Chương l Luật Hòa giải, đối thoại tại Tòa án 2020: Những quy định chung

Chapter l

GENERAL PROVISIONS

Article 1. Scope

1. This Law sets forth the State's principles and policies on mediation or dialogue at court; rights and obligations of mediators at court, parties to mediation or dialogues at court; responsibilities of the court in mediation or dialogue activities; procedures for mediation, dialogue and recognition of successful mediation or successful dialogue at court.

2. Mediation or dialogue under this Law shall be carried out before the court accepts cases related to disputes over civil matters, marriage and family, business, commerce and labor; before the court accepts the request for recognition of amicable divorce; or administrative cases falling under the jurisdiction of the court as per regulations of the Civil Procedure Code or the Law on Administrative Procedures.

3. This Law does not apply to mediation or dialogues activities provided for by other laws.

Article 2. Interpretation of terms

For the purpose of this Law, the terms below are construed as follows:

1. “mediator at court” (hereinafter referred to as mediator) means a person who is eligible and appointed by the Chief Judge of the People's Court of province to mediate disputes over civil matters, marriage and family, business, commerce, labor, requests for recognition of amicable divorce (hereinafter referred to as civil cases) and dialogues for administrative lawsuits in accordance with this Law.

2. “mediation at court” refers to mediation activity conducted by a Mediator before the court accepts a civil case in order to assist parties in mediation to negotiate the civil case settlement as per this Law.

3. “dialogue at court” means a dialogue conducted by a mediator before the court accepts an administrative case, in order to assist the parties in dialogue to negotiate the settlement of administrative lawsuit as per this Law.

4. “successful mediation” means that parties in mediation, through mediation, voluntarily agree on the settlement of all or part of the civil case which is not related to other parts of the civil case.

5. “successful dialogue” means that parties in dialogue, through dialogue, voluntarily agree on the resolution of all or part of the administrative lawsuit, which is not related to other parts of that administrative lawsuit.

6. “parties in mediation” are agencies, organizations and individuals (hereinafter referred to as entities) involved in civil cases as per the Civil Procedure Code.

7. “parties in dialogue” mean entities related to administrative lawsuits as per the Law on Administrative Procedure.

8. “representatives” refers to legal representatives and authorized representatives as per the Civil Code.

Article 3. Principles of mediation or dialogue at court

1. Parties in mediation or dialogue (hereinafter referred to as parties) must voluntarily participate in mediation or dialogue.

2. Respect the willingness and agreement of the parties; it is forbidden to force the parties to agree against their will.

3. Ensure equality of rights and obligations between the parties.

4. The content of a mediation or dialogue agreement does not violate the prohibition of the law, is not contrary to social morality, is not intended to evade obligations to the State or other agencies, organizations or individuals, and does not infringe lawful rights and interests of other entities.

5. Information relating to mediation or dialogue must be kept confidential in accordance with Article 4 of this Law.

6. Methods of mediation or dialogue are conducted flexibly and in accordance with the actual situation and features of each type of case.

7. Mediators shall conduct mediation or dialogue in an independent manner and in accordance with law.

8. The spoken and written language used in mediation or dialogue is Vietnamese. Participants in mediation or dialogue have the right to use the spoken and written language of their ethnic group; in this case, they may, by themselves or request the mediator to, engage an interpreter for them.

Participants in mediation or dialogue are people who have hearing, speech, or vision disabilities have the right to use language, symbols and words dedicated for people with disabilities; in this case, sign language interpreters, oral interpreters, or cued-speech interpreters must be engaged.

9. Ensuring gender equality, protecting children's legitimate rights and interests in mediation or dialogue.

Article 4. Confidentiality of mediation or dialogue at court

1. Mediators, parties, and other entities who are invited to participate in mediation or dialogue must not disclose information they know in the process of mediation or dialogue.

2. During the mediation or dialogue process, no audio-recording or video-recording is allowed and no minutes of mediation or dialogue is taken. The minutes is only taken to record the outcome of mediation or dialogue as prescribed in Article 31 of this Law. Mediators and the parties may only take notes for the purpose of mediation or dialogue and must keep the notes confidential.

3. Documents and presentations of the parties in the process of mediation or dialogue must not be used as evidence in the course of case settlement as per the law, except for the following cases:

a) The party that has presented documents and presented opinions during the mediation or dialogue process has agreed to use the documents and presentations during the mediation or dialogue process as evidence;

b) The documents and presentations must be used as evidence in accordance with the law.

4. Entities that violate the provisions of Clauses 1, 2 and 3 of this Article shall be sanctioned as per the law.

Article 5. State policies on mediation or dialogue at court

The State encourages the parties to resolve civil cases and administrative lawsuits in the form of mediation or dialogue at court; encourage qualified persons as prescribed in this Law to act as mediators and facilitate mediation or dialogue activities at court.

Article 6. Budget for mediation or dialogue at court

1. The State shall set aside funding for mediation or dialogue at court from the state budget and other lawful funding sources in accordance with law.

2. The budget for mediation or dialogue at court shall be submitted to the National Assembly for decision after obtaining consent of the Supreme People's Court.

