Chương XXXVI Bộ luật tố tụng dân sự 2015: Thủ tục xét đơn yêu cầu công nhận và cho thi hành tại việt nam bản án, quyết định dân sự của tòa án nước ngoài; thủ tục xét đơn yêu cầu không công nhận bản án, quyết định dân sự của tòa án nước ngoài

Chapter XXXVI

PROCEDURES FOR CONSIDERATION OF APPLICATIONS FOR RECOGNITION AND ENFOREMENT IN VIETNAM OF CIVIL JUDGMENTS OR DECISIONS OF FOREIGN COURTS; PROCEDURES FOR CONSIDERATION OF APPLICATION FOR NON-RECOGNITION OF CIVIL JUDGMENTS OR DECISIONS OF FOREIGN COURTS

Section 1. PROCEDURES FOR CONSIDERATION OF APPLICATIONS FOR RECOGNITION AND ENFORCEMENT IN VIETNAM OF CIVIL JUDGMENTS OR DECISIONS OF FOREIGN COURTS

Article 432. Prescriptive periods for filing applications for recognition and enforcement

1. Within 03 years from the day on which the civil judgment/decision of a foreign Court takes legal effect, the judgment/decision creditors, persons with relevant legitimate rights and interests or their lawful representatives may submit their application to Vietnam’s Ministry of Justice according to provisions of International treaty to which the Socialist Republic of Vietnam and home country of such foreign Court are co-signatories or to a competent Vietnam’s Court specified in this Code to request recognition and enforcement in Vietnam of such civil judgment/decision.

2. In cases where the applicant can prove that he/she cannot submit the application within the time limit specified in clause 1 of this Article due to a force majeure event or an objective obstruct, the time periods when such force majeure event or objective obstruct occurs shall not be included in the time limit for submission of application.

Article 433. Applications for recognition and enforcement

1. An application for recognition and enforcement must contain the following principal details:

a) Full names and addresses of residence places or work places of the judgment creditors or their lawful representatives; if the judgment creditors are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed;

b) Full names and addresses of residence places or work places of the judgments debtors; if the judgments debtors are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed; in cases where the judgment debtors being individuals do not have residence places or work places in Vietnam or the judgment debtors being agencies or organizations do not have head-offices in Vietnam, their applications must also specify the addresses of the places where exist the properties and assorted properties relating to the enforcement in Vietnam of foreign courts’ civil judgments/decisions;

c) Requests of judgment creditors; where foreign courts’ judgments/decisions have been partly enforced, the judgment creditors must clearly state the executed parts and the remaining parts requested for recognition and continued enforcement in Vietnam.

2. Applications in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

Article 434. Papers and documents enclosed with the applications

1. The applications shall be enclosed with papers and documents specified in the International treaties to which the Socialist Republic of Vietnam and the home countries of the Courts issuing the judgments/decisions are co-signatories. If the Socialist Republic of Vietnam and the home country of the Court issuing the judgment/decision are co-signatories of an International treaty having provisions for such matter, the application shall be enclosed with the following papers and documents:

a) Originals or certified true copies of the judgment/decision issued by the foreign Court;

b) Documents made by the foreign Court or other competent foreign agencies certifying that such judgment/decision has taken legal effect, has not expired and should be enforced in Vietnam, except where these details have already been clearly stated in the judgment/decision;

c) Documents made by the foreign Court or other competent foreign agencies certifying the lawful delivery of such judgment/decision to the judgment debtors who have to execute such judgments/decisions;

d) In cases the foreign Court issue the judgment in the absence of the judgment debtors or their lawful representatives, documents made by the foreign Court or other competent foreign agencies certifying that they have been duly summoned are required.

2. Papers and documents enclosed with the application that are in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

Article 435. Transferring of dossiers to Courts

Within 05 working days after receiving the applications, papers and documents specified in clause 1 Article 434 of this Code, the Ministry of Justice must send the dossiers to competent Courts as provided for in Articles 37 and 39 of this Code.

