Chương VII Bộ luật tố tụng dân sự 2015: Chứng minh và chứng cứ

Chapter VII

PROOFS AND EVIDENCES

Article 91. Obligations to prove

1. The involved parties who petition the Courts to protect their legitimate rights and interests must collect, introduce and supply the Courts with materials and evidences to prove that such petitions are well-grounded and lawful, except for the following cases:

a) Litigators are customers who are not required to prove faults of organizations and individuals trading goods and/or services Organizations and individuals trading goods/services that are sued shall be obliged to prove that they have no fault that leads to the damage as provided for in the Law on consumers’ right protection;

b) Involved parties being employees in labor cases fail provide or supply the Courts materials and evidences because such materials/evidences are being under the management and retention of employers, thus the employers shall provide and supply such materials and evidences to the Courts.

If an involved party initiating a lawsuit over the unilateral termination of a labor contract in case where the employer is not allowed to have the right to unilaterally terminate the labor contract or where the employer fails to enforce labor discipline on the employee as prescribed in legislation on labor, the obligation to prove must be fulfilled by the employer;

c) Other cases where there are other law regulations on obligations to prove.

2. The involved parties that protest against other persons' claims against them must present in writing and must collect, introduce and supply the Courts with materials and evidences to prove such protests.

3. Agencies, organizations and individuals that initiate lawsuit to protect public interests, the State’s interests, or petition Courts to protect others' legitimate rights and interests must collect, provide and supply the Courts with evidences to prove that their lawsuits or petitions are well-grounded and lawful.

Social organizations that protect interests of the consumers do not have the obligation to prove the faults of organizations/individuals trading goods/services according to the Law on protection of customer’s rights.

4. If the involved parties that are obliged to introduce evidences to prove but fail to introduce evidences or fail to introduce adequate evidences, the Courts shall resolve the civil cases according to the collected evidences in the dossier about the cases.

Article 92. Details and facts that are not required to be proved

1. The following details and facts are not required to be proved:

a) Details and facts that are clear and come to everyone's knowledge and are accepted by courts;

b) Details and facts that have been identified in the Court judgments or decisions which are legally effective or in decisions of competent State bodies which have come into force;

c) Details and facts that have been recorded in writing and have been notarized or authenticated. If there is any suspicion of the objectiveness of such details/facts or the objectiveness of the notarized/authenticated writing, the Judge may request the involved parties or the notarizing/certifying agencies to present the original copies.

2. If either involved party acknowledges or does not protest against the details, facts, materials, conclusions issued by specialized agencies and given by the other involved party, the latter is not required to prove them.

3. If an involved party has a representative to participate in the procedures, that representative's acknowledgement shall be regarded as the acknowledgement of such involved party if it does not exceed the representative scope.

Article 93. Evidences

Evidences in civil cases are factual things which are handed to Courts by involved parties, agencies, organizations or individuals or gathered by Courts according to the order and procedures prescribed by this Code and are used by Courts as bases to determine objective details of the cases as well as to determine whether the involved parties' claims or protests are well grounded and lawful or not.

Article 94. Sources of evidence

Evidences are gathered from the following sources:

1. Readable, audible or visible materials, electronic data;

2. Exhibits;

3. Involved parties' testimonies;

4. Witnesses' testimonies;

5. Expertising conclusions;

6. On-site appraisal minutes;

7. Property evaluation and price appraisal results;

8. Written records of legal facts or acts that are formulated by functional persons;

9. Notarized/authenticated documents;

10. Other sources prescribed by law.

Article 95. Identifying evidences

1. Contents-readable materials shall be regarded as evidences if they are originals or copies lawfully notarized or authenticated or supplied and certified by competent agencies or organizations.

2. Audible, visible materials shall be regarded as evidences if they are presented together with documents about the origins of such materials (applicable to materials recorded by the presenting persons themselves) or the documents certified by the one providing such materials for the presenting persons about the origins of those materials or documents related to such audio and/or video recording.

