Chương XXXVIII Bộ luật tố tụng dân sự 2015: Quy định chung về thủ tục giải quyết vụ việc dân sự có yếu tố nước ngoài

CHAPTER XXXVIII

GENERAL PROVISIONS FOR PROCEDURES FOR SETTLEMENT OF CIVIL CASES INVOLVING FOREIGN ELEMENTS

Article 464. Principles of application

1. This Part provides for jurisdiction, procedures for settlement of civil cases involving foreign elements; if a case is not provided for in this Part, other relevant provisions of this Code shall be applied.

2. A civil case involving foreign elements means a civil case falling in any of the following cases:

a) At least one party is a foreign individual/agency/organization;

b) All parties are Vietnamese citizens/agencies/organizations but the relationship is established, changed, developed or broken up in a foreign country;

c) All parties are Vietnamese citizens, agencies and organizations but the parties of such civil relationship are overseas.

3. Judicial assistance activities in civil procedure shall be conducted according to regulations of law on Judicial assistance.

Article 465. Procedural rights and obligations of foreigners, foreign agencies and organizations and branches or representatives offices of foreign agencies and organizations and international organizations or their representatives in Vietnam, States of foreign countries

1. Foreigners, foreign agencies and organizations, international organizations, representative offices of international organizations in Vietnam may initiate lawsuits to Vietnamese Courts to request the protection of their legitimate rights and interests when being infringed upon or when being in dispute.

Foreigners, foreign agencies and organizations, international organizations, representative offices of international organizations in Vietnam may initiate lawsuits to Vietnamese Courts to request the protection of their legitimate rights and interests when being infringed upon or when being in dispute.

2. When participating in civil procedures, foreigners, foreign agencies and organizations and branches or representatives offices in Vietnam of foreign agencies and foreign organizations and international organizations or their representatives in Vietnam and States of foreign countries shall have rights and obligations to conduct procedures like Vietnamese citizens, agencies and organizations.

3. The Vietnamese State may apply the principle of reciprocity to restrict relevant civil procedural rights of foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam which the Courts of their countries have restricted towards Vietnamese citizens, agencies and organizations, and branches and representative offices of overseas Vietnamese agencies and organizations.

Article 466. Civil-procedure legal capacity and civil-procedure act capacity of foreigners

1. Civil-procedure legal capacity and civil-procedure act capacity of a foreigner shall be determined as follows:

a) Under the law of the country of which he/she is a citizen. For a stateless foreigner, his/ her civil-procedure legal capacity and civil-procedure act capacity shall be determined under the law of the country where he/she resides. For a stateless foreigner residing in Vietnam, his /her civil-procedure legal capacity and civil- procedure act capacity shall be determined under Vietnamese law;

b) If the foreigner has different foreign citizenships, his /her civil procedure legal capacity and civil-procedure act capacity shall be determined under the law of the one of the countries of which he/she is a citizens and where he/she resides.

For a foreigner who has different citizenships and resides in a country of which he/she is not a citizen, his/her civil-procedure legal capacity and civil-procedure act capacity shall be determined under the law of the country of which he/she is a citizen for the longest time;

c) Under Vietnamese law, if he/she has different citizenships including Vietnamese citizenship, or if he/she has a card for permanent residence or temporary residence in Vietnam.

2. A foreigner may have his/her civil-procedure act capacity recognized at a Vietnamese Court if he/she has such capacity in accordance with Vietnamese law in spite of not having it in accordance with the law of the relevant foreign country.

Article 467. Civil-procedure legal capacity of foreign organizations, branches or representative offices in Vietnam of foreign agencies and organizations and international organizations and their representatives offices in Vietnam and of the State of foreign countries

1. Civil-procedure legal capacity of a foreign agency or organization shall be determined in accordance with the law of the country where such agency or organization is established.

Civil-procedure legal capacity of a branch or representative office of a foreign agency or organization in Vietnam shall be determined in accordance with Vietnamese law.

2. Civil-procedure legal capacity of an international organization or its representative agency shall be determined under the International treaty based on which such organization is established, the working regulation of such organization, or the International treaty to which the Socialist Republic of Vietnam is a signatory.

If the international organization declares to waive its privileges or immunities, its civil-procedures legal capacity shall be determined in accordance with Vietnamese law.