Article 436. Acceptance of dossiers

Within 05 working days from the day on which the dossiers sent from the Ministry of Justice are received or from the day on which the applications and accompanying papers and documents sent from the applicants are received, the Courts shall base themselves on Article 363, 364 and 365 of this Code to consider and accept the dossiers and notify such to the applicants, the judgment debtors or their lawful representatives in Vietnam, the Procuracies of the same levels and the Ministry of Justice.

Article 437. Preparation for consideration of applications

1. Within the term of preparation for consideration of an application, the Court may request the judgment creditors to explain unclear matters in the application; request the foreign Court issuing the judgment/decision to explain unclear matters in the dossier.

2. The written request of the Court for explanation shall be sent to the judgment creditors or their lawful representatives in Vietnam and the foreign Court by post.

If the Vietnamese Court request the foreign Court to make explanation, the written request shall be translated in to the language specified in the International treaty to which the Socialist Republic of Vietnam is a signatory. If the Socialist Republic of Vietnam and the foreign country have not been the co-signatories to an International treaty, the dossier must be enclosed with the versions in the language of the country that is requested Judicial assistance or in a language agreed by the requested country. Applicants for recognition and enforcement in Vietnam of judgments/decisions of foreign countries must bear the cost for translation and the postage on the written request for explanation of Vietnam’s Courts to the foreign Courts.

3. Time limit for preparation for consideration of an application shall be 04 months from the day on which it is accepted. Within such time limit, on a case-by-case basis, the Court shall issue one of the following decisions:

a) To suspend the consideration of the application;

b) To terminate the consideration of the application;

c) To open a meeting for considering the application.

If a written request for explanation is sent by the Court as provided for in clause 1 of this Article, time limit for consideration of the application may be extended by not exceeding 02 months. Past such time limit, if the written explanation of the involved parties or the foreign Court has not been received by the Vietnam’s Court, Vietnam’s Court shall base itself on the documents in the dossier to resolve the application of the involved parties.

Within 01 days after issuing a decision to open a meeting for considering the application, the Court shall open the meeting.

Within 15 days before the meeting is opened, the Court shall transfer the dossier to the procuracy of the same level for study; past such time period, the procuracy shall return the dossier to the Court so that the meeting for considering the application can be opened.

4. The Court shall issue the decision to suspend the consideration of the application in any of the following circumstances:

a) The judgment debtor being individual has died or the judgment debtor being agency/organization has been merged, amalgamated, divided or dissolved without an agency, organization or individual to inherit his/her/its procedural rights and obligations;

b) The judgment debtor being individual lacks of legal capacity but his/her lawful representatives has not been determined;

c) Legal representation of the judgment debtor has finished but the replacing person has not been assigned;

d) The enforcement of the judgment/decision has been suspended at the home country of the Court issuing such judgment/decision;

dd) Such judgment/decision is being re-considered or being waited for re-consideration according to procedures of the home country of the Court issuing such judgment/decision.

5. The Court shall issue the decision to terminate the consideration of the application in any of the following circumstances:

a) The judgment creditor withdraw his/her application or the judgment debtor has voluntarity enforce the judgment/decision of the foreign Court;

b) The judgment debtor being individual has died but his/her rights and obligations have not been inherited;

c) The judgment debtor being agency/organization has been dissolved or bankrupted but its rights and obligations have been settled according to Vietnam’s law;

d) The judgment debtor being agency/organization has been dissolved or bankrupted but its procedural rights and obligations have not been inherited;

dd) The decision of the Court to open the bankrupt procedures for the judgment debtor has been issued;

e) The Court cannot determine the address of the judgment debtor and the place exists the properties related to the enforcement;

g) The jurisdiction to resolve the application belongs to another Court and the dossier has been forwarded to such Court for resolution;

h) The Court cannot determine the place exists the properties related to the enforcement in Vietnam in case the judgment debtor being agency/organization does not have head office in Vietnam or the judgment debtor being individual does not reside or work in Vietnam.

Article 438. Meetings for considering applications

1. The consideration of an application shall be conducted at a meeting by a Panel consisting of 3 Judges, one of whom shall act as the presiding Judge under the assignment of the Chief Justice of the Court.

