Chương XX Bộ luật tố tụng dân sự 2015: Thủ tục giám đốc thẩm

Chapter XX

CASSATION PROCEDURES

Article 325. Nature of cassation

Cassation means the review of courts' legally effective judgments or decisions, which are appealed against when there are grounds specified in Article 326 of this Code are satisfied.

Article 326. Grounds and conditions for appeal according to cassation procedures

1. A legally effective judgment/decision of the Court shall be appealed against according to cassation procedures when there is one of the following grounds:

a) Conclusion in the judgment/decision is incompatible with the objective details of the cases, causing damage to legitimate rights and interests of the involved parties;

b) There are serious violations against procedures that prevent involved parties from executing their procedural rights and obligations, as the result, their legitimate rights and interests are not protected as prescribed in law;

c) There are mistakes in the application of law leading to the issuance of wrong judgments/decisions, causing bad effect to legitimate rights and interests of involved parties, infringing upon public benefits, State benefits, legitimate rights and interests of the third parties.

2. Persons competent to lodge appeals specified in Article 331 of this Code shall lodge appeals against Courts’ judgments/decisions that are legally effective when there is one of the grounds specified in clause 1 of this Article and shall file applications as provided for in Article 328 of this Code or make notifications/recommendations as prescribed in clauses 2 and 3 Article 327 of this Code. If the judgments/decisions infringe upon public benefits, State benefits, legitimate rights and interests of the third parties, the applications are not required.

Article 327. Discovering legally effective judgments or decisions of Courts which need to be reviewed according to cassation procedures

1. Within 01 year from the day on which the Court’s judgments/decisions takes legally effect, if any legal violations in the judgments/decisions is discovered, involved parties are entitled to submit written applications to persons competent to lodge appeal specified in Article 331 of this Code for consideration according to cassation procedures.

2. If the Courts, the procuracies or other agencies/organizations/individuals discover legal violations in the Courts’ judgments/decisions that are legally effective, written notifications must be sent to persons competent to lodge appeals provided for in Article 331 of this Code.

3. Chief Justices of People’s Courts of provinces shall file recommendations to Chief Justices of Collegial People’s Courts/Supreme People’s Courts, the Chief Justices of Collegial People’s Courts shall file recommendations to Chief Justices of Supreme People’s Courts, to review the appeals against Courts’ judgments/decisions that are legally effective according to cassation procedures if any ground specified in clause 1 Article 326 of this Code is discovered.

Article 328. Application for reviewing legally effective judgments or decisions according to cassation procedures

1. An application for reviewing Courts’ judgments/decisions which are legally effective according to cassation procedures must have the following principal details:

a) Date of making the application;

b) Name and address of the applicant;

c) Name of the Court’s legally effective judgment/decision subject to reviewing according to cassation procedures;

d) Reasons for the application, requests of the applicant;

dd) Signature or fingerprints, applicable to applicants being individuals, or signature and seal of lawful representatives, applicable to applicants being agencies or organizations, in the end of the application. If the applicant is an enterprise, the use of the seal shall comply with provisions of the Law on Enterprise.

2. Enclosed with the application shall be Courts' legally effective judgments/decisions and materials and evidences (if any) to prove that the applicants’ requests are well-grounded and lawful.

3. The application and materials and/or evidences shall be sent to persons competent to lodge appeals provided for in Article 331 of this Code.

Article 329. Procedures for receiving applications for reviewing courts’ legally effective judgments or decisions according to cassation procedures

1. Courts/procuracies shall receive applications that are submitted by the involved parties directly at the Courts/procuracies or by post and shall record to the application registers and issue receiving slips for involved parties. Date of sending of application shall be calculated from the day on which the involved parties submit the application at the Courts/procuracies or the sending date written on the post seal.

2. Courts/procuracies shall accept the applications only when all provisions specified in Article 328 of this Code are satisfied. If the applications do not satisfy conditions specified in Article 328 of this Code, the Courts/Procuracies shall request the applicants to submit application for amendment/supplement within 01 month from the day on which the requests from the Courts/Procuracies are received. Upon the expiry of such period, if the applicants fail to conduct amendment/supplement, the Courts/Procuracies shall return the applications enclosed with explanation and note such cases in the application registers.