Article 468. Protection of legitimate rights and interests involved parties being foreigners, foreign agencies and organizations, branches or representative offices in Vietnam of foreign agencies and organizations and international organizations and their representative offices in Vietnam or the State of foreign countries

The involved parties being foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam that participate in procedures at Vietnamese Courts may themselves, or ask lawyers to, defend their lawful rights and interests in accordance with Vietnamese law.

Article 469. Common jurisdiction of Vietnamese Courts to resolve civil cases involving foreign elements

1. Vietnamese Courts shall have the jurisdiction to resolve civil cases involving foreign elements in the following cases:

a) The defendant is an individual who resides, works or lives for a long term in Vietnam;

b) The defendant is an agency or organization which is headquartered in Vietnam or the defendant is an agency or organization has a branch or a representative office in Vietnam, applicable to cases related to the operation of the branch or representative office in Vietnam of such agency/organization;

c) The defendant has properties in Vietnam;

d) The divorce cases with the plaintiffs or the defendants being Vietnamese citizens or involved parties being foreigners who reside, work or live for a long term in Vietnam;

dd) Civil cases related to civil relations which are established, changed or terminated in Vietnam, objects of which are properties in Vietnam or acts performed in Vietnam;

e) Civil cases related to civil relations which are established, changed or terminated outside of Vietnam’s territory but involve rights and obligations of Vietnamese agencies, organizations and individuals or agencies, organizations and individuals that are headquartered or reside in Vietnam.

2. When the jurisdiction of Vietnamese Courts have been determined according to provisions of this Chapter, the Court shall base themselves of provisions of Chapter III of this Code to determine their specific jurisdiction to resolve the civil case involving foreign elements.

Article 470. Exclusive jurisdiction of Vietnamese Courts

1. The following civil lawsuits involving foreign elements shall fall under the exclusive jurisdiction of Vietnamese courts:

a) Civil lawsuits involving rights to properties being immovables in the Vietnamese territory;

b) Divorce case between a Vietnamese citizen and a foreign citizen or a stateless person if both spouses reside, work or live permanently in Vietnam;

c) Other civil lawsuits where parties are allowed to choose Vietnamese Courts to settle according to Vietnamese law or International treaties to which the Socialist Republic of Vietnam is a signatory and parties agreed to choose Vietnamese Courts.

2. The following civil cases involving foreign elements shall fall under the exclusive jurisdiction of Vietnamese courts:

a) Claims without dispute arising from civil legal relationships specified in clause 1 of this Article;

b) Claims for determination of a legal events occurring in Vietnam;

c) Declaration of a Vietnamese citizen or a foreigner residing in Vietnam missing or death if such declaration is related to the establishment of their rights and obligations in Vietnam, except for cases where International treaties to which the Socialist Republic of Vietnam is a signatory otherwise prescribe;

d) Declaration of foreigner residing in Vietnam having limited civil act capacity or lacking legal capacity if such declaration is related to the establishment of their rights and obligations in Vietnam;

dd) Recognition of a property in Vietnam to be derelict, recognition of the right to ownership of the current manager over derelict immovables in Vietnam.

Article 471. Not changing the jurisdiction of Courts

Any civil case involving foreign elements which has been accepted for settlement by a Vietnamese Court under this Code’s provisions on jurisdiction must be continually settled by such Court even though during the resolution process there appear changes of nationalities, residential places or addresses of involved parties or appear new details which make such civil case falls under the jurisdiction of another Vietnamese Court or foreign court.

Article 472. Returning the lawsuit petitions or applications or terminating the resolution of civil cases involving foreign elements in case arbitration agreements and/or agreements on choosing foreign Courts have been concluded or in case such civil cases have been settled by foreign Courts or foreign arbitrators or other foreign competent authorities or the involved parties are eligible for legal exemption

1. Vietnamese Courts shall return lawsuit petitions or applications or terminate the settlement of civil cases involving foreign elements if such civil cases fall in common jurisdiction of Vietnamese Courts but fall in any of the following cases:

a) Involved parties were agreed to choose dispute settlement methods according to law provisions applicable to civil relationships involving foreign elements and such involved parties have chosen foreign arbitrators or Courts to settle such cases/matters.

