Chương XIII Bộ luật tố tụng dân sự 2015: Thủ tục hòa giải và chuẩn bị xét xử

Chapter XIII

MEDIATION AND TRIAL PREPARATION PROCEDURES

Article 203. Time limit for trial preparation

1. The time limits for preparation for trial over cases of various types, except for cases resolved under simplified procedures or cases involving foreign elements are specified as follows:

a) For the cases prescribed in Articles 26 and 28 of this Code, the time limit shall be 04 months counting from the day on which the cases are accepted;

b) For the cases prescribed in Articles 30 and 32 of this Code, the time limit shall be 02 months counting from the day on which the cases are accepted.

For complicated cases, or when due to force majeure events or objective obstacles, the Chief Justices of Courts may decide to extend the trial preparation time limits but for not more than 02 months for cases prescribed in Point a of this clause and 01 month for cases prescribed in Point b of this clause.

If there are decisions on suspension of case resolution, the time limit for trial preparation shall be calculated from the day on which the decisions to resume the case resolution issued by the Courts take legal effect.

2. In the process of trial preparation, the Judge shall carry out the following tasks and power:

a) Set up the case files as prescribed in Article 198 of this Code;

b) Determine the status of the involved parties and other participants in the procedure;

c) Determine the disputing relationship between involved parties and the applicable law provisions;

d) Examine objective details of the cases;

dd) Verify the cases and collect evidences according to the regulations in this Code;

e) Apply provisional emergency measures;

g) Hold meetings for checking the handover of, access to and disclosure of evidences and mediating according to provisions of this Code, except for cases resolved under simplified procedures;

h) Fulfill other tasks and power as prescribed in this Code.

3. Within the trial preparation time limits prescribed in Clause 1 of this Article, the Judges shall, on a case-by-case basis, issue one of the following decisions:

a) To recognize the agreement between the involved parties;

b) To suspend the resolution of the civil lawsuit;

c) To terminate the resolution of the civil lawsuit;

d) To bring the case to trial.

4. Within 01 month from the day on which the decision to bring the case to trial is issued, the Court must open a Court session. In case of good and sufficient reason, this time limit shall be 02 months.

Article 204. Documenting civil lawsuits’ files

1. A civil lawsuit’s file shall include the petition and all the materials and evidences provided by involved parties and other participants; materials and evidences collected by the Courts that are related to the case; procedural documents of the Courts and the Procuracies about the resolution of such civil lawsuit.

2. All papers and documents in the civil-case file must be numbered and arranged by date. Newer papers shall be put above the older ones; such papers shall be managed, retained and used according to law provisions.

Article 205. Principle for conducting mediation

1. During the period of preparation for the first-instance trial over cases, the Courts must carry out mediation for the involved parties to reach agreement on the resolution of the cases, except cases which must not be mediated or cannot be mediated as stipulated in Articles 206 and 207 of this Code or cases settled under simplified procedures.

2. The mediation must be conducted on the following principles:

a) Respect for the voluntary agreement of the involved parties, non-use of force or non-threat to use force to compel the involved parties to reach agreements against their will;

b) The contents of agreements between the involved parties must not contravene law and social ethics.

Article 206. Civil lawsuits which must not be mediated

1. Claims for compensation for damage caused to State properties.

2. Civil lawsuits arising from civil transactions which are contrary to law or social ethics.

Article 207. Civil lawsuits which cannot be mediated

1. The defendants or the persons with relevant interests and duties are intentionally absent though having been duly summoned twice by courts.

2. The involved parties cannot take part in the mediation for plausible reasons.

3. The involved parties being wives or husbands in divorce cases have lost their civil act capacity.

4. One of involved parties applies for non-mediation.

Article 208. Notification about meetings for checking the handover of, access to and disclosure of evidences and mediating

1. The Judges shall hold meetings for checking the handover of, access to and disclosure of evidences and mediating between involved parties. Before holding the meetings, the Judges shall notify the involved parties, their lawful representatives and defense counsels of their rights and interests of time, venue and contents of the meetings.