2. The procurator of the procuracy of the same level shall attend the meeting; if the procurator is absent, the meeting shall be still conducted by the Court.

3. The meeting shall be conducted in the presence of the judgment creditors, judgment debtors or their lawful representatives; if any of them is absent for the first time, the meeting must be postponed.

The consideration of the application shall still proceed if the judgment creditors or their lawful representatives, or the judgment debtors or their lawful representatives have filed their applications to the Courts for consideration of the applications in their absence or if their lawful representatives have been duly summoned twice but are still absent.

The Panel shall issue decisions to terminate the consideration of the application if the judgment creditors or their lawful representatives have been duly summoned twice but are still absent or in any of the circumstances specified in clause 5 Article 437 of this Code.

4. When considering the application for recognition and enforcement, the Panel shall not conduct re-trial over the case when a foreign Court has issued judgment/decision for such case. The Court shall be only entitled to check and compare the civil judgment/decision of the foreign Court and accompanying papers and documents with provisions of Chapter XXXV and Chapter XXXVI of this Code, other relevant Vietnam's law provisions and International treaties to which the Socialist Republic of Vietnam is a signatory to form the basis for the issuance of decision to recognize and enforce such judgment/decision.5. After checking the application and accompanying papers and documents and listening to opinions of the summoned people and of the procurator, the Panel shall discuss and make decision under the majority rule.

The Panel shall be entitled to make a decision to recognize and enforce in Vietnam or decision to not recognize a civil judgment/decision of a foreign Court.

6. Within the time for preparation of the application, the first-instance Court shall be entitled to decide to apply, modify or repeal a provisional emergency measure specified in Chapter VIII of this Code.

Article 439. Civil judgments/decisions of foreign Court that shall not be recognized or enforced in Vietnam

1. Civil judgments/decisions of foreign Courts that do not satisfy one of conditions for being recognized provided for in International treaties to which the Socialist Republic of Vietnam is a signatory.

2. Civil judgments/decisions that have not taken legal effect as provided for in law of the home countries of the Courts issuing them.

3. Judgment debtors or their lawful representatives are absent from the Court sessions of the foreign Courts because they have not been duly summoned or documents of the foreign Courts have not been delivered to them in a reasonable time period as prescribed in law of home country of such foreign Court so that such persons can exercise the right to self-defense.

4. The foreign Courts that have issued the judgments/decisions do not have jurisdiction to settle civil cases as prescribed in Article 440 of this Code.

5. Such civil cases have been settled in legally effective civil judgments/decisions of Vietnamese Courts, or before the foreign agencies in charge accepted such cases, they have been accepted and are being proceeded by Vietnamese Courts, or such civil cases have been settled with civil judgments/decisions issued by Courts of third countries which have been recognized and allowed to be enforced by Vietnamese Courts.

6. Time limit for enforcement of judgments prescribed in law of the home countries of the Courts issuing such judgments/decisions or in Vietnam's law on civil judgment enforcement has been exceeded.

7. The enforcement of the judgments/decisions has been canceled or terminated at the home country of the Court issuing such judgments/decisions.

8. The recognition and enforcement of civil judgments/decisions of foreign Courts in Vietnam are contrary to basic principles of law of the Socialist Republic of Vietnam.

Article 440. Foreign Courts having jurisdiction to settle disputes and requests

Any foreign Court issuing a judgment/decision that is being considered to be recognized and enforced in Vietnam shall have jurisdiction to settle the civil case in the following cases:

1. The civil case does not fall within the exclusive jurisdiction of Vietnam’s Courts specified in Article 470 of this Code;

2. The civil case falls in a case specified in Article 469 of this Code but has one of the following conditions:

a) The defendant participate in oral argument without appeal against the jurisdiction of such foreign Court;

b) Not any judgment/decision issued by a third country for such civil case is recognized and enforced by Vietnam’s Court;

c) Such civil case has been accepted by a foreign Court before being accepted by a Vietnam’s Court.

Article 441. Sending of decisions of Courts

1. Within 15 days from the day on which the decision specified in clause 5 Article 438 of this Code is issued, the Court shall send such to involved parties or their lawful representatives, the Ministry of Justice and the procuracy of the same level.

