Chương IV Luật tố tụng hành chính 2010: Người tham gia tố tụng, quyền và nghĩa vụ của người tham gia tố tụng

Chapter IV

PROCEDURE PARTICIPANTS AND THEIR RIGHTS AND OBLIGATIONS

Article 47. Procedure participants

Administrative procedure participants include involved parties, representatives of involved parties, defense counsels of the rights and legitimate interests of involved parties, witnesses, experts and interpreters.

Article 48. Administrative procedure law capacity and administrative procedure act capacity of involved parties

1. Administrative procedure law capacity means the capacity to have law-established rights and obligations in administrative procedures. All individuals, agencies and organizations have the same administrative procedure law capacity in requesting courts to protect their rights and legitimate interests.

2. Administrative procedure act capacity means the capacity of a person to exercise his/ her administrative procedure rights or perform his/her administrative procedure obligations on his/her own or to authorize a representative to participate in administrative procedures.

3. An involved party who is full 18 years or older has the full administrative procedure act capacity, except those who have lost their civil act capacity or otherwise provided by law.

4. An involved party who is a minor or a person who has lost his/her civil act capacity shall exercise his/her rights and perform his/her obligations in administrative procedures through his/her at-law representative.

5. An involved party that is an agency or organization shall exercise its right and perform its obligation in administrative procedures through its at-law representative.

Article 49. Rights and obligations of involved parties

1. To provide documents and evidence to prove and protect their rights and legitimate interests.

2. To get access to, read, take note of, copy and see documents and evidence provided by other involved parties or collected by the court.

3. To request individuals, agencies and organizations that are keeping or managing evidence to provide this evidence for furnishing it to the court.

4. To request the court to verify or collect evidence of the case which they cannot verify or collect; to request (he court to summon witnesses, solicit expert examinations and assessment or valuation of assets or appraisal of asset prices.

5. To request the court to apply, change or cancel provisional urgent measures.

6. To participate in court hearings.

7. To request the court to suspend the settlement of the case.

8. To authorize in writing lawyers or other persons to represent them in participating in procedures.

9. To request change of procedure-conducting persons or procedure participants.

10. To request the court to summon persons with related interests and obligations to participate in procedures.

11. To enter into dialogues in the course of settlement of the case by the court.

12. To receive valid notices for exercising their rights and performing their obligations.

13. To defend their rights and legitimate interests or ask other persons to do so.

14. To argue at court hearings.

15. To appeal against or complain about court judgments or rulings.

16. To request competent persons to file protests against legally effective court judgments or rulings according to cassation or reopening procedures.

17. To be provided with extracts of court judgments, court judgments or rulings.

18. To provide sufficiently and promptly relevant documents and evidence at the request of the court.

19. To be present in response to court summonses and abide by court rulings in the course of settlement of the case.

20. To respect the court and strictly observe internal rules of court hearings.

21. To pay court fee and legal cost advances, court fees and legal costs in accordance with law.

22. To strictly abide by legally effective court judgments and rulings.

23. Other rights and obligations provided by law.

Article 50. Rights and obligations of plaintiffs

1. The rights and obligations of involved parties specified in Article 49 of this Law

2. To withdraw part or whole of their lawsuit claims; to change or supplement contents of their lawsuit claims within the statute of limitations for lawsuit institution.

Article 51. Rights and obligations of defendants

1. The rights and obligations of involved parties specified in Article 49 of this Law.

2. To be informed by the court of lawsuits against them.

3. To modify or cancel administrative decisions, disciplinary decisions on dismissal, decisions on settlement of complaints about decisions on handling of competition cases or voter lists over which lawsuits are instituted; to stop or remedy administrative acts over which lawsuits are instituted.

Article 52. Rights and obligations of persons with related interests and obligations

1. Persons with related interests and obligations may make independent claims and participate in procedures on the side of the plaintiff or the defendant.

2. Persons with related interests and obligations that make independent claims have the rights and obligations of the plaintiff specified in Article 50 of this Law.

3. Persons with related interests and obligations that participate in procedures on the side of the plaintiff or have interests only have the rights and obligations specified in Article 49 of this Law.

4. Persons with related interests and obligations that participate in procedures on the side of the defendant or have obligations only have the rights and obligations specified in Clauses 1 and 2, Article 51 of this Law.

Article 53. Inheritance of administrative procedural rights and obligations

1. In case the plaintiff being an individual is dead and his/her rights and obligations are bequeathed, his/her heir may participate in procedures.

2. In case the plaintiff being an agency or organization is consolidated, merged, split up, divided or dissolved, the agency, organization or individual that inherits the rights of obligations of the former shall exercise the procedural rights and perform the procedural obligations of such agency or organization.

