Chương XXIII Bộ luật tố tụng dân sự 2015: Quy định chung về thủ tục giải quyết việc dân sự

Chapter XXIII

GENERAL REGULATIONS ON PROCEDURES FOR RESOLUTION OF CIVIL MATTERS

Article 361. Scope of application

Civil matters mean a situation where agencies, organizations or individuals have no disputes but request Courts to recognize or not to recognize a legal event which serves as a basis for the rise of civil, marriage and family, business, commercial or labor rights and obligations of their own or of other agencies, organizations or individuals; or request Courts to recognize their civil, marriage and family, business, commercial or labor rights.

Provisions of this Part shall be applied for the resolution of civil matters specified in clauses 1, 2, 3, 4, 6, 7, 8, 9 and 10 Article 27, clauses 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 Article 29, clauses 1, 2, 3 and 6 Article 31, clauses 1, 2 and 5 Article 33 of this Code. If the civil matters are not specified in this Part, other provisions of this Code shall be applicable.

Article 362. Petitions for the Court resolution of civil matters

1. Persons requesting Courts to resolve civil matters must send their petitions to competent Courts defined in Section 2 Chapter III of this Code.

Any enforcers requesting the Courts to resolve civil matters according to provisions of the Law on enforcement of civil judgments shall have rights and obligations of persons requesting resolution of civil matters provided for in this Code.

2. A petition shall contain the following principal contents:

a) Date of making the petition;

b) Name of the Court that is competent to handle the petition;

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

d) Specific issues requested to be resolved by the court; reasons, purposes and bases of the request for Court resolution of such civil matters;

dd) Names and addresses of persons who are related to the resolution of such civil matters (if any);

e) Other information that are deemed by the petitioner to be necessary for the resolution of his/her petition;

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

3. The petition must be accompanied by materials and/or evidences to prove that the petitions are well-grounded and lawful.

Article 363. Procedures for receiving and processing petitions

1. Procedures for receiving petitions shall comply with regulations in clause 1 Article 191 of this Code.

Within 0 working days from the day on which the petition and accompanied materials and evidences are received, the Chief Justice of the Court shall assign a Judge to handle the petition.

2. If the petition does not contain sufficiently information specified in clause 2 Article 362 of this Code, the Judge shall request the petitioner to amend or supplement it within 07 days from the day on which the request is received. Procedures for amending and supplementing the petition shall comply with regulations in clause 1 Article 193 of this Code.

3. When the petition is satisfactory, the Judge shall carry out the procedures for acceptance of the civil matters.

Upon the expiry of the time limit specified in clause 2 of this Article, if the petitioner fails to amend/supplement the petition, the Judge shall return the petition and the accompanied materials and evidences to the petitioner.

4. If the petition and accompanied materials and/or evidences are deemed satisfactory to be accepted, the Judge shall carry out as follows:

a) The Court shall notify the petitioner about the payment of charge for civil matter resolution within 05 working days from the day on which the notice of charge payment is received, unless such petitioner is exempted from the charge as prescribed in law on fees and charges;

b) The Court shall accept the petition when the petitioner submit to the Court the receipt of civil-matter resolution charge;

c) If the petitioner is exempted from or does not have to pay the charge, the Judge shall accept the civil matter from the day on which the petition is received.

Article 364. Returning petitions

1. The petition shall be returned from the Court in the following cases:

a) The petitioner is not entitled to file the petition or does not have sufficient civil procedure act capacity;

b) The matter has been yet resolved by the Court or a competent agency;

c) The civil matter does not fall within the competence of the Court;

d) The petitioner fails to amend/supplement the petition within the time limit specified in clause 2 Article 363 of this Code;

dd) The petitioner fails to pay charge within the time limit specified in point a clause 4 Article 363 of this Code, unless he/she is exempted from or does not have to pay charge or the charge is paid late due to force majeure events or objective obstacles;

e) The petitioner withdraw the petition;

g) Other cases provided for in law.

2. When returning the petition and accompanied materials and evidences, the Court shall notify in writing containing explanation.

3. The complaints about the return of the petition and resolution thereof shall comply with regulations in Article 194 of this Code.

Article 365. Notices on the acceptance of petitions

1. Within 03 working days from the day on which the petition is accepted, the Court shall notify the petitioner, person with interests and duties relevant to the civil matter resolution and the procuracy of the same level in writing of the acceptance of the petition.