3. Electronic data shall be presented in form of exchange of electronic data, electronic invoices, electronic mails, telegram, telegraphy, facsimile and other similar forms according to legislation on electronic transactions.

4. Exhibits to be regarded as evidences must be the original and related to the cases.

5. Involved parties' testimonies, witnesses' testimonies shall be regarded as evidences if they are recorded in writing or in audio-tapes, audio-discs, or video-tapes or discs or other audio or image recording devices as provided for in Clause 2 of this Article, or are given orally in Court sessions.

6. Expertising conclusions shall be regarded as evidences if the expertise is conducted in accordance with the procedures prescribed by law.

7. On-site appraisal minutes shall be regarded as evidences if the appraisal is conducted in accordance with the procedures prescribed by law.

8. Property evaluation results and price appraisal results shall be regarded as evidences if the evaluation/appraisal is carried out in accordance with the procedures prescribed by law.

9. Written records of legal facts or acts that are formulated on site by functional persons shall be regarded as evidences if the formulation of such records is carried out according to the procedures prescribed by law.

10. Notarized/authenticated documents shall be regarded as evidences if the notarization/authentication is conducted according to the procedures prescribed by law.

11. Other sources prescribed by law shall be determined to be evidences according to requirements and procedures prescribed by law.

Article 96. Hand-over of materials and evidences

1. During the process of resolving civil cases by courts, the involved parties shall have the rights and obligations to hand over materials and evidences to the courts. If the handed materials/evidences are inadequate to form the base for resolution of the matters/cases, the Judge shall request the involved parties to supplement the materials/evidences. If the involved parties fail to hand over the materials/evidences or do not hand over adequately the materials/evidences requested by the Courts, the Courts shall resolve the civil cases pursuant to the materials and evidences handed over by the involved parties and those collected by the Courts according to regulations in Article 97 of this Code.

2. The hand-over of materials/evidences to Courts by involved parties must be recorded in the minutes. The minutes must clearly state the appellations, forms, contents, characteristics of the materials/evidences; the number of copies, the number of pages and time of reception; the signatures or append finger prints of the deliverers, the signatures of the recipients and seals of the courts. The minutes must be made in two copies, one of which shall be incorporated in the civil case files and the other shall be handed to the involved parties handing over the evidences.

3. The materials/evidences submitted in ethnic minority languages or foreign languages to Courts by the involved parties must be enclosed with their Vietnamese translations that are lawfully notarized or authenticated.

4. Deadline for handing over materials and evidences shall be defined by the Judges in charge of the cases provided that such time does not exceed the duration of preparation for adjudication according to first-instance procedures and/or the duration of preparation for resolution of civil matters according to regulations in this Code.

If the Courts request the involve parties to hand over materials and evidences but the involved parties fail to comply with due to good and sufficient reason and supply the required materials and evidences when decisions to bring the cases to trial according to first-instance procedures and the decisions to hold meetings to resolve the civil matters have been issued, such involved parties must prove the reasons for the lateness of supply of such materials/evidences. Regarding materials and evidences which the Courts did not request the involved parties to supplied or materials and evidences that the involved parties cannot know about during the resolution of the cases according to first-instance procedures, the involved parties may supply and present such materials/evidences in first-instance trial sessions or the meetings for resolving civil matters or later procedural stages of the resolution of such civil cases.

5. When materials and evidences hand over to the Courts, there must be their copies sent to other involved parties or lawful representatives or other involved parties; regarding materials and evidences specified in clause 2 Article 109 of this Code or materials and evidences whose copies cannot be made, written notifications must be sent to other involved parties or lawful representatives of other involved parties.

