Chương III Luật Hòa giải, đối thoại tại Tòa án 2020: Trình tự, thủ tục hòa giải, đối thoại và công nhận kết quả hòa giải, đối thoại tại tòa án

Chapter III

PROCEDURES FOR MEDIATION OR DIALOGUE AND RECOGNITION OF OUTCOME OF MEDIATION OR DIALOGUE AT COURT

Article 16. Procedures for receiving and handling lawsuit petitions and petitions at courts and appointing mediators

1. The lawsuit petitioner or petitioner (hereinafter referred to as petitioner) shall send a petition to resolve civil case or administrative lawsuit enclosed with documents and evidences to the competent as prescribed in Article 190 of Civil Procedure Code, Article 119 of the Administrative Procedure Law.

2. The Court shall receive the petition, record it the register, and acknowledge the petition as provided for in Clause 1, Article 191 of the Civil Procedure Code, Clause 1, Article 121 of the Administrative Procedure Law.

3. Within 2 working days after receiving such a petition, if it does not fall into one of the cases prescribed in Clauses 1, 2, 4, 6 and 7, Article 19 of this Law, the Court shall notify in writing the petitioner of the right to choose mediation or dialogue and to select mediator in accordance with this Law.

4. Within 3 working days after receiving the court's notice, the petitioner in Clause 3 of this Article must reply in writing or in other forms to the court as to the court’s notice. In case the petitioner comes to the court in person to present his/her opinion, the court shall make a record bearing his/her signature or fingerprint. Upon expiry of this time limit, as the case may be, the court shall take the following actions:

a) Assign a judge in charge of mediation or dialogue to perform his/her duties as prescribed in this Law if the petitioner agrees to participate in mediation or dialogue;

b) Transfer the petition for handling in accordance with the procedural law if the petitioner refuses to participate in mediation or dialogue;

c) Notify the petitioner for the second time to choose mediation or dialogue and select a mediator if he/she has not yet provided a reply.

5. After 3 working days after receiving the second notice specified at Point c, Clause 4 of this Article, if the petitioner still fails to respond, the court shall assign the judge in charge of mediation or dialogue to perform the tasks prescribed by this Law.

6. In cases where the petitioner agrees to participate in mediation or dialogue under the provisions of Point a, Clause 4 of this Article or where he/she fails to reply to the courts under Clause 5 of this Article, within 03 working days, the judge in charge of mediation or dialogue shall appoint a mediator in accordance with Article 17 of this Law.

7. The Court shall notify in writing the transfer of the case to mediation or dialogue and decision on appointment of mediator to the mediator, the petitioner, the respondent, and persons with related rights and obligations.

If the selected mediator is on the list of mediators of another district-level People's Court, the decision on appointment of the mediator must be sent to that Court.

8. Within 03 working days after receiving the court's notice prescribed in Clause 7 of this Article, the respondent must reply in writing or in other forms expressing his/her consent or dissent to the mediation or dialogue. Upon expiry of this time limit, as the case may be, the court shall take the following actions:

a) The mediator shall conduct mediation or dialogue if the respondent agrees to mediation, dialogue or does not answer the court;

b) The judge in charge of mediation or dialogue shall appoint another mediator if the respondent requests to change the mediator;

c) The Court shall refer the petition for handling according to the procedural law if the defendant refuses to participate in mediation or dialogue.

9. The length of time for receipt and handling of the petition prescribed in this Law does not count towards the prescriptive period for initiating a lawsuit, the time limit for processing the petition as per the Civil Procedure Code and the Law on Administrative Procedure if the case is resolved in accordance with the procedural law.

10. The Chief Justice of the Supreme People's Court shall elaborate this Article.

Article 17. Selection and appointment of mediators

1. Each case is mediated by 01 mediator.

2. The petitioner may select a mediator from the list of mediators of the court that is competent to settle the case and must notify the full name and address of the mediator to that court.

3. In cases where the petitioner chooses a mediator from the list of mediators of other district-level People's Courts on the same administrative division with the People’s Court of province, the petitioner must notify the name and address of the mediator to the court that is competent to resolve the case and the court where the mediator has worked and the selected mediator.