3. Persons competent to file appeals according to cassation procedures shall assign persons to study the petitions, notifications, recommendations and case files then request the persons competent to file appeals to consider and make decisions. If the petitions are rejected, written notifications containing explanation shall be sent to involved parties, agencies, organizations and individuals that have sent the notifications/recommendations.

The Chief Justice of the Supreme People’s Court shall assign Judges of the Supreme People’s Court, the Chairperson of the Supreme People’s Procuracy shall assign procurators of the Supreme People’s Procuracy to study the petitions, notifications, recommendations, case files and report them to the Chief Justice of the Supreme People’s Court and the Chairperson of the Supreme People’s Procuracy for considering and making decisions on appeal. If the petitions are rejected, the Chief Justice of the Supreme People’s Court, the Chairperson of the Supreme People’s Procuracy shall, by themselves or authorize the Judge of the Supreme People’s Court and procurators of the Supreme People’s Procuracy to send written notifications containing explanation to the involved parties and individuals that have sent the notifications/recommendations.

Article 330. Supplement, verification of materials and evidences in cassation procedures

1. Involved parties shall be entitled to provide materials and evidences for persons competent to file appeals according to cassation procedures if such materials and evidences have not been supplied to the first-instance Courts or the appellate Courts because such Courts had not required or because the involved parties failed to supplied due to good and sufficient reasons or because the involved parties did not know about such materials and evidences during the resolution of the cases.

2. During the resolution of petitions for consideration of the legally effective judgments/decisions of Courts according to cassation procedures, persons competent to file appeals according to cassation procedures shall be entitled to request the petitioners to supplement materials and evidences or inspect and verify the materials and evidences by themselves if necessary.

Article 331. Persons competent to appeal according to cassation procedures

1. The Chief Justice of the Supreme People's Court and the Chairperson of the Supreme People’s Procuracy shall be competent to appeal according to cassation procedures against the legally effective judgments or decisions of the Collegial People’s Court; legally effective judgments or decisions of other Courts when it is deemed necessary, except for cassation decisions of the Council of Judges of the Supreme People's Court.

2. The Chief Justices of the Collegial People’s Courts and the chairpersons of the shall be entitled to appeal according to the cassation procedures against legally effective judgments or decisions of People’s Courts of provinces or People’s Courts of districts within territorial competence.

Article 332. Postponement and suspension of enforcement of legally effective judgments or decisions

1. Persons who are competent to appeal against legally effective judgments or decisions of Courts may request the postponement of enforcement of judgments or decisions in order to consider the appeals according to cassation procedures. The postponement of enforcement of judgments shall comply with law regulations on civil judgment execution.

2. Persons who have appealed according to cassation procedures legally effective judgments or decisions shall have the right to decide on the suspension of enforcement of such judgments or decisions until the cassation decisions are made.

Article 333. Decisions to appeal according to cassation procedures

A decision to appeal according to cassation procedures shall consist of the following principal contents:

1. Date and number of the appeal decision;

2. Position of the person who makes the appeal decision;

3. Number and date of the legally effective judgment or decision being appealed against;

4. Decisions of the legally effective judgment or decision being appealed against;

5. Comments, analysis of the violations or errors of the legally effective judgment or decision being appealed against;

6. Legal grounds for making the appeal decision;

7. Whether the appeal is against parts or whole of the legally effective judgment or decision;

8. Name of the Court that is competent to conduct cassation of such case;

9. Proposals of the appellant.

Article 334. Time limit for appeal according to cassation procedures

1. Persons competent to appeal according to cassation procedures are entitled to lodge the appeal within 03 year from the day on which the Court’s judgments/decisions takes legally effect, except for cases specified in clause 2 of this Article.

2. If the time limit for appeal prescribed in clause 1 of this Article expires such time limit shall be extended by 02 years from the day on which such time limit expires if the following conditions are satisfied:

a) The involved parties have submitted applications provided for in clause 1 Article 328 of this Code and maintain the application when the time limit for appeal provided for in clause 1 of this Article has expired;

b) Courts’ legally effective judgments/decisions are contrary to law as prescribed in clause 1 Article 326 of this Code, seriously affecting legitimate rights and interests of involved parties and/or third parties, public benefits, State benefits and are subject to appeal to eliminate faults in such legally effective judgments/decisions.