Article 97. Verification and collection of evidences

1. Agencies, organizations and individuals may collect materials and evidences themselves by taking the following measures:

a) Collecting readable, audible or visible materials, electronic data;

b) Collecting exhibits;

c) Defining witnesses and collecting confirmation of the witnesses;

d) Requesting the agencies, organizations or individuals to allow the copy or to supply the materials related to the resolution of the matters/cases that are kept or managed by such agencies, organizations or individuals;

dd) Requesting the People’s Committees of communes to authenticate the signatures of the witnesses;

e) Requesting the Courts to collect materials and evidences, in case the involved parties cannot do it;

g) Requesting the Courts to issue the decisions on request for expertise or property evaluation;

h) Requesting agencies, organizations and individuals to conduct other tasks as prescribed by law.

2. In cases prescribed by this Code, the Courts may take one or a number of the following measures to collect materials and evidences:

a) Taking testimonies of the involved parties, witnesses;

b) Holding confrontations between involved parties and between involved parties and witnesses;

c) Requesting expertises;

d) Conducting property evaluation;

dd) Conducting on-site inspection and appraisal;

e) Entrusting the collection and verification of documents and evidence;

g) Requesting agencies, organizations and individuals to supply readable, audible and visible materials or other exhibits related to the resolution of civil cases;

h) Verifying the presence or absence of the involved parties at the residence;

i) Other measures according to regulations in this Code.

3. When applying the measures specified in Points c, d, dd, e, and, Clause 2 of this Article, the Judges must issue decisions clearly stating the reasons for the application and the request of the courts.

4. In the process of cassation trial, reopening trial, the Ombudspersons may take the measures specified in points a, g and h clause 2 of this Article.

When the ombudspersons take the measures specified in Points g Clause 2 of this Article, the Courts must issue decisions clearly stating the reasons for the application and the request of the courts.

5. Within 03 working days from the day on which the Courts collected the materials/evidences, the Courts shall notify the involved parties of those materials/evidences so that they can exercise their rights and obligations.

6. The procuracy shall collect materials/evidences to ensure the exercise of appeal jurisdiction according to the appellate, cassation trial or reopening trial procedures.

Article 98. Taking testimonies of involved parties

1. Judges shall take the testimonies of involved parties only when the latter have not yet made the written testimonies or the contents of their written testimonies are insufficient and/or unclear. The involved parties must write the testimonies themselves and sign their names thereon. Where the involved parties cannot write the testimonies by themselves, the Judges shall take their testimonies. The taking of involved parties' testimonies shall only focus on details declared inadequately and/or unclearly by the involved parties. The Judges themselves or the Court clerks shall record the involved parties' testimonies in the minutes. Judges shall take testimonies of the involved parties at the Court offices or outside the Court offices in case of necessity.

2. The minutes recording involved parties' testimonies must be read or heard and signed or fingerprinted by such involved parties. The involved parties may petition amendments and/or supplements to be inscribed in the testimony-recording minutes and sign or fingerprint for certification. The minutes must be signed by the persons who take the testimonies, the minute recorders and affixed with court's seals. If the minutes are made in loose pages, each page must be signed and affixed with seal in both margins. In cases where the minutes of taking the involved parties' testimonies are made outside the Court offices, the testimony taking must be certified by witnesses or by the People's Committees or police offices of communes, wards, townships or by agencies or organizations where the minutes are made.

3. The taking of involved parties' testimonies in one of the cases prescribed in Clauses 4 and 5, Article 69 of this Code must be carried out in the presence of the lawful representatives of such involved parties.

Article 99. Taking testimonies of witnesses

1. At the request of the involved parties or when it is deemed necessary, Judges may take testimonies of witnesses at Court offices or outside Court offices.

Before taking testimonies of witnesses, the Judges must provide the witnesses with information about rights and obligations of witnesses and request the witnesses to undertake the truthfulness of their testimonies.

2. The procedures for taking witnesses' testimonies shall be the same as those for taking the involved parties' testimonies provided for in Clause 2, Article 98 of this Code.

3. The taking of testimonies of witnesses aged not full 18 years, or of persons with limited capacity of exercise or persons with limited cognition or behavior control must be carried out in the presence of their representatives at law or guardians.