In case where the agreements to chose foreign arbitrators or Courts are replaced by agreements on choosing Vietnamese Courts, or the agreements to choose foreign arbitrators or Courts are annulled or cannot be executed, or where the foreign arbitrators or Courts refuse to accept the petitions, thus Vietnamese Courts shall have the jurisdiction to settle;

b) The civil cases do not fall within the exclusive jurisdiction of Vietnamese Courts specified in Article 470 of this Code and fall in the exclusive jurisdiction of relevant foreign Courts;

c) The civil cases do not fall within the exclusive jurisdiction of Vietnamese Courts specified in Article 470 of this Code and have been accepted for settlement by foreign arbitrators or Courts;

d) The civil cases are settled by judgments/decisions of the foreign Courts or by foreign arbitrators’ awards.

If such judgments/decisions or awards are not recognized by Vietnamese Courts, Vietnamese Courts shall have jurisdiction to settle such cases;

dd) The defendants are eligible for legal exemption.

2. If the petitions are returned or the settlement of civil cases involving foreign elements specified in clause 1 of this Article is terminated, the Court fee and charge advances shall be settled according to provisions of this Code.

Article 473. Requests for provision of information about record and determination of addresses of involved parties living overseas

1. The petitions or written requests must state clearly full names, addresses and nationalities of involved parties living overseas enclosed with papers and documents authenticating full names, addresses and nationalities of such involved parties.

If full names, addresses and nationalties of involved parties living overseas are not fully specified, they must be completed within a time limit specified by the Courts; past such time limit, if such information are not fully provided, the Courts shall return such petitions/requests.

2. If addresses of the involved parties living overseas are not identifiable, the litigators/requesters may request Vietnamese Courts to request competent authorities of foreign countries to determine addresses of the involved parties or may request competent authorities to find the persons who are absent from their resident places or request Vietnamese Courts or foreign competent authorities to declare involved parties missing or death according to Vietnamese law or law of the foreign countries or International treaties to which the Socialist Republic of Vietnam is a signatory.

If the competent authorities of foreign countries respond to Vietnamese Courts that addresses of the involved parties living overseas are not identifiable or after 06 months from the day on with the petitions/requests are received, not any response are made, the Courts shall return such petitions/requests.

Article 474. Methods of delivering and notifying courts’ procedural documents to overseas involved parties

1. The Court shall deliver or notify its procedural documents by any of the following methods:

a) Methods prescribed in International treaties to which the Socialist Republic of Vietnam is a signatory;

b/ Through the diplomatic channel, for involved parties residing in countries that are not a co-signatories with the Socialist Republic of Vietnam to a International treaty;

c) By post to addresses of involved parties currently residing in foreign countries if such methods are accepted by the laws of such countries;

d) By post to overseas representative missions of the Socialist Republic of Vietnam for being delivered to the involved parties being overseas Vietnamese citizens;

dd/ Through its representative office or branch in Vietnam in accordance with this provisions of this Code, applicable to foreign agencies or organizations having representative offices or branches in Vietnam;

e) By post to legal representatives or proxy representatives in Vietnam of involved parties living overseas.

2. Methods of delivery specified at Points a and b Clause 1 of this Article must comply with the law on Judicial assistance.

3. If the modes of delivery specified in Clause 1 of this Article are unsuccessfully applied, the Court shall post up the procedural document at the head office of the relevant overseas representative mission of the Socialist Republic of Vietnam, the Court currently processing the case, or the last place of residence of the involved party in Vietnam for 01 month and on the e-portal of the Court (if any) and the e-portal of the overseas representative mission of the Socialist Republic of Vietnam. In necessary cases, the Court may broadcast such on the central radio or television channels specialized for foreigners three times for 03 consecutive days.

Article 475. Collection of evidences from foreign countries

The Courts shall collect evidences in any of the following methods:

1. Those specified in points a and b clause 1 Article 474 of this Code;

2. Request by post involved parties being Vietnamese citizens residing overseas to send papers, materials and evidences to the Vietnamese Court.

Article 476. Notification of acceptance of cases, date for opening meetings or Court sessions

1. The Court shall send a notice of acceptance of the case to overseas involved parties, clearly stating the time and venue for holding the meeting for checking the handover of, access to, and disclosure of evidences and mediation (hereinafter referred to as the meeting), resumption of the meeting, and opening or resumption of the Court session.