Article 335. Modification, supplementation, withdrawal of appeals according to cassation procedures

1. Persons who have appealed according to cassation procedures shall be entitled to modify or supplement the appeals if the appeal time limit prescribed in Article 334 of this Code has not yet expired. Such modification/supplement must be made under decisions. Decisions to modify/supplement appeals must be sent according to provisions of Article 336 of this Code.

2. Persons who have appealed shall be entitled to withdraw parts or whole of the appeal decisions before the opening of Court sessions or in cassation Court sessions. Such withdrawal must be made under decisions.

3. After receiving decisions to withdraw whole of the appeal, the cassation Courts shall issue decisions to terminate the cassation trial.

Article 336. Forwarding decisions to appeal according to cassation procedures

1. Decisions to appeal according to cassation procedures must be immediately sent to the Courts that have issued the legally effective judgments/decisions being appealed against, the involved parties, the competent civil judgment-executing agencies and persons whose interests and duties are related to the appealed contents.

2. In cases where the Chief Justices of the Supreme People's Court or the Chief Justices of the Collegial People’s Courts appeal, the appeal decisions and the case files must be immediately sent to the Procuracies of the same level. The procuracies shall study the files within 15 days as from the day on which the case files are received; upon the expiry of such time limit, the procuracies must transfer the case files to the Courts competent to hear the cases according to cassation procedures.

3. In cases where the Chairperson of the Supreme People's Procuracy or the heads of the Collegial People’s procuracies appeal, the appeal decisions must be immediately sent to the Courts competent to hear the cases according to cassation procedures.

Article 337. Jurisdiction to review cases according to cassation procedures

1. The Committee of Judges of the Collegial People’s Courts shall review according to cassation procedures legally effective judgments/decisions of the provincial-level people’s Courts or district-level people's courts, which are appealed against, within competence as follows:

a) The Committee of Judges of the Collegial People’s Courts shall review according to cassation procedures, through trial panels composed of 3 Judges, legally effective judgments/decisions of the provincial-level people’s Courts or district-level people's Courts which are appealed against:

b) If courts’ legally effective judgments/decisions prescribed in point a of this clause are complicated, or judgments/decisions have been reviewed according to cassation procedures by Committee of Judges of Collegial People’s Courts, through trial panels composed of 3 Judges, but no agreement is reached upon the vote on the decisions on case resolution, then the whole of Committee of Judges of Collegial People’s Courts shall review such judgments/decisions according to cassation procedures.

2. The Council of Judges of the Supreme People's Court shall review according to cassation procedures legally effective judgments/decisions of Collegial People’s Courts which are appealed against as follows:

a) The Council of Judges of the Supreme People’s Court shall review according to cassation procedures, through trial panels composed of 5 Judges, legally effective judgments/decisions of Collegial People’s Courts that are appealed against according to cassation procedures;

b) If courts’ legally effective judgments/decisions prescribed in point a of this clause are complicated, or judgments/decisions have been reviewed according to cassation procedures by the Council of Judges of the Supreme People’s Court, through trial panels composed of 5 Judges, but no agreement is reached upon the vote on the decisions on case resolution, then the whole of Council of Judges of Supreme People’s Courts shall review such judgments/decisions according to cassation procedures.

3. Complicated cases mentioned in point b clause 1 and point b clause 2 of this Article are the following cases:

a) Law provisions applicable to matters to be resolved in the case are unclear or are not applied consistently;

b) There is argument over the assessment of evidences and application of law provisions;

c) The case resolution is related to public benefits, State benefits, human’s right protection, civil right protection that are specially concerned.

4. Chief Justices of Collegial People’s Courts shall consider deciding to conduct cassation trials for cases specified in clause 1 of this Article. Chief Justices of Supreme People’s Courts shall consider deciding to conduct cassation trials for cases specified in clause 2 of this Article.

