Chương III Luật tố tụng hành chính 2010: Cơ quan tiến hành tố tụng, người tiến hành tố tụng và việc thay đổi người tiến hành tố tụng

Chapter III

PROCEDURE-CONDUCTING AGENCIES AND PERSONS AND CHANGE OF PROCEDURE-CONDUCTING PERSONS

Article 34. Procedure-conducting agencies and persons

1. Administrative procedure-conducting agencies include:

a/ People's courts;

b/ People's procuracies.

2. Administrative procedure-conducting persons include:

a/ Court presidents, judges, people's jurors and court clerks;

b/ Directors of procuracies and procurators.

Article 35. Tasks and powers of presidents of courts

1. Presidents of courts have the following tasks and powers:

a/ To organize the work of settling administrative cases under their courts' jurisdiction;

b/ To assign judges to settle administrative cases, people's jurors to participate in trial panels of administrative cases; to assign court clerks to conduct procedures for administrative cases;

c/ To decide to change judges, people's jurors and court clerks before the opening of court hearings;

d/ To decide to change experts and interpreters before the opening of court hearings;

e/ To issue decisions and conduct administrative procedures;

f/ To file protests against legally effective court judgments or rulings according to cassation or reopening procedures;

g/ To settle complaints and denunciations.

2. The president of a court may authorize a vice president to perform his/her tasks and exercise his/her powers provided in Clause 1 of this Article. Authorized vice presidents shall be answerable to the presidents of courts for the performance of their assigned tasks.

Article 36. Tasks and powers of judges

1. To make case files.

2. To decide to apply, change or cancel provisional urgent measures.

3. To decide to terminate or suspend the settlement of administrative cases.

4. To organize dialogues between involved parties upon request.

5. To decide to bring administrative cases to trial.

6. To decide to summon participants in court hearings.

7. To participate in trying administrative cases.

8. To conduct procedural activities and vote on matters falling under the jurisdiction of trial panels.

Article 37. Tasks and powers of people's jurors

1. To study case files.

2. To request presidents of courts and judges assigned to settle administrative cases to issue necessary decisions within their competence.

3. To participate in trying administrative cases.

4. To conduct procedural activities and vote on matters falling under the jurisdiction of trial panels.

Article 38. Tasks and powers of court clerks

1. To make necessary professional preparations before the opening of court hearings.

2. To announce internal rules of court hearings.

3. To report to trial panels on the presence or absence of participants in court hearings who have been summoned by the court and reasons for their absence.

4. To write minutes of court hearings.

5. To conduct other procedural activities under this Law.

Article 39. Tasks and powers of directors of procuracies

1. When supervising the law observance in administrative procedural activities, directors of procuracies have the following tasks and powers:

a/ To organize and direct the supervision of the law observance in administrative procedures;

b/ To assign procurators to supervise the law observance in administrative procedures, participate in court hearings and sessions to settle administrative cases;

c/ To examine procurators' activities of supervising law observance in administrative procedures;

d/ To decide to change procurators

e/ To file protests against court judgments or rulings according to appellate, cassation or reopening procedures;

f/ To settle complaints and denunciations under this Law.

2. The director of a procuracy may authorize a vice director to perform his/her tasks and exercise his/her powers provided in Clause 1 of this Article. Authorized vice directors shall be answerable to the directors of procuracies for the performance of their assigned tasks.

Article 40. Tasks and powers of procurators

1. To supervise the law observance in (he settlement of administrative cases.

2. To supervise the law observance by procedure participants.

3. To participate in court hearings and sessions to settle administrative cases.

4. To supervise court judgments and rulings.

5. To perform other tasks and exercise other powers failing under procuracies' competence as assigned by their directors.

Article 41. Cases of refusal or change of procedure-conducting persons

Procedure-conducting persons shall refuse to conduct procedures or be changed in the following cases:

1. They are concurrently involved parties, representatives or relatives of these parties;

2. They have participated in the capacity as defense counsel of the rights and legitimate interests of involved parties, witness, expert or interpreter in the same case;

3. They have participated in the issuance of administrative decisions or are related to administrative acts over which lawsuits are instituted;

4. They have participated in the issuance of decisions on settlement of complaints about administrative decisions or acts over which lawsuits are instituted;

5. They have participated in the issuance of disciplinary decisions on dismissal of civil servants or decisions on settlement of complaints about disciplinary decisions on dismissal of civil servants over which lawsuits are instituted;

6. They have participated in the issuance of decisions on handling of competition cases or decisions on settlement of complaints about decisions on handling of competition cases over which lawsuits are instituted;

7. They have participated in the making of lists of voters to elect deputies to the National Assembly or to People's Councils over which lawsuits are instituted;

8. There are clear grounds to believe that they might not be impartial while performing their tasks.

Article 42. Change of judges or people's jurors

Judges or people's jurors shall refuse to conduct procedures or be changed in the following cases:

1. They fall into one of the cases specified in Article 41 of this Law;

2. They are relatives of other members of the trial panel;

3. They have participated in the first-instance, appellate, cassation or reopening trial of the same case, unless they are members of the Judges' Council of the Supreme People's Court or the judges' committee of a provincial court who are allowed to participate in trying a case for many times according to cassation or reopening procedures;

4. They have conducted procedures in the same case in the capacity as procurator or court clerk.

Article 43. Change of procurators

Procurators shall refuse to conduct procedures or be changed in the following cases:

1. They fall into one of the cases specified in Article 41 of this Law;

2. They have conducted procedures in the same case in the capacity as judge, people's juror, procurator or court clerk;

3. They are relatives of a member of the trial panel of the case.

Article 44. Change of court clerks

Court clerks shall refuse to conduct procedures or be changed in the following cases:

1. They fall into one of the cases specified in Article 41 of this Law;

2. They have conducted procedures in the same case in the capacity as judge, people's juror, procurator or court clerk;

3. They are relatives of one of other procedure participants in the case.

Article 45. Procedures for refusing to conduct procedures or requesting change of procedure-conducting persons

1. The refusal to conduct procedures or request for change of procedure-conducting persons before the opening of a court hearing must be recorded in writing, clearly stating the reason and ground for such refusal or request.

2. The refusal to conduct procedures or request for change of procedure-conducting persons at a court hearing must be recorded in the court hearing minutes.

Article 46. Decisions on change of procedure-conducting persons

1. Before the opening of a court hearing, the change of a judge, people's juror or court clerk shall be decided by the president of the court. If the judge requested to be changed is the president of the court, the change shall be decided by the president of the immediate superior court.

Before the opening of a court hearing, the change of a procurator shall be decided by the director of the same-level procuracy. If the procurator requested to be changed is the director of the procuracy, the change shall be decided by the director of the immediate superior procuracy.

2. During a court hearing, the change of a judge, people's juror, court clerk or procurator shall be decided by the trial panel after hearing opinions of the person requested to be changed. The trial panel shall discuss the change in the deliberation room and decide thereon by majority.

In case a judge, people's juror, court clerk or procurator must be changed, the trial panel shall issue a decision to postpone the court hearing under this Law. The appointment of anew judge, people's juror, court clerk or procurator shall be decided by the president of the court. If the changed person is the president of the court, the appointment shall be decided by the president of the immediate superior court. The appointment of a new procurator shall be decided by the director of the same-level procuracy. If the changed procurator is the director of the procuracy, the appointment shall be decided by the director of the immediate superior procuracy.

3. Within 7 working days after the court hearing is postponed, the president of the court or the director of the procuracy shall appoint a person in replacement of the changed one.

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