2. If the mediation over the civil lawsuits as cannot be conducted as prescribed in Articles 206 and 207 of this Code, the Judge shall hold the meetings for checking the handover of, access to and disclosure of evidences without mediation.

3. Regarding marriage and family cases involving minors, before hold the meetings for checking the handover of, access to and disclosure of evidences and mediating between involved parties, the Judges and/or Ombudspersons assigned by the Courts shall collect materials and evidences to determine reasons for the arising of the disputes. When it is deemed necessary, the Judges may refer to opinions of family affair authorities and children affair authorities about the situations of the families, reasons for the arising of disputes and the expectation of the wives, husbands and children related to the cases.

Regarding disputes over child rearing after divorces or change of post-divorce child custodian, the Judges shall depend on the expectation of the children who are underage and not younger than 7; when it is deemed necessary, representatives of family affair authorities and children affair authorities shall witness and contribute opinions. The collection of expectation of underage children and the conduct of other procedures for minors must be friendly, suitable for the psychology, age, mature level and the awareness of the minors, ensuring legitimate rights and interests and personal secret of minors.

Article 209. Participants in meetings for checking the handover of, access to and disclosure of evidences and mediating

1. Participants in the meetings shall include:

a) The meeting presiding Judge;

b) Court clerks in charge of writing up meeting minutes;

c) Involved or lawful representatives of involved parties;

d) Representatives of employee collective’s representative organizations, applicable to labor cases, at the request of employees, excluding labor cases where employee collective’s representative organizations or defense counsels of rights and interests of employees’ collectives/employees attend as representative organizations of employees’ collective. If the representatives of employee collective’s representative organizations do not attend the meeting for mediating, written opinions must be submitted;

dd) Defense counsels of rights and interests of involved parties (if any);

e) Interpreters (if any).

2. W hen it is deemed necessary, the Judges shall request relevant individuals, agencies and organizations to participate in the meetings; for cases pertaining to marriage and families, the Judges shall request representatives of family affair authorities, children affair authorities and/or Vietnam Women's Union to participate in the meetings; if they are absent, the meetings shall be still conducted.

3. In cases where any of involved parties is absent but involved parties who attend agree to conduct the meetings and such meetings do not affect rights and obligations of absent involved parties, the Judges shall conduct meetings between involved parties who attend; if involved parties request to postpone the mediation meeting until all involved parties attend, the Judge must follow their request. The Judges must notify the involved parties of such postponement and the resuming of the meetings.

Article 210. Order of meetings for checking the handover of, access to and disclosure of evidences and mediating

1. Before conducting the meetings, Court clerks shall report the Judges about the absence and attendance of participants in the meetings that had received notifications from the Courts. The Judges presiding over the meetings shall recheck the attendance and ID cards of participants then provide involved parties with information about their rights and obligations according to provisions of this Code.

2. When checking the handover of, access to and disclosure of evidences, the Judges shall announce materials and evidences in case files and ask the involved parties about the following matters:

a) Requests and scope of lawsuit, the amendment, supplement, modification and withdrawal of petitions for initiating lawsuits, counter-claims, independent claims; matters that have been and have not been agreed to be resolved by the Courts;

b) Materials and evidences that have been submitted to the Courts and the delivery of materials and evidences to other involved parties;

c) The amendment of materials/evidences; requests for collection of materials and evidences by the Courts; requests for summon of other involved parties by the Courts, witnesses and other participants at the Court sessions;

d) Other matters that the involved parties deem to be necessary.

3. When involved parties finished their presentations, the Judges shall review opinions and consider resolving requests of involved parties specified in clause 2 of this Article. If the persons summoned by the Courts are absent, the Courts shall notify them of the results of the meetings.

