Chương XV Bộ luật tố tụng dân sự 2015: Tính chất của xét xử phúc thẩm và kháng cáo, kháng nghị bản án, quyết định của tòa án cấp sơ thẩm

Chapter XV

NATURE OF APPELLATE TRIAL AND THE APPEAL AGAINST JUDGMENTS, DECISIONS OF FIRST-INSTANCE COURTS

Article 270. Nature of appellate trial

Appellate trial means the re-trial by the appellate Court of a case with the first-instance court's judgment or decision having not yet taken legal effect and being appealed against.

Article 271. Persons having the right to appeal

The involved parties or their representatives, agencies, organizations or individuals initiating lawsuits shall have the right to lodge their appeals against judgments or decisions of the first-instance Courts to suspend or terminate the resolution of lawsuits in order to request the appellate Courts to conduct re-trials according to the appellate procedures.

Article 272. Application for an appeal

1. When exercising his/her right to appeal, the appellant shall formulate an application for appeal. An application for an appeal must have the following principal contents:

a) Date on which the application is made;

b) Name, address; phone number, fax number, e-mail address (if any) of the appellant;

c) The section of judgment or decision of the first-instance Court which has not yet taken legal effect and is appealed;

d) The reason(s) for appealing and the appellant's claims.

dd) Signature or fingerprint of the appellant.

2. Any appellant being individual who has fully civil procedure act capacity may formulate application for appeal himself/herself. Regarding the blanks for name and address of the appellant on the application form, full name, address, phone number, fax number, e-mail address (if any) of the appellant must be written. At the end of the application form, the appellant must append his/her signature or fingerprint.

3. For appellant specified in clause 2 of this Article, if the appellant cannot apply for appeal himself/herself, he/she may authorize a representative to conduct the application for appeal. Regarding the blanks for name and address of the appellant on the application form, full name and address of the proxy representative of the appellant; phone number, fax number, e-mail address (if any) of the appellant must be written and the written authorization for conduct application for appeal must be enclosed therewith. At the end of the application form, the proxy representative of appellant must append his/her signature or fingerprint.

4. Lawful representatives of involved parties being agencies or organizations may make appeal themselves. Regarding the blanks for name and address of the appellant on the application form, names, addresses, phone numbers, fax numbers, e-mail addresses (if any) of the involved parties being agencies, organizations and full names and positions of the lawful representatives of the involved parties being must be written. At the end of the application form, the lawful representatives must append signature and affix seal of such agencies/organizations; if the appellant is an enterprise, the seal shall be used according to provisions of the Law on Enterprise.

If the lawful representatives of involved parties being agencies/organizations authorize other persons to conduct appeal, at the blanks for name and address of the appellant on the application form, full names and addresses of the lawful representatives of such agencies/organizations; phone numbers, fax numbers, e-mail addresses (if any) of the agencies/organizations; full names, positions of lawful representatives of such agencies/organizations must be written and written authorizations must be enclosed therewith. At the end of the application form, the proxy representative of appellant must append his/her signature or fingerprint.

5. The lawful representatives of the involved parties being minors or legally incapacitated persons may formulate application for appeal by themselves. At the blanks for name and address of the appellant on the form, full names and addresses of the lawful representatives; full names and addresses of involved parties being minors or legally incapacitated persons must be written. At the end of the application form, the proxy representatives of appellant must append their signatures or fingerprints.

If the lawful representatives of involved parties authorize other persons to conduct appeal, at the blanks for name and address of the appellant on the application form, full names and addresses of the authorized representatives; full names and addresses of the lawful representatives of the involved parties; full names and addresses of involved parties being minors or legally incapacitated persons must be written and the written authorization must be enclosed therewith. At the end of the application form, the proxy representatives of appellant must append their signatures or fingerprints.

6. The authorization specified in clauses 3, 4 and 5 of this Article must be carried out under written authorizations that are lawfully notarized and authenticated, except for cases where such authorizations are formulated under the witness of the Judges or persons assigned by the Chief Justices. The written authorizations must contain the contents of the judgments/decisions on suspension/termination of the cases issued by the first-instance Courts that the involved parties authorized the proxy representatives to file appeals against.

7. The appeal application must be filed with the first-instance Court which rendered the first-instance-judgment or decision being appealed against. Where the appeal application is filed with the appellate Court, the appellate Court must transfer the application to the first-instance Court for carrying out necessary procedures and sending the case file to the appellate Court as provided for in this Code.

8. The appeal application must be accompanied with additional materials and/or evidences (if any) to prove that their appeals are well-grounded and lawful.

