Court to be resolved in the same case, the defendant may initiate another lawsuit.

Article 73. Rights and obligations of the persons with related interests and/or obligations

1. Persons with related interests and/or obligations shall have the following rights and obligations:

a) The rights and obligations prescribed in Article 70 of this Code;

b) To be allowed to make independent claims or participate in the procedures on the side of the plaintiffs or the defendants.

2. If the persons with related interests and obligations make independent claims and such independent claims are related to the lawsuit settlement, they shall have the plaintiffs' rights and obligations prescribed in Article 71 of this Code. If different independent claims are not accepted by the Court to be resolved in the same case, the persons with related interests and/or obligations may initiate another lawsuit.

3. If the persons with related interests and/or obligations participate in the procedures on the side of the plaintiff or only have interests, they shall have the plaintiffs' rights and obligations prescribed in Article 71 of this Code.

4. If the persons with related interests and/or rights participate in the procedures on the side of the defendants or only have obligations, they shall have the defendants' rights and obligations prescribed in Article 72 of this Code.

Article 74. Inheritance of procedural rights and obligations.

1. Where the involved parties being individuals die while participating in the procedures and their property rights and obligations are inherited, their heirs shall participate in the procedures.

2. Where the involved parties being agencies or organizations have to terminate their operations or to be dissolved, consolidated, merged, divided, separated or organizationally transformed while participating in the procedures, the inheritance of their procedural rights and obligations shall be determined as follows:

a) Where the organizations that have to terminate their operations or to be dissolved are joint-stock companies, limited liability companies or partnerships, the individuals and/or organizations being members of such organizations or their lawful representatives shall participate in the procedures;

b) Where the agencies, organizations that have to terminate their operations or to be dissolved are regulatory agencies, people's armed force units, political organizations, socio-political organizations, professional and socio-political organizations, social organizations, socio-professional organizations or state-owned enterprises, the lawful representatives of the superior agencies of such agencies/organizations or the lawful representatives of the agencies/organizations which take over the former's rights and obligations shall participate in the procedures;

c) Where the organizations are consolidated, merged, divided, separated or organizationally transformed, the individuals or organizations that take over the former's rights and obligations shall participate in the procedures.

3. Where the owners of the organizations are changed and the rights and obligations are transferred to the new owners, the new owners shall inherit the procedural rights and obligations.

4. Where the organizations received the rights and obligations according to civil law provisions, such organizations shall inherit the procedural rights and obligation.

5. Where the organizations other than legal persons participate in the procedures but their representatives or managers die, such organizations shall have to appoint other persons as their representatives to participate in the procedures; if such organizations fail to appoint representatives or have to terminate their operations or to be dissolved, the individuals being members of such organizations shall participate in the procedures.

Section 2. OTHER PARTICIPANTS IN THE PROCEDURES

Article 75. Defense counsels of involved parties' legitimate rights and interests

1. The defense counsels of involved parties' legitimate rights and interests are persons who participate in the procedures to protect the involved parties' legitimate rights and interests.

2. The following persons can act as defense counsels of the involved parties legitimate rights and interests when they were asked by the involved parties and have been accepted by Courts to participate in the procedures to protect the involved parties’ legitimate rights and interests:

a) Lawyers who participate in the procedures under the provisions of the legislation on lawyers;

b) Legal aid officers or persons participating in legal aid under the law on legal aid;

c) Representatives of employee collective’s representative organizations who are defense counsels of employee’s legitimate rights and interests in labor cases according to legislation on labor and trade union;

d) Vietnamese citizens who have full civil act capacity, have clean criminal records or have been expunged convictions, who do not fall into the cases subject to the application of administrative handling measures; who are not cadres or civil servants in the Court or procuracy sector, officers or non-commissioned officers in the public security force.

3. The defense counsels of the involved parties' legitimate rights and interests can defend the legitimate rights and interests of more than one involved party in the same case, if those persons' legitimate rights and interests do not conflict each other. Many defense counsels of the involved parties' legitimate rights and interests may jointly defend the legitimate rights and interests of one involved party in a case.

4. When applying the Court to carry out the registration procedure for defense counsels of involved parties’ legitimate rights and interests, the applicant shall present the following papers:

a) The lawyers shall present papers according to regulations in the Law on lawyers;

b) Legal aid officers or persons participating in legal aid under the law on legal aid shall present the written appointment for legal aid issued by the organizations providing legal aid and the cards of legal aids or lawyer’s card;

c) Representatives of employee collective’s representative organization shall present the writing that such organizations have appointed them to defend the legitimate rights and interests of the employees/collective labor;

d) Vietnamese citizens satisfying conditions specified in point d clause 2 of this Article shall present the written petitions of the involved parties and their identity papers.

5. After checking papers, if the applicant is satisfactory to act as the defense counsel of the involved parties’ legitimate rights and interests as prescribed in clauses 2, 3 and 4 of this Article, within 03 working days from the day on which the application is received, the Court shall record to the register the defense counsel of the involved parties’ legitimate rights and interests and shall certify the application for defense counsels of the involved parties. If the application is rejected, the Court shall send the applicant a written notification containing the explanation.