3. In case the defendant is a competent person in an agency or organization which is consolidated, merged, split up, divided or dissolved, the person who takes over the rights and obligations of the defendant shall participate in judicial procedures.

In case the defendant is a competent person in an agency or organization whose post no longer exists, the head of this agency or organization shall exercise the rights and perform the obligations of the defendant.

4. In case the defendant is an agency or organization which is consolidated, merged, divided or split up, the agency or organization inheriting the rights and obligations of the former shall exercise the procedural rights and perform the procedural obligations of such agency or organization.

In case the defendant is a dissolved agency or organization with nobody to inherit its rights and obligations, its superior agency or organization shall exercise the rights and perform the obligations of the defendant.

5. The inheritance of procedural rights and obligations may be accepted by the court at any stage in the settlement of an administrative case.

Article 54. Representatives

1. Representatives in administrative procedures include at-law representatives and authorized representatives.

2. An at-Law representative in administrative procedures may be any of the following persons, unless his/her representation right is restricted under law:

a/ Father or mother for a minor child;

b/ Guardian for a ward;

c/ Head of an agency or organization who is appointed or elected under law;

d/ Household head for a household;

e/ Head of a cooperative group;

f/ Other persons defined by law.

3. Authorized representatives in administrative procedures must be full 18 years or older, have the civil act capacity, and authorized in writing by involved parties or their at-law representatives.

4. At-law representatives and authorized representatives in administrative procedures shall terminate their representation under the Civil Code.

5. At-law representatives in administrative procedures shall exercise administrative procedural rights and perform administrative procedural obligations of involved parties whom they represent.

Authorized representatives in administrative procedures shall exercise all administrative procedural rights and perform all administrative procedural obligations of their authorizers. An authorized person may not sub-authorize a third party.

6. The following persons may not act as representatives:

a/ Those being involved parties in the same case with to-be-represented persons with their rights and legitimate interests conflicting with those of to-be-represented persons;

b/ Those currently acting as representatives in administrative procedures for other involved parties, whose rights and legitimate interests conflicting with those of to-be-represented persons in the same case.

7. Cadres and civil servants of courts, procuracies, inspectorates and judgment enforcement agencies; civil servants, officers and non-commissioned officers in public security forces may not act as representatives in administrative procedures, unless they participate in the capacity as representatives of their agencies or as at-law representatives.

Article 55. Defense counsels of the rights and legitimate interests of involved parties

1. Defense counsels of the rights and legitimate interests of involved parties arc persons asked by involved parties and accepted by the court to participate in administrative procedures to protect the rights and legitimate interests of involved parties.

2. The following persons may be accepted by the court to act as defense counsels of the rights and legitimate interests of involved parties:

a/ Lawyers who participate in procedures under the law on lawyers;

b/ Legal counsels or persons who jointly provide legal aid under the Law on Legal Aid;

c/ Vietnamese citizens who have the full civil act capacity and legal knowledge, have not yet been convicted or had been convicted but have had their criminal records remitted, are not subject to the administrative measure of confinement to a medical treatment or educational establishment, and are not cadres or civil servants of courts, procuracies, inspectorates and judgment enforcement agencies or civil servants, officers or non-commissioned officers in public security forces.

3. Defense counsels of the rights and legitimate interests of involved parties may defend the rights and legitimate interests of many involved parties in the same case, provided the rights and legitimate interests of these parties are not conflicting. Many defense counsels may jointly defend the rights and legitimate interests of an involved party in a case.

4. Defense counsels of the rights and legitimate interests of involved parties have the following rights and obligations:

a/ To participate in procedures from the time when the lawsuit is instituted or at any stage of the proceeding process;

b/ To verify or collect evidence and furnish the court with evidence, study case files and take note of and copy documents included in case files for the purpose of protecting the rights and legitimate interests of involved parties;

c/ To participate in court hearings or prepare documents for protection of the rights and legitimate interests of involved parties;

d/ To request on behalf of involved parties change of procedure-conducting persons and other procedure participants under this Law;

e/ To argue at court hearings;

f/ To be present in response to court summons;

g/ To respect the court and strictly observe internal rules of court hearings.

Article 56. Witnesses

1. Witnesses are persons who know circumstances related to cases and are summoned by the court to participate in procedures. Persons who have lost the civil act capacity may not act as witness.