Within 03 working days after receiving the notice of selection of mediator, the selected mediator must give a written consent or dissent to the judge in charge of mediation or dialogue, the court where the mediator has worked and the petitioner.

Within 02 working days after receiving the written consent of the mediator, the court where the mediator has worked shall give a written consent or dissent to such selection and send it to the court that is competent to resolve the case and the mediator; and the mediator shall send such a notice to the petitioner.

In case of receiving a dissent from the mediator or from the court where the mediator has worked, the petitioner may choose another mediator.

4. The judge in charge of mediation or dialogue of the court where the case is settled shall appoint the mediator at the choice of the petitioner in the following cases:

a) According to Clause 2 of this Article;

b) According to Clause 3 of this Article, with the consent of the selected mediator and the court for which that mediator has worked;

c) According to Point c Clause 1 Article 18 of this Law.

5. The judge in charge of mediation or dialogue of the court where the case is settled shall, at his/her discretion, appoint the mediator in the following cases:

a) The petitioner fails to select the mediator as per Clauses 2 and 3 of this Article;

b) The selected mediator or the court for which that mediator has worked gives dissent to the selection as prescribed in Clause 3 of this Article and the parties do not choose another mediator;

c) The mediator refuses to conduct mediation, dialogue or is requested to be changed as prescribed in Clause 1, Article 18 of this Law but the parties do not choose another mediator;

d) The respondent requests a change of mediator as prescribed in Point b Clause 8 Article 16 of this Law.

6. The appointment of mediators as per Clause 5 of this Article must be based on the nature of each case; in cases where the case is related to a person under 18 years of age, the judge shall appoint a mediator with experience and psychological knowledge of persons under 18 years of age.

Article 18. Refusal to mediation, dialogue, change of mediator

1. A mediator must give a refusal when selected, appointed or changed in one of the following cases:

a) He/she has rights and obligations related to the case undergoing the mediation or dialogue;

b) It is well founded that he/she may not be impartial and objective while performing his/her duties;

c) The parties change the assigned mediator and agree to select another mediator;

d) The mediation, dialogue cannot be conducted due to force majeure events or objective hindrance;

dd) He/she is dismissed or discharged in accordance with this Law.

2. Mediators who refuse to conduct mediation or dialogue specified at Points a, b and d, Clause 1 of this Article must notify the reasons to the parties, the court competent to settle the case and the court where the mediator has worked.

Parties that request to change the mediator must notify the reason to the mediator, the court competent to resolve the case and the court where the mediator has worked.

3. Within 3 working days after the mediator refuses to conduct mediation or dialogue or is requested to be changed but the parties do not agree to select a mediator, the judge in charge of mediation or dialogue shall appoint another mediator to conduct mediation, dialogue and give such a notice to the mediator and the parties.

Where the parties select another mediator, the judge in charge of mediation or dialogue shall appoint such mediator according to the parties' choice and give such a notice to the mediator and the parties.

If the judge appoints a mediator of another district-level People's Court, that Court must be notified.

Article 19. Non-conduction of mediation or dialogue at court

1. Claim compensation for damage to the State's properties.

2. Cases arising from civil transactions that violate the prohibition of law or social ethics.

3. The petitioner, the respondent, persons with related interests and obligations have been duly invited to participate in mediation or dialogue for the second time but still absent due to force majeure events or objective obstacles or unable to participate in mediation or dialogue for valid reasons.

4. A spouse in a divorce dispute is legally incapacitated.

5. One of the parties proposes not to conduct mediation or dialogue.

6. One of the parties requests the application of a provisional emergency measure as per the Civil Procedure Code and the Administrative Procedure Law.

7. Other cases as prescribed by law.

Article 20. Time limit for mediation or dialogue at court

1. The time limit for mediation or dialogue is 20 days from the date on which the mediator is appointed; for complicated cases, this time limit may be extended but must not exceed 30 days.