2. A notice must contain the following principal details:

a) Date of making of the notice;

b) Name and address of the Court accepting the petition;

c) Name and address of the involved parties;

d) Specific matters that the involved parties request the Court to resolve;

dd) List of materials and evidences that are accompanied by the petition;

e) Time limit for person with relevant interests and duties to provide opinions in writing to the Court about the petition and accompanied materials and evidences (if any);

g) Legal consequences of cases where the person with relevant interests and duties fail to submit the Court their opinions in writing for the petition for civil matter resolution.

Article 366. Preparation for petition consideration

1. Time limit for preparation for petition consideration shall be 01 month from the day on which the Court accept the petition, unless there are other provisions in this Code.

2. During the time limit for preparation for petition consideration, the Court shall carry out the following activities:

a) If the materials and evidences are not sufficient to serve as basis for the Court to resolve the matter, the Court shall request the involved parties to supplement materials and evidences within 05 working days from the day on which the request is received;

b) Upon the request of the involved parties or when it is deemed necessary, the Judge shall issue decision to request agencies, organizations and individuals to provide materials and evidences; summon witnesses, request property expertise and price assessment. If the time limit for preparation for petition consideration specified in clause 1 of this Article expires but the property expertise and/or price assessment results have not been produced, such time limit shall be extended for not exceeding 01 month;

c) Issue decision to terminate the consideration of petition and return the petition and accompanied materials and evidences if the petitioner withdraws the petition;

d) Issue decision to open a meeting to resolve civil matter.

3. The Courts must immediately send the decision to open the meeting to resolve civil matter and the dossiers on the civil matter to the procuracy of the same level for study. The procuracy must study them within 07 days from the day on which the dossier is received; when this time limit expires, the procuracy must return it to the Court for holding a meeting to resolve the civil matter.

4. The Court shall open a meeting to resolve civil matter within 15 days from the day on which the decision to open the meeting is issued.

Article 367. Participants in meetings for resolving civil matters

1. Procurators of the procuracies of the same level must attend the meetings. In cases where they are absent, the Court shall still conduct the meeting.

2. The petitioner or their lawful representatives or defense counsels of their rights and interests must participate in the meeting according to the summon of the court.

If the petitioner is absent for the first time, the Court shall postpone the meeting, unless the petitioner request the Court to resolve the civil matter in their absence. If petitioner has been duly summoned twice but is still absent, he/she shall be deemed to waive his/her petition and the Court shall issue decision to terminate the resolution of the civil matters; in this case, the right to request the Court to resolve the civil matter according to the procedures prescribed by this Code shall still be guaranteed.

3. Person with relevant interests and duties or their lawful representatives or defense counsels of their rights and interests must participate in the meeting according to the summon of the court. In case of necessity, the Court may summon witnesses, expert-witnesses and/or interpreters to attend the meetings. If any of them is absent, the Court shall decide to postpone the meetings or to proceed with the meetings.

Article 368. Decision on replacement of presiding officers in the process of resolution of civil matters

1. Before opening the meeting, the replacement of the Judge or clerk of meeting shall be decided by the Chief Justice of the Court being in charge of such civil matter; if the to be-replaced is the Chief Justice of the Court being in charge of the civil matter, the replacement shall be decided by the Chief Justice of the immediately superior court.

2. In the meeting for resolution of civil matters, the replacement of Judges or clerks of meeting shall be carried out as follows:

a) If the civil matter is handled by a Judge, the replacement of Judge or clerk of meeting shall be decided by the Chief Justice of the Court being in charge of such civil matter; if the to be-replaced is the Chief Justice of the Court being in charge of the civil matter, the replacement shall be decided by the Chief Justice of the immediately superior court;

b) If the civil matter is handled by a civil matter-resolving councils composed of 3 Judges, the replacement of members of the Council or the clerk of meeting shall be decided by the civil matter-resolving council.

3. Before opening the meeting, the replacement of procurator shall be decided by the chairperson of the procuracy of the same level.

In the meeting, the replacement of the procurator shall be decided by the Judge or the civil matter-resolving council. If the procurator must be replaced, the Judge or the civil matter-resolving council shall issue decisions to postpone the meeting and notify such replacement to the procuracy.

The appointment of a procurator to take place of the replaced one shall be decided by the chairperson of the procuracy of the same level. If the to be-replaced procurator is the chairperson of the procuracy, the replacement shall be decided by the chairperson of the immediately superior procuracy.