2. Witnesses have the following rights and obligations:

a/ To provide all information, documents and objects in their possession which are related to the settlement of cases;

b/ To honestly testify to circumstances which they know and are related to the settlement of cases;

c/ To be held responsible before law for their testimonies, and pay compensations for damage caused by their untruthful testimonies to involved parties or other persons;

d/ To be present at court hearings in response to court summonses in case witness testimonies must be publicly taken at court hearings. In case witnesses are absent from court hearings without plausible reasons and their absence impedes the trial, the trial panel may issue decisions to escort them to court hearings;

e/ To undertake before court to exercise their rights and perform their obligations, except minor witnesses;

f/ To refuse to make testimonies if their testimonies are related to state secrets, professional secrets, business secrets or privacy secrets or badly or adversely affect involved parties who are their relatives;

g/ To take leaves during the time they are summoned by the court or make testimonies;

h/ To have travel expenses paid and enjoy other regimes provided by law;

i/ To request courts that have summoned them and competent state agencies to protect their lives, health, honor, dignity, assets, rights and other legitimate interests when they participate in procedures;

j/ To complain about procedural acts, and denounce illegal acts of procedure-conducting agencies and persons.

3. Witnesses who make untruthful testimonies, provide untruthful documents, refuse to make testimonies or fail to be present in response to court summonses without plausible reasons shall be held responsible before law.

Article 57. Experts

1. Experts are persons who possess necessary knowledge and experience, as required by law, about the fields in which exist objects to be expert-examined, who are selected under agreement between involved parties or invited by the court to expert-examine these objects at the request of involved party(ies).

2. Experts have the following rights and obligations:

a/ To read documents included in case files and related to expert-examined objects; to request the court to provide documents necessary for the expert examination;

b/ To question procedure participants about matters related to expert-examined objects;

c/ To be present in response to court summonses and answer questions related to the expert examination;

d/ To notify in writing the court of the impossibility to expert-examine for the reason that contents which need to be expert-examined are beyond their professional capacity or documents provided for the expert examination are insufficient or unusable;

e/ To preserve received documents and return them to the court together with expert conclusions or with a notice of the impossibility to expert-examine;

f/ To refrain from collecting documents by themselves for conducting expert examination or contacting other procedure participants if such contact might affect expert examination results; neither to disclose secret information which they know while conducting expert examination nor notify expert examination results to persons other than those who have decided to solicit expert opinions;

g/ To make independent, honest and grounded expert conclusions;

h/ To have travel expenses paid and enjoy other regimes provided by law;

i/ To undertake before court to exercise their rights and perform their powers.

3. Experts who refuse to make expert conclusions without plausible reasons, make untruthful conclusions or fail to be present in response to court summonses without plausible reasons shall be held responsible before law.

4. Experts shall refuse to conduct expert examination or be changed in the following cases:

a/ They are concurrently involved parties, representatives or relatives of involved parties;

b/ They have participated in procedures in the capacity as defense counsels of the rights and legitimate interests of involved parties, witnesses or interpreters in the same case;

c/ They have examined the same object which needs to be examined in the same case;

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

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

Article 58. Interpreters

1. Interpreters are persons who are capable of translating another language into Vietnamese and vice versa when a procedure participant cannot speak Vietnamese. Interpreters are selected under agreement between involved parties and accepted by the court or required by the court to interpret.

2. Interpreters have the following rights and obligations:

a/ To be present in response to court summonses;

b/ To interpret truthfully, objectively and correctly;

c/ To request procedure-conducting persons and procedure participants to further explain their statements which need to be interpreted;

d/ To refrain from contacting other procedure participants if such contact affects the truthfulness, objectiveness and correctness of their interpretation;

e/ To have travel expenses paid and enjoy other regimes provided by law;

f/ To undertake before court to exercise their rights and perform their obligations.

3. Interpreters who deliberately make untruthful interpretations or fail to be present in response to court summonses without plausible reasons shall be held responsible before law.

4. Interpreters shall refuse to interpret or be changed in the following cases:

a/ They are concurrently involved parties, representatives or relatives of involved parties;

b/ They have participated in procedures in the capacity as defense counsels of the rights and legitimate interests of involved parties, witnesses or experts in the same case;

c/ They have conducted procedures in the capacity as judge, people's juror, court clerk or procurator;

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

5. The provisions of this Article also apply to persons who know the sign language of the dumb or the deaf.

In case only the representative or relatives of a dumb or deaf person knows his/her sign language, this representative or relatives may be accepted by the court to act as his/her interpreter.

Article 59. Procedures for refusing to conduct expert examination or interpretation or requesting change of experts or interpreters

1. Before the opening of a court hearing, the refusal to conduct expert examination or interpretation or the request for change of an expert or interpreter shall be made in writing, clearly stating the reason for refusal or requested change. The change of an expert or interpreter shall be decided by the court president.

2. At a court hearing, the refusal to conduct expert examination or interpretation or the request for change of an expert or interpreter shall be recorded in the court hearing minutes. The change of an expert or interpreter shall be decided by the trial panel after hearing opinions of the person requested to be changed.