2. The parties may agree to extend the time for mediation or dialogue, but not exceeding 02 months.

Article 21. Preparation for mediation or dialogue at court

The work of preparing mediation or dialogue of mediators includes:

1. Receiving the application and attached documents transferred by the court;

2. Record the case in the logbook;

3. Examining the application and attached documents transferred by the court;

4. Determining litigation positions of the parties, their representatives and interpreters in the civil case or administrative lawsuit; notify them of mediation or dialogue;

5. Requesting the parties to supplement information, documents and evidence; proposing plans and solutions to resolve the civil case or administrative lawsuit;

6. Formulating plans and solutions for mediation or dialogue;

7. Invite reputable people capable of influencing each party to the mediation or dialogues for further support when necessary;

8. Studying relevant laws and regulations, understanding customs, practices and circumstances of the parties intended for mediation or dialogue when necessary;

9. Consulting with entities with expertise in fields related to the civil case or administrative lawsuit intended for mediation or dialogue when necessary;

10. Other contents necessary for mediation or dialogue.

Article 22. Modes of mediation or dialogue at courts

1. Mediation or dialogue may be conducted in one or more sessions.

2. Mediation or dialogue may be conducted at or outside the head office of the court at the parties' discretion.

3. Sessions of mediation or dialogue may be conducted in the form of direct or other appropriate forms at the request of the parties.

4. Mediators may conduct mediation or dialogue in presence of the parties or meet them separately; request each party to present their opinions on issues of the civil case or administrative lawsuit; propose solutions for mediation or dialogue.

In case one of the parties has a representative and/or an interpreter, the mediator must invite them to participate in mediation or dialogue.

Article 23. Tasks of mediators in the process of conducting mediation or dialogue at court

1. Disseminate and explain rights and obligations of the parties.

2. Enable the parties to propose and discuss plans or solutions to settle the civil case or administrative lawsuit.

3. Analyze the effectiveness and feasibility of each plan and solution for resolving the civil case or administrative lawsuit; assist parties to reach an agreement.

Article 24. Conduction of mediation or dialogue sessions at court

1. When the parties agree to meet to agree on a plan to resolve a civil case or an administrative lawsuit, the mediator shall determine the time and place for the mediation or dialogue session and give notice to the parties, representatives and interpreters at least 05 days before the opening of the mediation or dialogue session.

2. Such notice may be made in writing or in another form convenient to the parties.

Article 25. Composition of mediation or dialogue sessions at court

1. Composition of a mediation or dialogue session:

a) The mediator;

b) Parties, representatives, interpreters;

c) Persons invited to participate in the mediation or dialogue session in necessary cases.

2. The parties may, in person or through their representatives, participate in mediation or dialogue; and each party must further notify the other party and the mediator in writing of the full name and address of their representative. For divorce mediation, the parties in the spousal relationship must participate in the mediation in person.

The rights and obligations of the representatives of the parties are determined in accordance with the Civil Code.

3. The respondent in an administrative lawsuit may authorize a representative to participate in the dialogue. The authorized representative must have full authority to resolve the lawsuit.

Article 26. Procedures for mediation or dialogue sessions at court

1. The mediator introduces participants in the mediation session; present the content that needs mediation or dialogue; the process of preparation for mediation or dialogue; read the provisions of law related to the resolution of civil case or administrative lawsuit, analyze legal consequences of successful mediation or dialogue.

2. The petitioner, or his/her representative, presents the contents of the petition; proposes his/her points of view on issues that need mediation, dialogue and directions for settling the dispute or lawsuit.

3. The respondent, or his/her representative, presents his/her opinions as to the petition; proposes his/her points of view on issues that need mediation, dialogue and directions for settling the dispute or lawsuit.

4. Persons with related rights and obligations, or their representatives, present their opinions as to the petitioner or respondent; propose their points of view on issues that need mediation, dialogue and directions for settling the dispute or lawsuit.

5. Persons who are invited to participate in mediation or dialogue express their opinions.

6. The mediator performs the tasks prescribed in Article 23 of this Law to assist the parties in exchanging their opinions, making additional presentations on unclear contents and reaching agreement on the settlement of dispute or lawsuit.

7. The mediator summarizes matters that the parties have agreed upon or have not agreed upon.

Article 27. Holding a session to record the outcome of mediation or dialogue at court

1. When the parties reach an agreement on the settlement of all or part of the civil case or administrative lawsuit, the mediator shall set a time and place for the meeting to record the outcome of mediation or dialogue.