Article 76. Rights and obligations of defense counsels of the involved parties' legitimate rights and interests

1. To participate in the procedures right at the time of lawsuit initiation or at any stage in the civil procedures.

2. To collect and supply materials and evidences to courts; to study case files and to take notes, to copy necessary materials in the case files in order to defend the legitimate rights and interests of the involved parties, except for materials and evidences specified in clause 2 Article 109 of this Code.

3. To participate in mediation, Court sessions or make their written defense of the legitimate rights and interests of the involved parties to Courts for consideration.

4. To petition on behalf of the involved parties the replacement of proceeding officers and/or other procedure participants according to the provisions of this Code.

5. To provide involved parties with legal aid related to the defense of their legitimate rights and interests; if they are authorized by the involved parties, they shall receive the papers and procedural documents that are transmitted or notified by the Court on behalf of the involved parties and shall give then to the involved parties.

6. To comply with rights and obligations specified in clauses 1, 6, 16, 17, 18, 19 and 20 of Article 70 of this Code.

7. To have other rights and obligations prescribed by law.

Article 77. Witnesses

Persons who know details related to the contents of cases may be summoned by Courts at the request of the involved parties to participate in the procedures in the capacity as witnesses. Persons who lose their civil act capacity cannot act as witnesses.

Article 78. Rights and obligations of witnesses

1. To supply all information, documents and/or objects they have obtained, which are related to the resolution of cases.

2. To honestly declare details they know, which are related to the resolution of cases.

3. To refuse to make declarations if their declarations are related to State secrets, professional secrets, business secrets, personal secrets, family secrets or such declarations adversely affect or harm the involved parties being their close relatives.

4. To be off duty while the Courts summon them or take their testimonies, if they work in agencies or organizations.

5. To be paid related expenses according to law provisions.

6. To petition the Courts which have summoned them and competent agencies to protect their lives, health, honor, dignity, properties and other legitimate rights and interests when participating in the procedures; to complain about procedural acts of proceeding officers.

7. To compensate and take legal responsibility for damage caused to the involved parties or other persons by their untruthful testimonies.

8. To be present at courts, Court sessions/meetings under the court's summon of the Courts if the witness's testimony must be given publicly at courts, Court sessions/meetings; where witnesses fail to show up in Court sessions/meetings without good and sufficient reasons and their absence obstruct the adjudication/resolution, the Judges, the trial panels or the civil matter resolution council may issue decisions to escort them to Court sessions/meetings, unless the witnesses are minors.

9. To make commitments before Courts to perform their rights and obligations, except for cases where the witnesses are minors.

Article 79. Expert-witnesses

Expert-witnesses are persons who have law-prescribed necessary knowledge and/or experiences in the fields where exist objects needed to be expertised, who are called by Courts to expertise the objects in question or at the request of the involved parties according to regulations in Article 102 of this Code.

Article 80. Rights and obligations of expert-witnesses

1. Expert-witnesses shall have the following rights and obligations:

a) To read documents in the case files which are related to the to be-expertised objects; to petition Courts to provide documents necessary for the expertise;

b) To question participants in legal procedures about matters related to the to be - expertised objects;

c) To be present under the courts' summons; present, explain and answer questions related to the expertise and expertising conclusions in an honest, well-grounded and objective manner;

d) To notify the Courts in writing of the impossibility to conduct the expertise as the matters needed to be expertised go beyond their professional capability and/or the documents supplied in service of the expertising are inadequate or unusable;

dd) To preserve the received documents and return them to Courts together with their expertising conclusions or with the notices on impossibility to conduct expertise;

e) Not to arbitrarily collect materials for conducting the expertise nor to contact other participants in the procedures if such contacts effect the expertising results; not to disclose secret information they know while conducting the expertise nor to inform the expertising results to other persons, except for the Judges who decide to request the expertise;

g) To be paid related expenses according to law provisions;

h) To make commitments before Courts to perform their rights and obligations.

2. Expert-witnesses must refuse to take the job or be replaced in the following cases:

a) They fall into one of the cases prescribed in Clauses 1 and 3 of Article 52 of this Code or Article 34 of the Law on judicial expertise;

b) They have participated in the procedures in the capacity as defense counsels of the legitimate rights and interests of the involved parties, as witnesses or interpreters in the same case;

c) 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 81. Interpreters

1. Interpreters are persons capable of translating a foreign language into Vietnamese and vice versa in cases where procedure participants are unable to use Vietnamese. Interpreters shall be selected by an involved party or under the agreement between involved parties and are accepted or requested by courts.

2. People who understand language of disabled persons or can use language of disabled people are also considered interpreters.

Where only representatives or relatives of disabled persons can understand and use their language, such representatives or relatives may be accepted by Courts to act as interpreters for such disabled persons.

Article 82. Rights and obligations of interpreters

1. Interpreters shall have the following rights and obligations:

a) To be present under courts' summons;

b) To interpret truthfully, objectively and accurately;

c) To request proceeding officers and/or participants to additionally explain their words which need to be interpreted;

d) Not to contact other procedure participants if such contacts affect the truthfulness, objectiveness and accuracy of their interpretation;

dd) To be paid related expenses according to law provisions;

e) To make commitments before Courts to perform their rights and obligations.