Article 100. Confrontation

1. At the request of the involved parties or when contradictions are deemed to have existed in the testimonies of the involved parties or witnesses, Judges may conduct confrontations among the involved parties, between the involved parties and the witnesses or among the witnesses.

2. Confrontations must be recorded in minutes which must be signed by the participants in such confrontations.

Article 101. On-site inspection/appraisal

1. At the request of the involved parties or when it is deemed necessary, the Judges shall carry out on-site inspections/appraisals in the presence of representatives of People’s Committees of communes or Police offices of communes/wards/townships or agencies/organizations where exits the objects which need to be inspected/appraised; the on-site inspections/appraisals must be notified in advance so that the involved parties know and witness such inspections/appraisals.

2. On-site inspections/appraisals must be recorded in minutes. The minutes must clearly state the inspection/appraisal results, clearly describe the sites, contain the signatures of the persons that conduct the inspections/appraisals and the signatures or fingerprints of the involved parties if they are present, of the representatives of the commune-level People's Committees or Police offices of communes/wards/townships or agencies/organizations where exist the to be-inspected/appraised objects and others that are invited to participate in the inspections/appraisals. After completing the minutes, the persons that conduct the inspections/appraisals must request the representatives of the commune-level People's Committees or Police offices of communes/wards/townships or agencies/organizations where exist the objects which need to be inspected/appraised to sign and seal for certification.

3. Any obstruction of the inspection/appraisal is forbidden.

4. If there is any obstruction of the on-site inspection/appraisal, the Judge may request the assistance of People’s Committees of communes or Police offices of communes/wards/townships exist the objects subject to on-site inspection/appraisal.

Article 102. Request for expertise

1. Involved parties may petition Courts to request expertise or request expertise themselves if the involved parties’ applications for referenda for expertise have been rejected by the Courts. The right to apply for expertise shall be exercised before the Courts issued decisions to bring the cases to trial according to first-instance procedures or decisions to hold the meetings for resolving civil matters.

2. At the request of involved parties of when it is deemed necessary, Judges shall decide to conduct referenda for expertise. In decisions to request an expertise, names and addresses of expert-witnesses, objects of expertise, expertise matters and requests that need conclusions of expert-witnesses must be specified.

3. If the expertising conclusions are considered unsatisfactory or contra to law provisions, then according to the petitions of involved parties or when it is deemed necessary, the Courts shall request the expert-witnesses to explain the expertising conclusions, summon the expert witnesses to Court sessions/meetings to directly present about necessary information.

4. At the request of involved parties or when it is deemed necessary, the Courts shall make decisions to conduct referenda for additional expertises if the expertising conclusions are not satisfactory or when new issues relating to details of the cases that have been given expertising conclusions formerly.

5. The re-expertise shall be conducted if there are grounds for presuming that the initial expertise conclusions are inexact and contrary to law or of special cases according to decisions of Chairpersons of the Supreme People’s Procuracy and/or Chief Justices of the Supreme People’s Court according to provisions of the Law on judicial expertise.

Article 103. Requesting expertise of evidences denounced to be forgery

1. Where evidences are denounced to be forgery, the suppliers of such evidences may withdraw them. If not, the denouncers may request the courts, or the Courts decide themselves, to solicit expertises as provided for in Article 102 of this Code.

2. Where the evidence forgery shows criminal signs, the Courts shall transfer the relevant materials and evidences to the competent criminal investigation bodies for consideration according to regulations in laws on criminal procedures.

3. The suppliers of evidences that are concluded to be forged evidences must compensate for damage if the forgery of such evidences causes damage to others and must pay the cost of expertise if the Court decides to request expertise.

Article 104. Property evaluation and price appraisal

1. Involved parties may provide the price of the properties that are being in dispute or reach agreement about the price of the properties that are being in dispute.

2. The parties may reach agreement on the selection of property appraisal organizations to conduct the evaluation of properties and provide the price evaluation results for the Courts.

Properly price appraisal shall be carried out under the law on property price appraisal.