A meeting to record the outcome of the mediation or dialogue may be held immediately after the mediation or dialogue session or at another appropriate time.

The mediator must notify the persons specified in Clause 1, Article 28 of this Law.

2. The mediator shall hold a session to record the outcome of the mediation or dialogue at the head office of the court which is competent to resolve the case.

Article 28. Composition in a session to record the outcome of mediation or dialogue at court

1. Composition in a session to record the outcome of mediation or dialogue:

a) The mediator;

b) Parties, representatives, interpreters;

c) The judge in charge of mediation or dialogue or another judge assigned by the Chief Justice of the court (hereinafter referred to as the judge attending the session).

2. The authorization of the representative to attend the session to record the outcome of mediation or dialogue shall comply with the provisions of Clauses 2 and 3, Article 25 of this Law.

Article 29. Postponement of a session to record the outcome of mediation and dialogue at court

1. The mediator shall postpone a session to record the outcome of mediation or dialogue in one of the following cases:

a) One of the parties has been notified and is absent. In case of second absence not due to force majeure events or objective hindrance, the mediation or dialogue shall terminate; the mediator shall forward the application and accompanying documents to the court for settlement in accordance with Article 41 of this Law;

b) The mediator or and the judge attending the session is absent due to force majeure events or objective hindrance;

c) At the request of the parties.

2. When delaying a session, the mediator must notify in writing the persons defined in Clause 1, Article 28 of this Law. The postponement of a session shall not exceed 07 days from the date of notice of postponement of the session.

3. After the time limit specified in Clause 2 of this Article, the mediator must reopen the session to record the outcome of the mediation or dialogue.

Article 30. Procedures for a session to record the outcome of mediation and dialogue at court

1. The mediator presents a brief of the mediation or dialogue process and the contents agreed upon by the parties.

2. The parties and their representatives present their opinions on the agreed content.

3. Where the content of the agreement of the parties is unclear, the judge shall request the parties to present additional content.

4. The mediator makes a record on the mediation outcome, a record on the dialogue outcome as prescribed in Article 31 of this Law and re-reads the record to the parties.

5. The parties, representatives, interpreters bear their signatures or fingerprints, the mediator signs the record of mediation outcome and the record of dialogue outcome.

6. The judge attending the session signs the record of mediation outcome, the record of dialogue outcome and must keep the contents of mediation or dialogue provided by the parties at the session confidential at their requests.

Article 31. Record of outcome of mediation or dialogue at court

1. A record of outcome of mediation or dialogue at court must contain at least:

a) Date of the session to record outcome of mediation or dialogue;

b) Composition in the session to record the outcome of mediation or dialogue;

c) Progress of the mediation or dialogue; successful mediation or successful dialogue.

In case there is any content that the parties do not agree on, it is also written in the record;

d) In case the parties agree an amicable divorce, the agreement of the parties must contain all matters related to on divorce, property division, care for and education of minor children and/or adult children who are legally incapacitated, are incapable of work and have no property to support themselves on the basis of ensuring the legitimate interests of their spouses and children in accordance with the Law on Marriage and Family;

dd) If the content of the agreement on mediation or dialogue of the parties is related to the rights and obligations of another person but such person is not present at the mediation or dialogue session, it must be clearly stated in the record;

e) Opinions of the parties on whether or not to request the court to issue a decision on recognition of the successful mediation or successful dialogue;

g) Signatures or fingerprints of the parties, their representatives and interpreters;

h) Signature of the mediator;

i) Signature of the judge attending the session.

2. The record of mediation outcome or the record of dialogue outcome shall be kept in the documentation of mediation or dialogue and delivered to the present parties.

If the persons specified at Point e, Clause 1 of this Article are absent, the mediator must send the record to them so that they can give their comments.

3. The mediator refuses to make a record of mediation outcome or a record of dialogue outcome if falling into the cases prescribed at Point g, Clause 1, Article 14 of this Law.

Article 32. Procedures for issuing a decision to recognize or not recognize the successful mediation or successful dialogue at court

1. After making a record of mediation outcome or a record of dialogue outcome, the mediator shall transfer the record and accompanying documents to the court competent to settle the civil case or administrative lawsuit in order to issue a decision on recognition of successful mediation or successful dialogue in cases where the parties so request.