4. Procedures for mediation:

a) The Judges disseminate to involved parties the provisions of laws related to the resolution of the cases so that involved parties can relate them with their rights and obligations and analyze legal consequence of the success of the mediation then voluntarily reach agreements with each other about the resolution of the cases;

b) Plaintiff and defense counsels of their legitimate rights and interests make presentations of the disputes, make amendment of petitions for initiating lawsuits; grounds for protecting the petition and express opinions about matters to be mediated and resolution of the cases (if any);

c) Defendants and defense counsels of their legitimate rights and interests make presentations of the claims of the plaintiffs and about counter-claims (if any); grounds for protesting against the petition of the plaintiffs; grounds for defending their counter claims and express opinions about matters to be mediated and resolution of the cases (if any);

d) Persons with relevant interests and duties, defense counsels of their legitimate rights and interests express their opinions about the claims of the plaintiffs and the defendants; present their independent claims (if any); grounds for protesting against the claims of the plaintiffs and the defendants; grounds for protecting their independent claims and express opinions about matters to be meditated and resolution of the cases (if any);

dd) Other participants in the mediation meetings (if any) express their opinions;

e) When involved parties and defense counsels of their legitimate rights and interests have expressed their opinions, the Judges shall determined matters that involved parties have or have not agreed about and request involved parties to make additional presentation about unclear and not agreed contents;

g) The Judges shall make conclusion of those which involved parties have agreed or not agreed about.

Article 211. Minutes of meetings for checking the handover of, access to and disclosure of evidences and mediating

1. Court clerks shall be in charge of formulating minutes of meetings for checking the handover of, access to and disclosure of evidences and for mediating.

2. Minutes of the checking the handover of, access to and disclosure of evidences must contain the following contents:

a) Date of meeting;

b) Place of meeting;

c) The participants in the meeting;

d) Opinions of involved parties or lawful representatives of involved parties about contents specified in clause 2 Article 210 of this Code;

dd) Other contents;

e) Decisions of the Court to accept or not accept claims of involved parties.

3. Minutes of the mediation must contain the following contents:

a) Those specified in points a, b and c clause 2 of this Article;

b) Opinions of involved parties and defense counsels of their legitimate rights and interests of involved parties;

c) Contents have or have not been agreed by involved parties.

4. The minutes must bear the signatures or fingerprints of all participants in the meetings, signatures of the Court clerks in charge of making minutes and of the presiding Judges of the meetings. Participants in the meetings may have a look at the minutes immediately when the meetings finish and may request for amendment and supplement to the minutes before appending signatures or fingerprints.

5. If involved parties reach agreements about matters to be resolved in civil lawsuits, the Courts shall make minutes of successful mediation. Such minutes shall be immediately sent to involved parties participating in the mediation.

Article 212. Issuing decisions to recognize the agreements of the involved parties

1. Upon the expiry of the 07-day time limit after making the records on successful mediation, if no parties change their opinions on such agreement, the Judge who presides over the mediation session or another Judge who has been assigned by the court's Chief Justice shall issue a decision recognizing the agreement of the involved parties.

Within 05 working days after the issuance of the decision to recognize the agreement of the involved parties, the Court must send the decision to the involved parties and the procuracy of the same level.

2. The Judge shall only issue a decision to recognize the agreement of the involved parties if they have reached an agreement on the resolution of the whole case.

3. In the cases stipulated in Clause 4 of Article 210 of this Code, where the present parties have reached agreement on the settlement of their case, such agreement shall be valid only for the present persons and shall be recognized by the Judge in a decision if it does not affect the rights and obligations of the absent parties. In cases where such agreement affects the rights and obligations of the absent parties, it shall be valid and recognized by the Judge in a decision only if it is accepted in writing by the parties that are absent from the mediation session.

Article 213. Effect of decisions to recognize the involved parties' agreements

1. The decisions to recognize the involved parties' agreements shall take effect immediately after they are issued and are not appealed against according to the appellate procedures.

2. The decisions to recognize the involved parties' agreements may be appealed against according to the cassation procedures only if there are grounds to believe that such agreements were reached as a result of mistakes, deceptions, intimidation, force or they contravene law or social ethics.