3. Courts shall make decisions on property price assessment and set up Price Assessment Councils in the following cases:

a) At the request of involved parties;

b) Involved parties failed to reach agreement about selection of price assessment organizations or offered prices were different or agreement about prices has not been reached;

c) Parties reach agreements with each other or with price assessment councils the prices which are lower than the market prices of the area where the properties are located at the time of price assessment to evade fulfilling obligations to the State or the third parties or there are grounds proving that the price assessment organizations commit violations against law provisions when conducting price assessment.

4. Procedures for establishment of Price Assessment Council and procedures for price assessment:

a) Price Assessment Councils shall be established by Courts and shall consist of the representatives of financial agencies as the Chairpersons and representatives of relevant specialized agencies as members. Persons who have conducted procedures in such cases and persons specified in Article 52 of this Code must not be members of Price Assessment Councils.

Price Assessment Councils shall conduct assessment only when no members of the Councils are absent. When it is necessary, representatives of People’s Committees of communes where the to be-assessed properties are located shall be invited to witness the assessment. Involved parties shall be priorly notified of time and place of price assessment, shall be entitled to attend and express opinions about the price assessment. Price Assessment Councils shall be entitled to make decisions on prices of the properties which are assessed;

b) Financial agencies and specialized agencies which are relevant shall be responsible for assigning persons to be members of Price Assessment Councils and enable them to fulfill tasks. Persons assigned to be members of Price Assessment Councils shall participate fully the assessment. If financial agencies and/or specialized agencies fail to assign persons to be members of Price Assessment Councils, Courts shall request competent immediate management agencies to direct financial agencies and specialized agencies to fulfill their requests. If persons who are assigned to be members of Prices Assessment Councils are absent without plausible reasons, Courts shall request heads of agencies having assigned such persons shall consider responsibility and appoint replacements and notify the Courts so that the price assessment could be conducted;

c) Price assessment must be recorded into minutes where opinions of each present members and involved parties shall be specified. Decisions of Price Assessment Councils must be approved by more than half of their members. Members of Price Assessment Councils, involved parties and witnesses shall append signatures or fingerprints to the minutes.

5. The re-assessment of property prices shall be conducted when there are grounds for presuming that the results of the first assessment are inexact or unconformable with market prices of places where the properties are located at the time of processing civil lawsuits.

Article 105. Entrusting the collection of evidences

1. In the course of resolving civil cases, a Court may issue a decision to entrust another Court or a competent agency defined in Clause 4 of this Article to take the testimonies of involved parties, and/or witnesses, to conduct on-site appraisals or property evaluations or other measures to gather evidences and to verify details of the civil cases.

2. The entrustment decisions must clearly state the names and addresses of the plaintiffs and the defendants, the disputed relationship and specific entrusted jobs to collect of evidences.

3. The Court that receives the entrustment decision shall have the responsibility to perform the specific assignments within 1 month from the day on which the entrustment decision is received and shall notify in writing the results to the Court that has issued the entrustment decision. In cases where it cannot realize the specific assignments, it must send a written notification of such failure stating clearly the reasons therefor to the Court that has issued the entrustment decision.

4. If the collection of evidences must be carried out overseas, the Courts shall conduct the entrustment procedures through Vietnamese competent agencies or competent agencies of foreign countries that sign International treaty with the Socialist Republic of Vietnam.

5. If the Courts fail to conduct the entrustment as prescribed in clauses 3 and 4 of this Article or the Courts have conducted the entrustment but the results are not sent, the Courts shall lawsuit settlement pursuant to the evidences that have filed in the civil lawsuit dossier.

Article 106. Requesting agencies, organizations and individuals to supply materials and evidences

1. Involved parties may request agencies, organizations and individuals to supply materials and evidences. Any involved parties requesting agencies, organizations and individuals to supply materials and/or evidences shall make a written application clearly stating the to be-supplied materials/evidences; reasons for supply; full names and addresses of individuals, names and addresses of agencies/organizations that are managing or keeping the to be-supplied materials/evidences.