2. The time limit for preparing a decision on recognition of successful mediation or successful dialogue is 15 days from the date on which the court receives the record and accompanying documents. Within this time limit, the judge assigned by the chief justice to consider issuing the decision shall have the following rights:

a) Request one or both parties to present their opinions on the successful mediation or successful dialogue written in the record;

b) Request competent entities to provide the court with documents as the basis for making the decision when necessary. Entities receiving such a request from the court shall reply the court within 5 working days after the receipt.

3. Upon the expiry of the time limit prescribed in Clause 2 of this Article, the judge must issue one of the following decisions:

a) If all requirements prescribed in Article 33 of this Law are met, the judge shall issue a decision on recognition of successful mediation or successful dialogue;

b) If all requirements prescribed in Article 33 of this Law are not met, the judge shall issue a decision on non-recognition of successful mediation or successful dialogue and provide explanation. The judge shall transfer the decision, the record and the attached documents to the court that is competent to resolve the case in accordance with the procedural law.

4. A decision on recognition or non-recognition of successful mediation or successful dialogue shall be sent to the parties and the Procuracy of the same level within 3 working days after the court issues the decision.

Article 33. Requirements for recognition of successful mediation or successful dialogue at court

The successful mediation or successful dialogue are recognized when the following requirements are fully met:

1. The parties have full legal capacity;

2. The parties have rights and obligations with respect to the content of agreement;

3. The agreement of the parties is completely voluntary, does not violate the prohibition of the law, is not contrary to social ethics, is not intended to evade obligations to the State or other entities;

4. In case the parties agree an amicable divorce, the agreement of the parties must contain all matters related to on divorce, property division, care for and education of minor children and/or adult children who are legally incapacitated, are incapable of work and have no property to support themselves on the basis of ensuring the legitimate interests of their spouses and children in accordance with the Law on Marriage and Family;

5. If the content of the agreement on mediation or dialogue of the parties is related to the rights and obligations of another person but such person is not present at the mediation or dialogue session, such agreement shall be recognized only if such person gives consent in writing;

6. Where the parties reach an agreement on a part of the civil dispute or administrative lawsuit, that part shall be recognized only if it does not relate to other parts of the dispute or lawsuit..

Article 34. Decision on recognition of successful mediation or successful dialogue at court

A decision on recognition of successful mediation or successful dialogue must at least contain the following:

1. The date of decision;

2. Name of the issuing court;

3. Full name of the issuing judge;

4. Full names and addresses of the parties, their representatives and interpreters;

5. Content of successful mediation or successful dialogue;

6. Bases for issuing the decision on recognition of successful mediation or successful dialogue.

Article 35. Effect of decision on recognition of successful mediation or successful dialogue at court

1. The decision on recognition of successful mediation or dialogue is legally effective and cannot be appealed or protested against according to appellate procedures as per the Civil Procedure Code and the Administrative Procedure Law.

2. The decision on recognition of successful mediation shall be enforced in accordance with the law on civil judgment enforcement.

3. The decision on recognition of successful dialogue shall be enforced in accordance with the law on civil judgment enforcement.

Article 36. Proposals for reviewing decision on recognition of successful mediation or successful dialogue at court

1. A decision on recognition of successful mediation or successful dialogue may be reviewed at the request of involved parties, representatives or persons with interests and obligations related to the court’s decision and the proposal of the Procuracy, if there are grounds for presuming that the agreement of the parties violates one of the requirements prescribed in Article 33 of this Law.

2. The parties, their representatives or persons with interests and obligations related to the court's decision have the right to request a review of the decision on recognition of successful mediation or successful dialogue within 15 days from the date on which they have received or have known the decision. If they, due to force majeure or other objective hindrance, fail to exercise the right to make such a request within the time limit, such length of time does not count towards the time limit for the request.

3. The Procuracy of the same level has the right to propose a review of the decision on recognition or non-recognition of successful mediation or successful dialogue within 15 working days after receiving such decision of the court.