2. Within 05 working days from the day on which the decision to suspend or terminate the resolution of the application provided for in clauses 4 and 5 Article 437 of this Code is issued, the Court shall send such decision to involved parties or their lawful representatives, the Ministry of Justice and the procuracy of the same level.

3. Immediately when decisions to apply, modify or cancel a provisional emergency measure specified in clause 6 Article 438 of this Code is issued, the Court shall send such decision to involved parties or their lawful representatives, competent civil-judgment-executing bodies, the Ministry of Justice and the procuracy of the same level.

4. The sending of decisions of the Court to involved parties living overseas shall comply with methods specified in Article 474 of this Code.

Article 442. Appeals

1. Within 07 days from the day on which the Court issue the decision to suspend/terminate the consideration of the application, and 15 days from the day on which the Court issue the decision to recognize and enforce or to not recognize the judgment/decision of a foreign Court, involved parties and their lawful representatives may file an appeal against such decision; if the involved parties and their lawful representatives did not attend the meeting for considering the application, the time limit for filing an appeal shall be counted from the day on which they receive such decision. The appellate petition must clearly state the reasons for the appeal and the appellate requests.

In cases where there are force majeure events or objective obstacles that the involved parties or their lawful representatives can not file an appeal within such time limit, the time when the force majeure events or objective obstacles occur shall not be included in the time limit for appeal.

2. The Chairpersons of the People’s Procuracies of provinces or Chairpersons of the Collegial People’s Procuracies may file appeals against the decisions of Courts specified in clauses 4 and 5 Article 437 and clause 5 Article 438 of this Code.

Time limit for filing an appeal is 07 days (applicable to the People’s Procuracies of provinces) or 10 days (applicable to Collegial People’s Procuracies) from the day on which the procuracy receives the decision.

Article 443. Consideration of appeals

1. Collegial People’s Court shall consider the decision of the People’s Court of province which is appealed against within its jurisdiction within 01 month from the day on which the documents are received; if explanation is required as prescribed in clauses 1 and 2 Article 437 of this Code, such time limit shall be extended for not exceeding 02 months.

2. Members of the Panel in charge of considering a decision that is appealed against shall be comprised of 3 Judges, one of which shall be the presiding Judge as assigned by the Chief Justice of Collegial People’s Court.

A meeting for re-considering a decision that is appealed against shall be conducted as the one for considering the application specified in Article 438 of this Code.

3. The Panel for considering the decision being appealed against shall have the following powers:

a) To uphold the decision of the first-instance Court;

b) To modify partially of wholly the decision of the first-instance Court;

c) To suspend the settlement of the appeal;

d) To terminate the settlement of the appeal;

dd) To repeal the decision of the first-instance Court and forward the dossiers to such first-instance Court for re-settlement according to first-instance procedures;

e) To repeal the decision of first-instance Court and terminate the consideration of the application when existing any of circumstances specified in clause 5 Article 437 of this Code.

4. A decision of a Collegial People’s Court shall take legal effect from the day on which it is issued and may be appealed according to cassation or reopening procedures according to provisions of this Code.

Section 2. PROCEDURES FOR CONSIDERATION OF APPLICATIONS FOR NON-RECOGNITION OF CIVIL JUDGMENTS OR DECISIONS OF FOREIGN COURTS

Section 444. Prescriptive periods for application for non-recognition in Vietnam of civil judgments/decisions of foreign Court

1. Within 03 years from the day on which the civil judgment/decision of a foreign Court takes legal effect, the judgment debtors or their lawful representatives may request Vietnam’s Court to not recognize such civil judgment/decision.

2. In cases where the applicant can prove that he/she cannot submit the application within the time limit specified in clause 1 of this Article due to a force majeure event or an objective obstruct, the time periods when such force majeure event or objective obstruct occurs shall not be included in the time limit for submission of application.