Agencies, organizations or individuals shall supply materials and evidences to involved parties within 15 days from the day on which the requests are received; otherwise, written responses containing explanation shall be made and sent to the requesters.

2. Where the involved parties that have applied necessary measures to gather evidences still fail to gather by themselves, they may request the Courts to issue decision requesting agencies, organizations or individuals keeping or managing the materials/evidences to supply those materials/evidences or request the Courts to collect materials/evidences in order to ensure the proper resolution of civil cases.

The involved parties that request the Courts to gather materials/evidences shall make written applications clearly stating the point(s) to be proved, the evidence to be gathered, the reasons why they cannot gather the evidences by themselves; full names and addresses of the individuals, agencies or organizations that are managing or keeping the evidences which need to be collected.

3. When there are requests of involved parties or when it is deemed necessary, the Courts shall issue decisions requesting agencies, organizations and individuals that are managing or keeping the materials/evidences to supply those materials/evidences to the Courts.

Agencies, organizations and individuals managing or keeping the materials/evidences have the responsibility to supply adequately materials and evidences at the request of the Courts within 15 days from the day on which the requests are received; after such time limit, if such agencies, organizations or individuals fail to supply adequately materials and evidences at the request of the Courts, they shall make written responses containing explanation. Any agencies, organizations or individuals failing to comply with the requests of the Courts without good and sufficient reasons shall be administratively sanctioned or shall face criminal prosecution as prescribed by law, depending on nature and severity of the violations. The administrative penalties or criminal prosecution as prescribed by law imposed on the agencies, organizations or individuals shall not mean the exemption from supply of materials/evidences to the Courts.

4. If the procuracies request the materials/evidences, the agencies, organizations and individuals shall comply with regulations in clause 3 of this Article.

Article 107. Preserving materials and evidences

1. If materials/evidences have been handed over at courts, the preservation of such materials/evidences shall rest with the courts.

2. If materials/evidences cannot be handed over at courts, the preservation of such materials/evidences shall rest with the materials/evidence keepers.

3. Where it is necessary to hand over materials/evidences to the third persons for preservation, Judges shall issue decisions and make minutes of the hand-over to those persons for preservation. The persons undertaking the preservation must sign the minutes, be entitled to remuneration and bear the responsibility for preserving such materials/evidences as prescribed by law.

4. Any destruction of materials/evidences shall be strictly forbidden.

Article 108. Assessing evidences

1. The assessment of evidences must be objective, comprehensive, adequate and accurate.

2. Courts must assess evidences one by one, the link between evidences and determine the lawfulness, the relevance and the proving capacity of every evidence.

Article 109. Disclosing and using materials and evidences

1. Any evidence shall be publicly and equally disclosed and used, except for cases specified in Clause 2 of this Article.

2. Courts shall not disclose material/evidence contents related to State secrets, fine customs and practices of the nation, professional secrets, business secrets, family secrets or secrets of individuals' private lives at the legitimate requests of the involved parties; however, Courts shall notify the involved parties of the materials/evidences that must not be disclosed.

3. Proceeding officers and procedure participants must keep secret, as provided for by law, materials and evidences specified in Clause 2 of this Article.

Article 110. Protecting evidences

1. Where evidences are being destroyed or are in danger of being destroyed or are hard to be gathered in the future, the involved parties may request the Courts to decide to apply necessary measures to preserve the evidences. The requests of the involved parties must be made in writing. The Courts may decide to apply one or several of the measures including sealing, keeping, photographing, audio-recording, video-recording, restoration, examination, minutes making and other measures.

2. Where witnesses are cheated, threatened, compelled or bought off for the purpose of not supplying evidences or supplying untruthful evidences, the Courts shall have the right to issue decisions to force the persons who have committed acts of cheating, threatening, compelling or buying off the witnesses to terminate their acts. Where the acts show criminal signs, the Courts shall request procuracies to examine the penal liability.