Article 37. Procedures for proposal for reviewing decision on recognition of successful mediation or successful dialogue at court

The person or the Procuracy proposing to reconsider the decision on recognition of successful mediation or successful dialogue must send the written request to the immediate superior Court of the court that issued such a decision.

Article 38. Procedures for handling proposal for reviewing decision on recognition of successful mediation or successful dialogue at court

1. Within 02 working days after receiving the written request for reviewing of the decision on recognition of successful mediation, successful dialogue, the superior Court shall directly request the court that issues the decision to transfer relevant documentation. Within 02 working days after receiving the request, the court that issued the decision must transfer the documentation to the immediate superior Court. Within 02 working days from the day on which the documentation is received, the immediate superior Court must accept and assign a judge to consider and resolve them; and further notify the person or procuracy sending such request and the procuracy of the same level.

2. Within 30 days after being assigned, the judge shall verify, take evidence and examine the documentation.

If there are sufficient grounds for concluding that the decision on recognition of successful mediation or successful dialogue violates one of the requirements prescribed in Article 33 of this Law, the judge shall issue a decision to cancel such decision and carry out the procedures for transfer the case to a competent court for settlement as per the Civil Procedure Code and the Administrative Procedure Law.

If there is no grounds for concluding that the decision on recognition of successful mediation or successful dialogue violates one of the requirements specified in Article 33 of this Law, the judge shall issue a decision not to accept the request and uphold the decision in question.

In case the person or procuracy making the request withdraws such request, the judge shall issue a decision to suspend the consideration of the request.

3. The decision specified in Clause 2 of this Article must be sent to the procuracy making the request, the procuracy of the same level, the persons with interests and obligations related to the request within 05 working days after making the decision.

Article 39. Decision to settle proposal for reviewing decision on recognition of successful mediation or successful dialogue at court

1. Decision to settle proposal for reviewing decision on recognition of successful mediation or successful dialogue at court must at least contain the following:

a) The date of decision:

b) Name of the issuing court;

c) Full name of the issuing judge;

d) Full name and address of the person making request; name of the Procuracy making request;

dd) Full name and address of the person with related rights and obligations;

e) Specific issues to be resolved by the court;

g) Legal grounds for handling the request;

h) Judgments of the court and grounds for accepting or not accepting the request;

i) Decision of the court.

2. The decision of the court takes legal effect from the date of issuance.

Article 40. Termination of mediation and dialogue at court

Mediation or dialogue shall terminate in one of the following cases:

1. Successful mediation or successful dialogue;

2. The parties fail to reach an agreement, agree on the whole contents of the civil case or administrative lawsuit or only agree on and reach agreement on a part of the civil case or administrative lawsuit but that part is related to other parts of the civil case or administrative lawsuit;

3. One party or the parties do not agree to continue mediation, dialogue or is/are absent after 02 valid notices of the mediation or dialogue;

4. In the course of mediation or dialogue, it is found that the case falls into circumstances prescribed in Article 19 of this Law;

5. One of the parties requests the application of a provisional emergency measure as per the Civil Procedure Code and the Administrative Procedure Law during the mediation or dialogue process;

6. The petitioner withdraws the petition.

Article 41. Handling of termination of mediation and dialogue at court

1. The mediator shall forward the application and accompanying documents to the court that has accepted the application for consideration and acceptance of the case in accordance with the Civil Procedure Code and the Law on Administrative Procedure in the cases prescribed in Clauses 2, 3, 4 and 5, Article 40 of this Law, except confidential documents prescribed in Clause 3, Article 4 of this Law.

2. In cases where the petitioner withdraws the petition as prescribed in Clause 6, Article 40 of this Law, the mediator shall forward the petition and accompanying documents to the court that has received the petition for resolution according to general regulations and notify the parties.

The judge who attends the session to recognize the outcome of mediation or dialogue must not participate in the resolution of such case according to the civil procedure or administrative proceedings.

3. The mediator shall make a record of termination of mediation or dialogue in the cases specified in Clauses 2, 3, 4 and 5, Article 40 of this Law. Within 03 working days from the date of making the record, the mediator must send the record with the petition and accompanying documents to the court that received the petition and notify the parties.