Article 369. Procedures for conducting meetings to resolve civil matters

1. A meeting to resolve civil matters shall be conducted in the following order:

a) The clerk of meeting shall report to the Judge and civil matter-resolving council about the presence or absence of participants in the meeting;

b) The Judge shall open the meeting; check the presence or absence of persons who are summoned to the meeting and their identity cards, introduce and explain rights and obligations of participants in the meeting;

c) Defense counsel of rights and interests of the petitioner, the petitioner or his/her lawful representative shall present specific issues that are requested to be dealt with by the court; reasons, purposes and grounds for requesting the Court resolution of such civil matters;

d) Related persons or their lawful representatives shall express their opinions on matters pertaining to their rights and obligations in the resolution of the civil matters;

dd) Witnesses shall present their opinions; or expert-witnesses shall present their conclusions and explain issues which remain unclear or contradictory (if any);

e) The Judge and the civil matter-resolving council shall review the materials and evidences;

g) The procurator shall present the procuracy's views on the resolution of the civil matters and shall send the writing containing opinions for the Court to save in the civil matter files when the meeting finishes;

h) The Judge and the civil matter-resolving council shall consider and decide to accept or not to accept the request for resolution of the civil matters.

2. If any person summoned by the Court to the meeting is absent, the Judge or the Civil matter-resolving council shall pronounce the testimonies, materials and evidences provided by such person before reviewing materials and evidences.

Article 370. Decision on resolution of civil matters

1. A decision to resolve civil matters shall contain the following principal contents:

a) Date of making the decision;

b) Name of the Court that issues the decision;

c) Full names of the Judge, procurator, meeting clerk;

d) Full name and address of the petitioner for the resolution of civil matters;

dd) Specific matters requested to be resolved by the court;

e) Names and addresses of persons with relevant interests and duties;

g) Assessment of the Court and grounds for accepting or not accepting the petition;

h) Legal bases for resolution of civil matters;

i) Court's decisions;

k) Court fees to be paid.

2. Decisions to resolve civil matters must be forwarded to the procuracies of the same level, the petitioners for the resolution of civil matters and person with interests and duties relevant to the resolution of civil matters within 05 working days from the day on which the decisions are issued.

The forwarding of decisions to resolve civil matters to enforcement authorities shall comply with provisions of the Law on enforcement of civil judgments.

3. Legally effective courts’ decisions to resolve civil matters that are relevant to the change of civil statuses of individuals must be sent to People’s Committees where such individuals registered for civil statuses according to provisions of the Law on civil status.

4. Legally effective courts’ decisions to resolve civil matters shall be published on e-portal of the Courts (if any), except for decisions containing information specified in clause 2 Article 109 of this Code.

Article 371. Appeal and appeal against civil matter-resolving decisions

Petitioners and persons with interests and duties relevant to civil matter resolution shall be entitled to appeal, the procuracies of the same level and immediate superior procuracy shall be entitled to appeal against civil matter-resolving decisions in order to request the immediate superior Court to re-settle them according to the appellate procedures, except for those prescribed in clause 7 Article 27, Clauses 2 and 3, Article 29 of this Code.

Article 372. Appeal time limits

1. The petitioners and persons with interests and duties relevant to the resolution of civil matters may appeal against the civil matter-resolving decisions within 10 working days from the day on which the decisions are issued. In cases where they are not present at the civil matter-resolving meetings, such time limit shall be counted from the day on which they receive the civil matter-resolving decisions or the day on which such decisions are announced or posted up.

2. The procuracies at the same level shall be entitled to appeal against civil matter-resolving decisions within 10 days, the immediate superior procuracies shall be entitled to appeal within 15 days as from the day on which the Courts issue such decisions.

Article 373. Consideration of appeals, appeals

1. Time limit for preparation for consideration of appeals shall be 15 days from the day on which the Courts receive the appeals.

2. Within the time limit for preparation for consideration of appeals, the Courts shall conduct the following activities:

a) If materials and evidences are not sufficient to serve as basis for the Courts to resolve the case, the Courts shall request the involved parties to supplement materials and evidences within 05 working days from the day on which the requests are received;

b) Upon the request of the involved parties or when it is deemed necessary, the Judge shall issue decisions requesting agencies, organizations and individuals to supply materials and evidences; summon witnesses, request expertise and price appraisal. If the time limit specified in clause 1 of this Article expires but the expertise/price appraisal results have not been produced, the time limit for preparation for consideration of appeals may be extended for not exceeding 15 days;

c) Within the time limit for preparation for consideration of appeals, if all the appellants withdraw their appeal petitions or the procuracies withdraw their appeal petitions, the Courts shall issue decisions to terminate the consideration of petitions according to appellate procedures. In these cases, civil matter-resolving decisions according to first-instance procedures shall effective from the days on which the appellate trial Courts issue the termination decisions;

d) The Courts shall decide to open the appellate meeting for the resolution of civil matters.