Section 445. Application for non-recognition in Vietnam of civil judgments/decisions of foreign Court

1. The applicant specified in clause 1 Article 444 of this Code must file an application. Such application must contain the following principal details:

a) Full names and addresses of residence places or work places of the judgments debtors; if the judgments debtors are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed; in cases where the judgment debtors being individuals do not have residence places or work places in Vietnam or the judgment debtors being agencies or organizations do not have head-offices in Vietnam, their applications must also specify the addresses of the places where exist the properties and assorted properties relating to the enforcement in Vietnam of foreign courts’ civil judgments/decisions;

b) Full names and addresses of residence places or work places of the judgment creditors or their lawful representatives; if the judgment creditors are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed;

c) Requests of judgment debtors; where foreign courts’ judgments/decisions have been partly enforced, the application must clearly state the executed parts and the remaining parts requested for non-recognition in Vietnam.

2. Applications in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

Section 446. Application for non-recognition in Vietnam of civil judgments/decisions of foreign Court

1. The applications shall be enclosed with papers and documents specified in the International treaties to which the Socialist Republic of Vietnam is a signatory. If the Socialist Republic of Vietnam and the home country of the Court issuing the judgment/decision have not been co-signatories of an International treaty having provisions for such matter, the application shall be enclosed with the originals or certified true copy of the judgment/decision issued by the foreign Court and papers and documents proving the request for non-recognition.

2. Papers and documents enclosed with the application that are in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

3. Procedures for consideration of the application, the sending of decision of the Court, the filing of appeals and the consideration of the appeals shall be conducted according to regulations in corresponding articles in Section 1 of this Chapter.

Section 3. PROCEDURES FOR NON-RECOGNITION OF CIVIL JUDGMENTS OR DECISIONS OF FOREIGN COURTS WHICH ARE NOT REQUESTED TO BE ENFORCED IN VIETNAM

Section 447. Prescriptive periods for application for non-recognition of civil judgments or decisions of foreign Courts which are not requested to be enforced in Vietnam

1. Within 06 months from the day on which the civil judgment/decision of a foreign Court takes legal effect but there is no request for enforcement of such Judgment/decision in Vietnam, then involved parties and persons with relevant legitimate rights and interests or their lawful representatives may submit their application to Vietnam’s Ministry of Justice according to provisions of International treaty to which the Socialist Republic of Vietnam and home country of such foreign Court are co-signatories or to a competent Vietnam’s Court specified in this Code, in case the International treaty to which the Socialist Republic of Vietnam is a signatory does not provide for or there is no relevant International treaty provisions, to request the Court to not recognize such civil judgment/decision.

2. In cases where the applicant can prove that he/she cannot submit the application within the time limit specified in clause 1 of this Article due to a force majeure event or an objective obstruct, the time period when such force majeure event or objective obstruct occurs shall not be included in the time limit for submission of application.

Section 448. Application for non-recognition of civil judgments or decisions of foreign Courts which are not requested to be enforced in Vietnam

1. An application for non-recognition of a civil judgment/decision of a foreign Court which is not requested to be enforced in Vietnam must have the following principal details:

a) Full names and addresses of residence places or work places of the applicants; if the applicants are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed;

b) Requests of the applicants.

2. Enclosed with the application shall be the originals or certified true copies of the civil judgment/decision of foreign Court and necessary papers and documents for proving that the request for unrecognition is well-grounded and lawful.

3. The application and accompanying papers and documents that are in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

Section 449. Procedures for acceptance and processing of application for non-recognition of a civil judgment/decision of a foreign Court which is not requested to be enforced in Vietnam

1. The acceptance of application, the preparation for consideration of application and the meeting for considering the application for non-recognition of a civil judgment/decision of a foreign Court which is not requested to be enforced in Vietnam shall be conducted according to regulations in Articles 436, 437 and 438 of this Code.

2. The Panel considering the application may any of the following decisions:

a) To not recognize the civil judgment/decision of the foreign Court;

b) To reject the application for non-recognition.

3. A civil judgment/decision of a foreign Court which is not requested to be enforced in Vietnam shall not be recognized in cases specified in Article 439 of this Code.

Article 450. Sending decisions of Courts and regulations on appeal

The sending of decisions of Courts; the appeal and the consideration of an appeal shall comply with regulations in Article 441, 442 and 443 of this Code.

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