5. If legally effective judgments/decisions are on the same civil lawsuits and within the competence to review according to cassation procedures of both Collegial People’s Courts and the Supreme People’s Court, then the Supreme People’s Court shall have the competence to review according to cassation procedures for the whole of the case.

Article 338. Participants in cassation review Court sessions

1. The cassation review Court sessions must be with the participation of the Procuracies of the same level.

2. If it is deemed necessary, the Court shall summon involved parties or their representatives and defense counsels of their rights and interests or other participants related to the appeal to the cassation review Court session; if any of them is absent from the Court session, the cassation review trial panel shall still carry on the session.

Article 339. Time limit for opening of cassation review Court sessions

Within 04 months as from the day on which the appeals and the enclosed case files are received, the Courts competent to cassation review must open Court sessions to review cases according to cassation procedures.

Article 340. Preparations for cassation review Court session

The Chief Justice of the Court shall assign a Judge to prepare written explanation of the case at the Court session. The written explanation shall summarize the case contents and the judgments/decisions of the Courts of different levels as well as the appealed contents. The explanation must be forwarded to members of the Cassation Review panel not later than 07 days before the opening of the cassation review Court sessions.

Article 341. Trial procedures at cassation review Court sessions

1. After the presiding Judge opens the Court session, a member of the Cassation Review Panel shall present the brief contents of the case, the case handling process, decisions of the legally effective judgments/decisions being appealed against, grounds for the appeal, viewpoint of the appeal and proposals of the appellant. If the appeal is lodge by a procuracy, the procuracy must present the appealed contents.

2. Involved parties, their representatives and defense counsels of their rights and interests or other participants shall be summoned to the cassation review Court by the Court to present opinions about matters requested by the cassation review panel. If any of such persons is absent but has sent his/her written opinions before, the cassation review panel shall pronounce his/her opinions.

3. The representative of the procuracy shall present the opinions of the procuracy on the resolution of the case.

Immediately after the Court session, the representative of the procuracy shall send the writing containing opinions to the Court to be save in the case files.

4. Members of the Cassation Review Panel shall express their opinions and discuss. The Cassation review panel shall conduct deliberation and vote on the resolution of the case and pronounce the decision on the resolution of the case at the court. The deliberation must be conducted according to rules specified in Article 264 of this Code.

5. If the cassation review Court is conducted by the Committee of Judges of Collegial People’s Court as prescribed in point a clause 1 Article 337 of this Code, decisions of the trial panel must be approved by all members of the panel.

For cassation review trial conducted as prescribed in point b clause 1 Article 337 of this Code, the Court session of the whole of the Committee of Judges of the Collegial People’s Court must be under the presence of at least two-thirds of present members of the committee; decisions of the Judge committee must be approved by more than a haft of members of the committee.

6. If the cassation review Court is conducted by the Committee of Judges of the Supreme People’s Court as prescribed in point a clause 2 Article 337 of this Code, decisions of the trial panel must be approved by all members of the panel.

For cassation review trial conducted as prescribed in point b clause 2 Article 337 of this Code, the Court session of the whole of the Committee of Judges of the Supreme People’s Court must be under the presence of at least two-thirds of present members of the committee; decisions of the Judge committee must be approved by more than a haft of members of the committee.

Article 342. Scope of the cassation review

1. The Cassation Review Panels shall only review parts of legally effective judgments/decisions being appealed against or related to the review of the appealed contents.

2. The Cassation Review Panels shall be entitled to review the decisions of the legally effective judgments/decisions which are neither appealed against nor related to the review of the appealed contents, if these parts infringe upon the public interests, interests of the State, or the interests of the third parties other than the involved parties in the cases.

Article 343. Jurisdiction of the Cassation Review Panels

The Cassation Review Panels shall have the following powers:

1. To reject the appeals and uphold the court’s legally effective judgments/decisions;

2. To repeal the legally effective judgments/decisions of Courts and uphold the lawful judgments/decisions of the subordinate courts, which have been annulled or amended;

3. To repeal parts or the whole of courts’ legally effective judgments/decisions to retry according to first-instance procedures or appellate procedures;

4. To repeal legally effective judgments/decisions and terminate the resolution of the cases;

5. To modify parts or the whole of the legally effective judgments/decisions.

Article 344. Upholding the subordinate courts' lawful judgments or decisions which have been annulled or amended

The Cassation Review Panels shall issue decisions to repeal legally effective judgments/decisions being appealed and uphold the judgments/decisions rendered legally by subordinate Courts but partially or entirely annulled or amended by legally effective judgments/decisions being appealed.