Article 214. Suspension of the resolution of civil lawsuits

1. The Court shall issue a decision to suspend the resolution of a civil lawsuit in one of the following cases:

a) The involved parties being individuals have died or being agencies or organizations have been merged, divided, separated or dissolved without any agencies, organizations or individuals inheriting their procedural rights and obligations;

b) One involved party being an individual has lost his/her civil act capacity or being a minor while his/her representative at law has not been determined yet;

c) The lawful representative of an involved party terminates without a replacement;

d) The results of resolution of another related case or matter, which, as required by law, must be settled by other agencies or organizations before the cases are resolved, need to be waited for;

dd) The results of the request for judicial assistance, entrustment of evidence collection or materials or evidences sent from agencies/organizations at the request of the Court need to be waited for;

e) The results of the processing of legislative documents, which, related to the case resolution denote violations against a Constitution, Law or Resolution of National Assembly, Ordinance or Resolution of the Standing committee of the National, legislative documents of superior regulatory agencies to which the Court have sent written recommendations for consideration for amendment, supplement or annulment, need to be waited for;

g) The case is mentioned in Article 41 of the Law on Bankruptcy;

h) Other circumstances prescribed by law.

2. Within 03 working days from the day on which the decisions to suspend the resolution of civil lawsuits are issued, the Courts must send such decisions to the involved parties, the agencies/organizations/individuals initiating lawsuits and the procuracies of the same level.

Article 215. Consequences of the suspension of resolution of civil lawsuits

1. The Court must not delete the names of suspended civil lawsuits from the case acceptance books but only note down the number and date of the decisions to suspend the resolution of such civil lawsuits in the case acceptance books.

2. The Court fee advances and Court fees paid by the involved parties shall be deposited at the State Treasury and handled when the Courts proceed with the resolution of the civil lawsuits.

3. For the cases of suspension prescribed in point e clause 1 Article 214 of this Code, before the suspension, the Chief Justices of the Courts in charge of the cases must make a writing requesting the Chief Justices of the Supreme People’s Court to recommend the competent agencies to consider amending, supplementing or annulling legislative documents denoting contrary to the Constitution, law, resolution of National Assembly, ordinance or resolution of the Standing committee of the National Assembly or legislative documents of superior regulatory agencies as prescribed in Article 221 of this Code.

Within 01 month from the day on which the written recommendations from the Courts are received, competent agencies must make a written response. After such period, if the competent agencies fail to issue the response, the Courts shall continue the case resolution according to the common procedures.

4. During the suspension period of the case resolution, the Judges assigned to resolve the cases must be still responsible for the case resolution.

When the decisions on suspension of the case resolution prescribed in clause 1 Article 214 of this Code have been issued, the Judges assigned to resolve the cases shall supervise and expedite agencies, organizations and individuals to as soon as possible eliminate the problems leading to such suspension to promptly settle the cases.

5. Decisions to suspend the resolution of the civil lawsuits may be appealed against under appellate procedures.

Article 216. Decisions on resuming the resolution of civil lawsuits

Within 03 working days from the day on which the reasons to suspend the resolution of civil lawsuits prescribed in Article 214 of this Code are resolved, the Courts must issue decisions to resume the case resolution and send such decisions to the involved parties, the agencies/organizations/individuals initiating lawsuits and the procuracies of the same level.

Decisions on suspension of civil lawsuit’s resolution shall expire since the decisions on resuming of civil lawsuit’s resolution are issued. The Courts shall resume resolving the cases since the decisions on resuming of civil lawsuit’s resolution are issued.

Article 217. Termination of the resolution of civil lawsuits

1. After accepting cases which fall within their respective jurisdiction, the Courts shall issue decisions to terminate the resolution of the civil lawsuits in the following circumstances:

a) The plaintiffs or defendants being individuals have died while their rights and obligations are not inherited;

b) Agencies or organizations have been dissolved or are bankrupt without any agencies, organizations or individuals inheriting their procedural rights and obligations;

c) The litigators withdraw all petitions for initiation of lawsuits or the plaintiffs are absent though having been duly summoned twice, unless they apply for trials in their absence or a force majeure event or an objective obstacle occurs;

d) The Courts have issued decisions to open bankruptcy procedures for enterprises or cooperatives being a party to the cases and the resolution of such cases is related to the obligations and property of such enterprises or cooperatives;

dd) plaintiffs fail to advance the charges for property price appraisal and other procedural charges prescribed in the Code.