3. The Courts must immediately send such decisions to open appellate meetings to resolve civil matters and the civil matter files to the procuracies of the same level for study. The procuracies must study them within 07 days from the day on which the files are received; after this time limit, the procuracies must return the files to the Courts for holding meetings to resolve the civil matters.

4. Within 15 working days from the day on which the decision to open a meeting is issued, the Judge must open an appellate meeting resolve the civil matter.

Article 374. Participants in appellate meetings to resolve civil matters

1. The procurators of procuracies of the same level shall participate in the appellate meeting to resolve civil matters; if the procurators are absent, the Court shall still hold the meeting, unless a procuracy appeals against the appeal review.

2. Persons applying appeal petitions, their lawful representatives and defense counsels of their rights and interests must participate in meetings according to the subpoena of the Court.

If the appellant is absent for the first time due to plausible reasons, the Court shall postpone the civil matter-resolving appellate meeting, unless the appellant request for resolution in their absence. If the appellant has been summoned twice but is still absent, he/she shall be deemed to waive their appeal and the Court shall issue decisions to terminate the appeal review of civil matter in the appeal, unless he/she apply for resolution in their absence or due to force majeure events or objective obstacles.

3. Persons with relevant interests and duties, their lawful representatives and defense counsels of their rights and interests shall be summoned by the Court to participate in the meeting. In case of necessity, the Court may summon witnesses, expert-witness and/or interpreters to attend the meetings. If any of them is absent, the Courts shall decide to postpone the meetings or to proceed with the meetings.

Article 375. Procedures for conducting appellate meetings to resolve civil matters

1. An appellate meeting to resolve civil matters shall be conducted in the following order:

a) The meeting clerk shall report on the presence or absence of meeting participants;

b) The Judge shall open the meeting; check the presence or absence of persons who are summoned to the meeting and their identity cards, introduce and explain rights and obligations of participants in the meeting;

c) Defense counsel of rights and interests of the appellant, the appellant or his/her lawful representative shall present about the appealed contents and grounds for such appeal;

If there is only appeal from the procuracy, the procurator shall present about the appealed contents and grounds for such appeal. If there is both appeal and appeal, involved parties shall present about the appealed contents and grounds for such appeal, then the procurator shall present about the appealed contents and grounds therefor. If the procuracy does not appeal, the procurator shall express their opinions of the procuracy about the handling of the appeal before the appellate panel makes decision.

Right after the meeting finishes, the procurator shall send the written opinion to the Court to be recorded in civil matter files;

d) Defense counsel of rights and interests of person with relevant interests and duties, persons with relevant interests and duties or their lawful representatives shall express their opinions on matters pertaining to their rights and obligations in the appealed contents;

dd) Witnesses shall present their opinions; or expert-witnesses shall present their conclusions and explain issues which remain unclear or contradictory.

2. If any person summoned by the Court to the meeting is absent, the Judge shall pronounce the testimonies, materials and evidences provided by such person.

3. The appellate panel shall consider the decision of the first-instance Court that is appealed against and relevant materials and evidences and issue one of the following decisions:

a) To uphold the decision on resolution of civil matter issued by the first-instance Court;

b) To modify the decision on resolution of civil matter issued by the first-instance Court;

c) To repeal the decision on resolution of civil matter issued by first-instance Court to re-settle according to first-instance procedures;

d) To repeal the decision on resolution of civil matter issued by the first-instance Court and terminate the resolution of the civil matter;

dd) Terminate the consideration of the petition according to appellate procedures if in the meeting all the appellants withdraw their appeal petitions and the procuracy withdraw the appeal petition.

4. Decisions to conduct appellate review of civil matter resolution shall take effect from the day on which they are issued and shall be sent to agencies, organizations and individuals as prescribed in clauses 2 and 3 Article 370 of this Code.

5. Legally effective decisions to conduct appellate review of civil matter resolution shall be posted on e-portal of the Court (if any), except for decisions containing information specified in clause 2 Article 109 of this Code.