2. The time limit for opening a Court session or a meeting for mediating shall be determined as follows:

a) A meeting for mediating shall be opened not earlier than 06 months and not later than 08 months after the issuance of a written notice of acceptance of the case. The date of resumption of a mediation meeting (if any) shall be fixed within 01 month after the date of opening such meeting;

b) A Court session shall be opened not earlier than 09 months and not later than 12 months after the issuance of a written notice of acceptance of the case. The date of resumption of a Court session (if any) shall be fixed within 01 month after the date of opening such Court session, except for cases specified in Clause 4 Article 477 of this Code.

3. The Court shall send a notice of acceptance of the civil matter to overseas involved parties, clearly stating the time and venue for opening or resuming the meeting for settling a civil matter.

The meeting shall be opened not earlier than 06 months and not later than 08 months after the issuance of a written notice of acceptance of the civil matter. The date of resumption of a meeting for settling civil matter (if any) shall be fixed within 01 month after the date of opening the initial meeting.

Article 477. Handling of results of delivery of Court’s procedural documents to overseas involved parties and results of requesting of foreign competent authorities to collect evidences

Upon receiving results of delivery of the court’s procedural document and results of collection of evidences in a foreign country, the court, on the case-by-case basis, shall:

1. Not hold a mediation meeting when it has received the delivery results by one of the methods specified in Clause 1 Article 474 of this Code and the involved parties have provided sufficient testimonies, materials and evidences, and the civil lawsuit falls into the case where no mediation can be held prescribed in Article 207 of this Code;

2. Postpone the mediation meeting if it has received the notice of delivery completion but until the date of holding the m, it receives no testimonies, documents or evidences from the involved parties that do not ask for permitted absence from the mediation meeting. In case overseas involved parties are still absent on the day the mediation meeting is resumed, the Court shall consider it impossible for conducting the mediation;

3. Postpone the Court session in the following cases:

a) Overseas involved parties request in writing the postponement of the first Court session;

b) Overseas involved parties are absent from the first Court session, unless they make a written petition for trial to be conducted in their absence;

4. Postpone the Court session, if it receives no notice of delivery results or testimonies, materials or evidences of overseas involved parties and, on the date of opening the Court session, these involved parties are still absent and make no written request for trial to be conducted in their absence. Immediately after the postponement of the Court session, the Court shall request in writing the Ministry of Justice or overseas representative mission of the Socialist Republic of Vietnam to notify the delivery of the court’s procedural document to the involved parties in case the Court makes the delivery via this mission by one of the methods prescribed in Points a, b and d Clause 1 Article 474 of this Code.

Within 01 month after receiving the court’s request, the overseas representative mission of the Socialist Republic of Vietnam shall notify the Court of the result of delivery of the procedural document to the overseas involved parties.

Within 10 days after receiving the court’s request, the Ministry of Justice shall request in writing the competent foreign authority to give a reply on the result of request for judicial assistance.

Within 5 working days after receiving the reply from the competent foreign authority, the Ministry of Justice shall give a reply to the court.

Past the 3-month time limit from the date of transferring the court’s request to the competent foreign agency, if receiving no reply, the Ministry of Justice shall notify such to the Court for use as a ground for settlement of the case;

5. Conduct trial in the absence of overseas involved parties in the following cases:

a) It has received the result of delivery of the procedural document to the involved parties by one of the methods prescribed in Clause 1 Article 474 of this Code and the involved parties have provided sufficient testimonies, documents or evidences and requested the Court to conduct trial in their absence;

b) It has taken measures mentioned in Clause 3 Article 474 of this Code.

c) It receives no notice from the competent authority mentioned in Clause 4 of this Article regarding the delivery result;