If the defendants with counter-claims or persons with relevant interests and duties with independent claims fail to advance the property price appraisal and other procedural charges as prescribed in this Code, the Courts shall terminate the resolution of counter-claims or the independent claims of the persons with relevant interests and duties;

e) The involved parties have requested to apply the statute of limitations before the first-instance Courts issue the judgments/decisions on case resolution and the statute of limitations for lawsuit initiation expire;

g) Cases prescribed in clause 1 Article 192 of this Code that have been accepted by the Courts;

h) Other circumstances prescribed by law.

2. If the plaintiffs withdraw all petitions for lawsuit initiation or are absent without good and sufficient reasons or do not apply for trials in their absence though have been duly summoned twice and there are defendants applying for counter-claims and/or persons with relevant interests and duties applying for independent claims, the cases shall be resolved as follows:

a) If the defendants withdraw all the counter-claims and/or persons with relevant interests and duties withdraw all the independent claims, the Courts shall issue decisions to terminate the resolution of the cases;

b) If the defendants do not withdraw or withdraw only a part of the counter-claims, the Courts shall issue decisions to terminate the resolution of the petitions for lawsuits of plaintiffs; then the defendants shall become the plaintiffs and vice versa;

c) If the defendants withdraw all the counter-claims, persons with relevant interests and duties do not withdraw or withdraw only a part of the independent claims, the Courts shall issue decisions to terminate the resolution of the petitions for lawsuits of plaintiffs and/or counter-claims of defendants; then the persons with relevant interests and duties shall become the plaintiffs, persons who are sued according to independent claims shall become the defendants;

3. The Courts shall make decisions to terminate the resolution of civil lawsuits and cross out the civil cases in the acceptance books and return the petitions and accompanied materials and evidences to involved parties on request; in such cases, the Courts must make and retain copies of such petitions, documents and evidences to serve as basis for resolution of appeals and recommendations on request.

Within 03 working days from the day on which decisions to terminate the resolution of civil lawsuits are issued, the Courts shall send such decisions to involved parties, agencies, organizations and individuals initiating the lawsuits and procuracies of the same levels.

4. Regarding cases that are re-settled according to first-instance procedures, immediately when decisions to conduct cassation or reopening trials have been issued, if the Courts decide to terminate the resolution of the cases, the Courts shall also resolve the consequences of the enforcement of judgments and other relevant matters (if any); if the plaintiffs withdraw the petitions or are absent though have been duly summoned twice, the termination of the resolution of the cases must be agreed by the defendants and persons with relevant interests and duties.

Article 218. Consequences of the termination of resolution of civil lawsuits

1. When the decisions to terminate the resolution of civil lawsuits are issued, the involved parties shall not be entitled to initiate lawsuits to request the Courts to re-settle such civil lawsuits if the institution of the subsequent cases does not bring in any difference from the previous cases in terms of the plaintiff, defendant and the disputed legal relations, except for cases prescribed in clause 3 Article 192, point c clause 1 Article 217 of this Code and cases otherwise provided for by law.

2. In cases where the Courts issue decisions to terminate the resolution of civil lawsuits as provided for in points a and b Clause 1, Article 217 of this Code or because the plaintiffs are absent though have been duly summoned twice as prescribed in point c clause 1 Article 217 of this Code, the Court fee advance money paid by the involved parties shall be confiscated by the State for public fund.

3. In cases where the Court issue decisions to terminate the resolution of civil lawsuits because the litigators withdraw all petitions for lawsuit initiation as provided for in point c and other cases specified in points d, dd, e and g clause 1 Article 217 of this Code, the Court fee advance money paid by the involved parties shall be refunded to the payers.