3. The Minister of Finance shall stipulate the making of budget estimates, management, use and settlement of budget for mediation or dialogue at court.

Article 7. Responsibilities of the people's courts in mediation or dialogue at court

1. The Supreme People's Court has the following responsibilities:

a) Organize and manage mediation or dialogue activities as per this Law;

b) Provide training, refresher courses on professional practices, mediation or dialogue skills; stipulate procedures for the grant, withdrawal and use of the Mediator card;

c) Cooperate with the Government in seeking approval for the budget for mediation or dialogue at court from the National Assembly;

d) Guide and inspect the management, use and settlement of budget for mediation or dialogue at court in accordance with law;

dd) Examine the implementation and handling of violations in mediation or dialogue;

e) Handle complaints against decisions on claim handling of People's Court of province;

g) Report to the National Assembly on mediation or dialogues at court in their annual reports;

h) Perform other duties as prescribed in this Law.

2. The People's Court of province has the following responsibilities:

a) Organize mediation or dialogue activities as per this Law;

b) Appoint, re-appoint, dismiss, delete the mediator's name; grant and withdraw mediators' cards;

c) Provide refresher courses in professional practices; give commendation and deal with violations committed by mediators;

d) Appoint, support and guide the mediator to conduct mediation or dialogue; evaluate and comment on the performance of mediators of People's Court of province;

dd) Arrange locations, equipment and other conditions for mediation or dialogue at court;

e) Handle complaints about decisions of the Chief Judge of People's Court of province on discharge of mediators;

g) Report on mediation or dialogue at court as per regulations of the Chief Justice of the Supreme People's Court;

h) Perform other duties as prescribed in this Law.

3. The People's Court of district has the following responsibilities:

a) Organize mediation or dialogue activities as per this Law;

b) Request the People’s Court of province to appoint, re-appoint or dismiss the mediator;

c) Appoint, support and guide the mediator to conduct mediation or dialogue; evaluate and comment on the performance of the mediator; provide refresher courses in professional practices; give commendation and request actions against violations committed by mediators of People's Court of districts;

d) Arrange locations, equipment and other conditions for mediation or dialogue at court;

dd) Report on mediation or dialogue at court as per regulations of the Chief Justice of the Supreme People's Court;

e) Perform other duties as prescribed in this Law.

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

Article 8. Rights and obligations of parties in mediation or dialogue at court

1. The parties have the following rights:

a) Agree or refuse to participate in mediation, dialogue or terminate mediation or dialogue;

b) Participate in mediation or dialogue in person or through a representative as specified in Clauses 2 and 3, Article 25 of this Law;

c) Choose a mediator from the list of mediators of a court that has jurisdiction to settle civil cases or administrative lawsuits; in cases falling under the jurisdiction of People's Court of district, a mediator of other People's Court of district in the same administrative boundaries with the People’s Court of province may be selected;

d) Propose to change the mediator in accordance with this Law;

d) Engage an interpreter, by themselves or upon request to the mediator, in case where the participants in the mediation or dialogues do not know Vietnamese or have hearing, speech or vision disabilities;

e) Request the mediator, participants in mediation or dialogue, other entities, and the judge who attends the meeting to record the outcome of mediation or dialogue to keep their provided information confidential;

g) Express will, propose methods and solutions for settling disputes, requests and complaints; agree on the content of mediation or dialogue;

h) Request the court to recognize the successful mediation or successful dialogue;

i) Request the obligor to fulfill obligations as agreed in the successful mediation or successful dialogue;

k) Request the competent court to reconsider the decision on recognition of successful mediation or successful dialogue in accordance with this Law.

2. The parties have the following obligations:

a) Comply with law;

b) Participate in mediation, dialogue in an amicable and cooperative manner to promote the mediation process, dialogue to achieve positive outcome; present accurately the details and contents of the case, promptly provide complete information, documents and evidence related to the case at the request of the mediator;

c) Take responsibility for the authenticity of the information, documents and evidence provided during the mediation or dialogue process; if any information, document or evidence provided is fake, the outcome of mediation or dialogue will be invalidated; in case of any criminal indication, they shall be handled as per the criminal law; if causing damage to other entities, they must pay restitution therefor as per the law;

d) Respect mediators and relevant parties; execute requests of mediators in accordance with this Law;

dd) Abide by the regulations on mediation or dialogue at court;

e) Fulfill obligations as agreed in the successful mediation or successful dialogue.

Article 9. Costs incurred in mediation or dialogue at court

1. The costs incurred in mediation or dialogue at court shall be covered by the state budget, except for the cases specified in Clause 2 of this Article.

2. The parties in mediation or dialogue at court must bear the following costs:

a) Mediation costs for disputes on business and trade related to monetary claim;

b) Costs incurred when the parties agree to select a place for mediation or dialogue outside the court's headquarters; costs incurred when the mediator examines the current state of assets related to the civil case or administrative lawsuit which are outside the administrative boundaries of the province where the competent court is located;

c) Costs incurred in foreign language interpretation.

3. The Government shall elaborate the rates and procedures for collection and remittance, management and use of the costs prescribed in Clause 2 of this Article.