6. If the Court receives a written notification of that the delivery cannot be completed because name and address of the involved party is inaccurate or the involved party has moved to another address that is unknown to the Court, then the Court shall:

a) Request the plaintiff and relatives in Vietnam of overseas involved party (if any) to provide it with correct or new address of the overseas involved party. Continue the delivery of the notice of acceptance to overseas involved party according to the address provided by the plaintiff or the relatives in Vietnam of the overseas involved party;

b) Make a decision to terminate the resolution of the case, in case the plaintiff or the relative in Vietnam of the involved party fails to or refuse to provide correct or new address of the overseas involved party or the overseas party does not have a relative in Vietnam. Concurrently, the Court shall explain to the litigator the right to request the Court to issue notice of finding an involved party absent from his/her residence or request the Court to declare an involved party missing or death;

c) If the plaintiff is a Vietnamese citizen who applies for divorcing a foreigner living overseas but fails to provide accurately such foreigner’s full name or new address at the request of the Court though the plaintiff and/or his/her relatives or Vietnamese or foreign competent authorities have conducted verification of news and/or address of such foreigner, then the plaintiff shall request the Court to post the notification on its e-portal (if any), e-portal of the consular offices of the Socialist Republic of Vietnam in foreign countries. If it is deemed necessary, at the request of the plaintiff, the Court may make notification via central radio or television channels specialized for foreigners three times for 03 consecutive days.

In such case, the Court is not required to re-deliver the procedural documents to overseas involved party. Past the 1-month time limit from the day on which the notification is posted, the Court shall conduct the trial in the absence of the involved party.

Article 478. Recognition of papers and materials sent by foreign agencies, organizations, or individuals to Vietnamese Courts

1. Vietnamese Courts shall recognize papers and documents made, issued or certified by competent foreign agencies or organizations in the following cases:

a) Papers, materials and notarized or certified Vietnamese translations have been legalized by consular offices;

b) Papers and documents are exempt from consular legalization in accordance with Vietnamese law or International treaties to which the Socialist Republic of Vietnam is a signatory.

2. Vietnamese Courts shall recognize papers and materials made by overseas individuals in the following cases:

a) Foreign-language papers and documents already translated into Vietnamese are lawfully notarized or certified in accordance with the Vietnamese law;

b) Papers and documents made in a foreign country are notarized or certified in accordance with the law of that country and have been legalized by consular offices;

c) Papers and documents made in Vietnamese by overseas Vietnamese citizens with their signatures certified in accordance with Vietnamese law.

Article 479. Time limit for appealing against Court judgments or decisions on trial of civil lawsuits involving foreign elements

1. Involved parties present in Vietnam may appeal against a Court judgment or decision within the time limit specified in Article 273 of this Code.

2. For overseas involved parties who are absent from the Court session, the time limit for them to appeal against a Court judgment or decision is 01 month after such judgment or decision is duly delivered or posted up in accordance with law.

3. In case the Court conducts trial in the absence of overseas involved parties under Point b, Clause 5, Article 477 of this Code, the time limit for filing an appeal is 12 months since the judgment is pronounced.

Article 480. Delivery or notification of procedural documents of appellate Courts to overseas involved parties and handling of delivery or notification results

Appellate Courts shall deliver or notify procedural documents to overseas involved parties and handle delivery or notification results in accordance with Articles 474, 476 and 477 of this Code.

Article 481. Determination and provision of foreign law for the Court to apply in the settlement of civil cases involving foreign elements

If the Vietnamese Court apply a foreign law to settle a civil case involving foreign element according to provisions of Vietnamese law and/or of an International treaty to which the Socialist Republic of Vietnam is a signatory, the responsibility for determining and providing foreign shall be performed as follows:

1. If the involved party of a civil case is allowed to choose a foreign law to be applied, he/she shall provide the foreign law he/she has chosen for the Court being in charge of such case. The involved party shall be responsible for the accuracy and legitimacy of the foreign law he/she provides for the Court.

If involved parties fail to agreed with each other about the foreign law to be chosen or in necessary cases, the Court shall request the Ministry of Justice, the Ministry of Foreign Affairs, consular offices of the Socialist Republic of Vietnam in foreign countries or request the diplomatic missions of foreign countries in Vietnam (via the Ministry of Foreign Affairs) to provide the foreign laws;

2. If Vietnamese law and/or International treaties to which the Socialist Republic of Vietnam is a signatory provide for that foreign laws shall be applied, the involved parties may provide foreign laws for the Court or the Court shall request the Ministry of Justice, the Ministry of Foreign Affairs or consular offices of the Socialist Republic of Vietnam in foreign countries to provide it with foreign laws;

3. The Court may request agencies, organizations and individuals professional in foreign laws to provide it with information about foreign laws;

4. Past the 06-month time limit from the date of request for provision of foreign laws as provided for in this Article, if there is no response, the Court shall apply Vietnamese law to settle the civil case.