4. The decisions to terminate the resolution of civil lawsuits may be appealed against under appellate procedures.

Article 219. Competence to issue decisions to suspend, resume or terminate the resolution of civil lawsuits

1. Before the opening of the trial, the Judges who are assigned to resolve the civil lawsuits shall be competent to issue decisions to suspend/resume/terminate the resolution of such civil lawsuits.

2. In the Court session, the trial panels shall be competent to issue decisions to terminate/resume/terminate the resolution of the civil lawsuits.

Article 220. Decisions to bring cases to trial

1. A decision to bring a case to trial shall contain the following principal details:

a) Date of issue of the decision;

b) Name of the Court issuing that decision;

c) The case to be brought to trial;

d) Name and address of the plaintiff, defendant or agency/organization/individuals initiating the lawsuit prescribed in Article 187 of this Code and persons with relevant interests and duties;

dd) Full names of the Judge, People’s Juror, Court clerk and full names of the alternate Judge or alternate People’s Juror (if any);

e) Full name of the procurator who takes part in the Court session, full name of alternate procurator (if any);

g) Time, date and venue of the Court session;

h) Public trial or closed trial;

i) Full names of persons who are summoned to the Court session.

2. Decisions to bring the cases to trial must be sent to the involved parties and the procuracies of the same level immediately within 03 working days from the day on which they are issued.

Where the procuracies participate in Court sessions as provided for in Clause 2, Article 21 of this Code, the Courts must send the case files and the decisions to bring a case to trial to the procuracies of the same level. Within 15 days from the day on which the documents are received, the procuracies must study then return the files to the courts.

Article 221. Discovery and recommendation for amendment, supplement or annulment of legislative documents

1. During the course of civil lawsuit’s resolution, if a legislative document related to the resolution of a civil lawsuit denotes contrariness against a Constitution, law or resolution of National Assembly, ordinance, resolution of Standing committee of National Assembly or a legislative document of a superior regulatory agency, the Court shall handle as follows:

a) If not any decisions to bring the case to trial is issued, the Judge assigned to resolve the case shall make a report and request the Chief Justice of the Court being in charge of the case to issue a writing requesting the Chief Justice of the Supreme People’s Court to recommend a competent agency to consider amending, supplementing or annulling a legislative document;

b) If a decision to bring the case to trial has been issued or the case is being examined at the Court trial or is being adjudicated according to cassation/reopening procedure, the trial panel shall suspend the trial as prescribed in point e clause 1 Article 259 of this Code and report the case to the Chief Justice of the Court being in charge of the case so that he/she shall issue a writing requesting the Chief Justice of the Supreme People’s Court to recommend a competent agency to consider amending, supplementing or annulling a legislative document.

2. Within 15 days from the day on which the written request by the Chief Justice of the inferior Court is received, the Chief Justice of the Supreme People’s Court shall consider and handle as follows:

a) If the request is well-grounded, a written recommendation shall be issued and sent to the competent agency requesting for amendment, supplement or annulment of the legislative document and a notification shall be sent to the requesting Court so that it issues a decision to suspend the case resolution;

b) If the request is groundless, a written response shall be sent to the requesting Court so that it continues the case resolution according to law provisions.

3. Agencies receiving recommendation of the Court about the amendment, supplement or annulment of legislative documents shall handle as follows:

a) Regarding legislative documents detailing and/or guiding Constitutions, laws or resolutions of National Assembly or ordinances or resolutions of Standing Committee of National Assembly or legislative documents of superior regulatory agencies, within 01 month from the day on which the recommendation made by the Chief Justice of the Supreme People’s Court is received, the agency issuing such documents must consider and send written response to the Supreme People’s Court. When such time limit expires, if not any written response is received, the Court shall resolve the case pursuant to the documents with higher-level effect;

b) Regarding legislative documents being laws or resolutions of National Assembly or ordiances or resolutions of Standing committees of National Assembly, the provisions of the Law on promulgation of legislative documents shall be applied.