Article 273. Time limit for an appeal

1. The time limit for an appeal against the first-instance court's judgment is 15 days as from the date of judgment pronouncement; for the involved parties or representatives of agencies/organizations/individuals initiating lawsuits being absent from the Court sessions or absent when the Court pronounces the judgment with good and sufficient reason, the time limit for an appeal shall be counted from the date the judgment is handed to them or publicly posted up.

For cases where involved parties, representatives of agencies/organizations/individuals initiating lawsuits are present in Court sessions but absent when the Court pronounces the judgment without good and sufficient reason, time limit for an appeal shall be counted from the date of judgment pronouncement.

2. The time limit for an appeal against the first-instance court's decision on to suspend or terminate the resolution of the case is 07 days counting from the day on which the involved parties and the agencies, organizations and individuals initiating lawsuits receive the decision or from the day on which the decision is posted up as prescribed in this Code.

3. For cases where the appeal applications are sent by post, time limit for an appeal shall be determined pursuant to the date written on the post seal of the sending post office. If the appellant is incurring a detainment, the date of appeal shall be the day on which the appeal application is certified by the prison officers.

Article 274. Examination of appeal applications

1. After receiving the appeal applications, the first-instance Courts must examine their validity as provided for in Article 272 of this Code.

2. In case of overdue appeals, the first-instance Courts shall request the appellants to further explain the reasons therefor and provide materials and/or evidences (if any) to prove that the reasons for late submission of their appeal applications are plausible.

3. Where the appeal applications are made not in compliance with the provisions of Article 272 of this Code, the first-instance Courts shall request the appellants to amend or supplement them.

4. An appeal application shall be returned by the Court in the following cases:

a) The appellant is not entitled to file an appeal;

b) The appellant fails to make another appeal application or fails to amend or supplement the appeal application at the request of the Court as prescribed in clause 3 of this Article.

c) Cases specified in clause 2 Article 276 of this Code.

Article 275. Overdue appeals and consideration for overdue appeals

1. Appeals that are not made within the time limit stipulated in Article 273 of this Code shall be the overdue appeals. After receiving overdue appeal applications, the first-instance Courts must forward the applications and the appellants' explanation of the reasons for late filing the appeals, materials and/or evidences (if any) to the appellate Courts.

2. Within 10 days after receiving the overdue appeal applications and the accompanied materials and/or evidences, the Courts of appeal shall set up a Panel consisting of three Judges to consider the overdue appeals. The meetings for considering overdue appeals must be under the presence of representatives of the procuracies of the same level and the overdue appeal applicants. If the appellants and/or the procurators are absent, the meetings shall be still carried on by the Court.

3. Pursuant to materials and evidences related to the overdue appeals, opinions of the overdue appeal applicants and representatives of the procuracies at the meetings, the overdue-appeal-considering Panel shall issue decisions under the majority rule on the acceptance or refusal of the overdue appeals that contain explanation for such acceptance or refusal. The appellate Courts must send their decisions to the overdue appeal applications, the first-instance Courts and the procuracies of the same level. If the appellate Courts accept the overdue appeals, the first-instance Courts shall carry out procedures stipulated in this Code.

Article 276. Notification of payment of appellate Court fee advance

1. After accepting the valid appeal applications the first-instance Courts must notify the appellants thereof so that they pay the appellate Court fee advances as required by law, if they do not fall cases of being exempt from, or having not to pay, the appellate Court fee advances.

2. Within 10 days as from the day on which the courts' notifications of payment of the appellate Court fee advances are received, the appellants must pay the Court fee advances and submit to the first-instance Courts the receipts of the payment of Court fee advances. After such time limit, if the appellants fail to pay the appeal fee Court advances, they shall be deemed to have given up their appeals, unless they have plausible reasons therefor.

If the appellants pay submit the Court the receipts of the payment of Court fee advances after 10 days as from the day on which the courts' notifications of payment of the appellate Court fee advances are received without explanation, the first-instance Courts shall request the appellant to send a writing presenting reasons for the lateness of submission of such receipts to the first-instance Courts within 03 working days from the day on which the courts’ notifications are received to be recorded in the case files. Such cases shall be settled according to the overdue appeal consideration procedures.

Article 277. Notice of appeal

1. After receiving the valid appeal applications, the first-instance Courts must notify such in writing to the procuracies of the same level and the involved parties, enclosed with copies of the appeal applications and additional materials and evidences that the appellants enclosed with the appeal applications.