2. Interpreters must refuse to take the job or be replaced in the following cases:

a) They fall into one of the cases prescribed in Clauses 1 and 3 of Article 52 of this Code;

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

c) They have presided over the procedure in the capacity as the Judge, People’s Jurors, ombudsperson, the Court clerk, the prosecutor or the inspector.

Article 83. Procedures for refusing to give expertise opinions or interpretations or requesting the replacement of expert-witnesses or interpreters.

1. The refusal to give expertise opinions or interpretations or the request for replacement of expert-witnesses or interpreters prior to the opening of Court sessions must be made in writing, clearly stating the reasons therefor.

2. The refusal to give expertise opinions or interpretations or the request for replacement of expert-witnesses or interpreters in Court sessions must be recorded in the minutes of the Court sessions.

Article 84. Deciding on replacement of expert-witnesses, interpreters

1. Prior to the opening of Court sessions, the replacement of expert-witnesses and/or interpreters shall be decided by courts' Chief Justices.

2. In the Court session, the replacement of the expert-witnesses and/or interpreters shall be decided by the Judges, Trial panels, civil matter-resolving councils after listening to the to be-replaced persons. The trial panels and the civil matter-resolving councils shall discuss matters in the deliberation rooms and make decisions by majority.

Where expert-witnesses or interpreters must be replaced, the Judges, the Trial panels or the Civil matter-resolving council shall issue decisions to postpone the Court sessions. The request for other expert-witnesses or interpreters shall comply with the provisions of Articles 79 and 81 of this Code.

Article 85. Representatives

1. The representatives in civil procedures comprise the representatives at law and the proxy representatives. The representatives can be individuals or legal entities as defined in Civil Code

2. The representatives at law as defined in the Civil Code shall be the representatives at law in the civil procedures, except where the representative right is restricted under law provisions.

Agencies, organizations and individuals that initiate lawsuit to protect the legitimate rights and interests of others shall also be the representatives at law of the protected persons in the civil procedures.

3. Employee collective’s representative organizations shall be lawful representatives of collective of employees initiating lawsuits over labor cases, participate in procedures at Courts when legitimate rights and interests of the collective of employees are infringed upon; employee collective’s representative organizations are in charge of representing employees in initiating lawsuits over labor cases and participate in procedures when being authorized by employees.

If multiple employees filing the same claim towards the employer of the same enterprise/unit, such employees may authorize a representative from the employee collective’s representative organization to represent them in initiating lawsuits over labor cases and participate in procedures at the Court.

4. The proxy representatives as defined in the Civil Code shall be the proxy representatives in the civil procedures.

For the divorce, the involved parties must not designate any other persons to participate in the procedure on their behalf. If parents or other relatives of the involved parties petition the Courts to resolve the divorce cases as prescribed in clause 2 Article 51 of the Law on marriage and family, they such be the representatives.

Article 86. Rights and obligations of representatives

1. The representatives at law in civil procedures shall exercise the procedural rights and obligations of the involved parties within the scope they represent.

2. The proxy representatives in civil procedures shall exercise the procedural rights and obligations of the involved parties according to the written authorization.

Article 87. Cases of disallowance to act as representatives

1. Persons must not act as representatives at law in the following cases:

a) They are also the involved parties in the same case with the represented persons where their legitimate rights and interests are contrary to those of the represented persons;

b) They are acting as representatives at law in civil procedures for other involved parties whose legitimate rights and interests are contrary to those of the represented persons in the same case.

2. The provisions in Clause 1 of this Article shall also apply to the case of proxy representatives in civil procedures.

3. Officials or employees in the court, procuracy or police sectors must not act as representatives in civil procedures, except for cases where they participate in civil procedures in the capacity as representatives of their agencies or as representatives at law.

Article 88. Appointing representatives in civil procedures

1. While civil procedures are conducted, if any involved party is the minor persons, legally incapacitated persons, persons with limited capacity of exercise, persons with limited cognition or behavior control but has no representative or his/her representative at law falls into one of the cases specified in Clause 1, Article 87 of this Code, the Court must appoint the representative to participate in the proceedings at courts.

2. In labor cases where involved parties are those specified in clause 1 of this Article or where the employees are minor persons and they have no representatives and the Courts fail to appoint the employee collective’s representative organization as prescribed in clause 1 of this Article, the Courts shall appoint organization representing collective labor to represent such employees.

Article 89. Termination of the representation in civil procedures

The representatives at law, the proxy representatives in civil procedures shall terminate their representation according to the provisions of the Civil Code.

Article 90. Consequences of the termination of representation in civil procedures

1. In cases where the representation at law terminates while the represented persons have come of age or had their civil act capacity restored such persons shall participate in civil procedures themselves or authorize other persons to participate in civil procedures according to procedures prescribed by this Code.

2. In cases where the proxy representation terminates, the involved parties or their heirs shall participate in civil procedures in person or authorize other persons to participate in the procedures according to the procedures prescribed by this Code.