If the judgments/decisions are partially or entirely enforced, the cassation review panel shall resolve the consequences of such enforcement.

Article 345. Repealing parts or the whole of courts’ legally effective judgments/decisions to retry according to first-instance procedures or appellate procedures

The Cassation Review Panels shall issue decisions to repeal partially or entirely courts’ legally effective judgments/decisions being appealed against for re-trials according to the first-instance or appellate procedures in the following cases:

1. The collection of evidences and proof have been carried out insufficiently or unconformably with the provisions of Chapter VII of this Code;

2. The decisions in the judgments or decisions do not conform to the objective details of cases or serious errors are committed in the application of law;

3. The composition of the first-instance or appellate trial panel is not conformable with the provisions of this Code or other serious procedural violations have been committed affecting lawful rights and interests of involved parties.

Article 346. Repealing legally effective judgments and/or decisions and termination of case resolution

The Cassation Review Panels shall issue decisions to annul legally effective judgments/decisions and terminate the case resolution if the cases fall under one of the circumstances stipulated in Article 217 of this Code.

If the judgments/decisions are partially or entirely enforced, the cassation review panel shall resolve the consequences of such enforcement.

Article 347. Modification of parts or the whole of the legally effective judgments/decisions

1. The Cassation Review Panels shall issue decisions to repeal parts or the whole of courts’ legally effective judgments/decisions if all the following conditions are met:

a) Materials and/or evidences in the case files are sufficient, clear and well-grounded to clarify details in the cases;

b) The modification of judgments/decisions which are appealed against does not affect rights and obligations of other agencies, organizations and individuals.

2. If the judgments/decisions are partially or entirely enforced, the cassation review panel shall resolve the consequences of such enforcement.

Article 348. Cassation review decisions

1. The Cassation Review Panels shall issue decisions in the name of the Socialist Republic of Vietnam.

2. A cassation review decision must contain the following principal contents:

a) Date and place of opening the Court session;

b) Full names of members of the Cassation Review Panel. In cases where the Cassation Review Panel is the Committee of Judges of a Collegial People’s Court or the Council of Judges of the Supreme People's Court, the full name and title of the presiding Judge and the number of members participating in the trial shall be specified;

c) Full names of the Court clerk and the procurator participating in the Court session;

d) Name of the case that has been brought to cassation review trial by the Panel;

dd) Full names and addresses of the involved parties in the case;

e) Summary of the contents of the case, decisions of the legally effective judgment or decision being appealed against;

g) Decision to appeal; grounds for making the appeal;

h) Assessment of the Cassation Review Panel where opinion about the resolution of the case must be analyzed and grounds for acceptance or non-acceptance of the appeal must be specified;

i) Points, clauses or articles of the Civil Procedure Code and/or other legislative documents on which the Cassation Review Panel bases to make decision;

k) Decision of the Cassation Review Panel.

3. Decisions of the Cassation review panels of Councils of Judges of the Supreme People’s Court must contain argument to prove that provisions of law can be also understood in different ways; legal matters and facts must be explained and reasons and resolution for such matters and legal provisions to be applied (if any) must be specified.

Article 349. Effect of the cassation review decisions

The cassation review decisions shall take legal effect as from the date the Cassation Review Panels issue them.

Article 350. Forwarding the cassation review decisions

1. Within 05 working days from the day on which a cassation review decision is issued, the cassation review trial panel shall send it to the following agencies, organizations and individuals:

a) The involved parties and other persons with related interests and obligations under the cassation review decisions;

b) The Courts which have rendered legally effective judgments/decisions being appealed against;

c) The procuracy of the same level, the competent civil judgment-executing agencies.

2. Cassation review decisions shall be posted by Courts competent to review on their e-portals (if any), except for decisions containing information specified in clause 2 Article 109 of this Code.