2. Involved parties relevant to the appeal who are notified of the appeals shall be entitled to send to the appellate Courts documents expressing their opinions on the appealed matters. Such documents shall be included in the case files.

Article 278. Appeal by procuracies

The head of the procuracy of the same level or the immediate superior level shall be entitled to appeal against the first-instance court's judgments or decisions to suspend or terminate the resolution of the cases in order to request the immediate superior Court to directly settle the cases according to the appellate procedures.

Article 279. Appeal decisions of procuracies

1. The procuracies' appeal decisions must be made in writing and contain the following principal contents:

a) Issuing date and serial number of the appeal decision;

b) Name of the procuracy that issues the appeal decision;

c) Appealed sections of parts or the whole first-instance court's judgments or decisions which have not yet taken legal effect;

d) Reason(s) for such appeal and the procuracy's claims.

dd) Full name of the person signing the appeal decision and seal of the procuracy issuing the appeal decision.

2. The appeal decisions must be immediately sent to the first-instance Courts that have rendered the appealed judgments or decisions so that such Courts shall carry out procedures stipulated by this Code and send the case files to the appellate Courts as provided for in Article 283 of this Code.

3. Enclosed with the appeal decisions shall be additional documents and/or evidences (if any) to prove that the procuracies' appeals are well grounded and lawful.

Article 280. Time limit for an appeal

1. The time limit for making an appeal against a first-instance court's judgment shall be 15 days for the procuracy of the same level and 1 month for the immediate superior procuracy, counting from the date of judgment pronouncement. In cases where the procurators do not attend the Court sessions, the appeal time limit shall be counted from the day on which the procuracy of the same level receives the judgment.

2. The time limit for making an appeal against the first-instance court's decision on suspension or termination of the resolution of the case shall be 07 days for procuracy of the same level and 10 days for immediate superior procuracy, counting from the day on which the procuracy of the same level receives such decision.

3. If the Court receives the appeal decision from the procuracy after the time limit prescribed in clauses 1 and 2 of this Article, the first-instance Court shall request the procuracy to provide explanation in writing.

Article 281. Notification of appeals

1. The procuracy issuing an appeal decision must promptly send the appeal decision to the parties relating to the appeal.

2. Persons who are notified of the appeal shall be entitled to send to the appellate Court documents expressing their views on the appealed matters. Such documents shall be included in the case files.

Article 282. Effects of an appeal

1. First-instance courts’ judgments/decisions or parts thereof that are appealed against shall not be enforced, except where the law requires the immediate enforcement thereof.

2. The first-instance courts' judgments/decisions or parts thereof which are not appealed against shall take legal effect as from the day on which the appeal time limit expires.

Article 283. Forwarding case files and appeals

The first-instance Courts must forward case files, appeals and accompanying materials and evidences to the appellate Courts within 05 working days from the date:

1. The time limit for an appeal expires;

2. The appeal time limit expires and the appellant has submitted the receipt of the payment of appellate Court fee advance to the first-instance court.

Article 284. Modifying, supplementing, withdrawing appeals

1. If the time limit for appeal specified in Article 273 of this Code has not expired, the appellant is entitled to modify or supplement the appeal regardless of the scope of the original appeal.

If the time limit for appeal specified in Article 280 of this Code has not expired, the procuracy shall be entitled to modify or supplement the appeal regardless of the scope of the original appeal.

2. Before the opening of appellate Court sessions or in appellate Court sessions, the appellants may modify or supplement their appeals and the procuracies issuing appeal decisions may modify or supplement their appeals, provided that the modification or supplementation must not go beyond the scope of the original appeals or appeals, if the appeal or appeal time limit has expired.

3. Before the opening of appellate Court sessions or in appellate Court sessions, the appellants may withdraw their appeals and the procuracies issuing appeal decisions or the immediate superior procuracy may withdraw their appeals.

The appellate Courts shall terminate the appellate trial over parts of the cases against which the appellants have withdrawn their appeals or the procuracies have withdrawn their appeals.

The termination of the appellate trials before the opening of the appellate Court sessions shall be decided by the presiding Judges of the Court sessions; the termination of the appellate trials in the Court sessions shall be decided by the trial panels.

4. The modification, supplementation or withdrawal of appeals before the opening of appellate Court sessions must be made in writing and sent to the appellate courts. The appellate Courts must notify involved parties of the modification, supplement or withdrawal of appeals and notify the procuracies of the same level of the modification, supplement or withdrawal of the appeals.

The modification, supplementation or withdrawal of appeals in Court sessions must be recorded in the minutes of the Court sessions.