Chương VI Luật tố tụng hành chính 2010: Chứng minh và chứng cứ

Chapter VI

PROVING AND EVIDENCE

Article 72. Burden of proof in administrative procedures

1. Plaintiffs are obliged to provide copies of administrative decisions, disciplinary decisions on dismissal, decisions on settlement of complaints about decisions on handling of competition cases or decisions on settlement of complaints (if any) and furnish other evidence to protect their rights and legitimate interests. In case of failure to do so, they shall clearly slate reasons.

2. Defendants are obliged to provide courts with dossiers of complaint settlement (if any) and copies of documents based on which administrative decisions, disciplinary decisions on dismissal or decisions on settlement of complaints about decisions on handling of competition cases have been issued or administrative acts have been taken.

3. Persons with related interests and obligations are obliged to provide evidence to protect their rights and legitimate interests.

Article 73. Circumstances and facts which are not required to be proved

1. The following circumstances and facts are not required to be proved:

a/ Those which are conspicuous to everyone's knowledge and accepted by the court;

b/ Those which have been identified in legally effective court judgments or rulings;

c/ Those which have been documented and duly notarized or authenticated.

2. If an involved party acknowledges or does not object to circumstances or facts invoked by the other involved party, the latter is not required to prove them. If an involved party has a representative to participate in procedures, this representative's acknowledgement or non-objection is regarded as such involved party's acknowledgement.

Article 74. Evidence

Evidence in administrative cases includes factual things which are handed to courts by involved parties or other individuals, agencies or organizations or collected by courts according to the order and procedures specified in this Law and are used by courts as grounds for determining whether claims or objections of involved parties are grounded and lawful as well as other circumstances necessary for the proper settlement of administrative cases.

Article 75. Sources of evidence

Evidence is collected from the following sources:

1. Readable, audible or visible materials;

2. Exhibits;

3. Testimonies of involved parties;

4. Testimonies of witnesses;

5. Expert conclusions;

6. Written records of on-site assessment results;

7. Asset valuation and price appraisal results;

8. Other sources specified by law.

Article 76. Identification of evidence

1. Readable materials shall be regarded as evidence is they are originals or lawfully notarized or authenticated copies or provided and certified by competent agencies or organizations.

2. Audible or visible materials shall be regarded as evidence if they are presented together with documents certifying their origins or documents on events related to such audio or video recording.

3. Exhibits to be regarded as evidence must be the original and related to cases or matters being settled.

4. Testimonies of involved parties or witnesses shall be regarded as evidence if they are recorded in writing or in audio tapes or disks or video tapes or disks as prescribed in Clause 2 of this Article or are orally made at court hearings.

5. Expert conclusions shall be regarded as evidence if the expert examination is conducted according to procedures specified by law.

6. Written records of on-site assessment results shall be regarded as evidence if the assessment is conducted according to procedures specified by law and they are signed by members who participate in the assessment.

7. Asset valuation and price appraisal results shall be regarded as evidence if the valuation or appraisal is conducted according to law-prescribed procedures or they are provided by price experts under law.

Article 77. Handover of evidence

1. In the course of settlement of an administrative case by the court, involved parties have the right and obligation to hand over evidence to the court. If they fail to hand over evidence or fail to hand over all evidence, they shall bear all consequences of their failure, unless otherwise provided by law.

2. The handover of evidence by involved parties to the court must be recorded in a minutes of evidence handover and receipt. The minutes must clearly indicate appellations, forms, contents and features of evidence; number of copies and number of pages of evidence and time of receipt; signatures or fingerprints of deliverers and recipients and seal of the court. A minutes shall be made in 2 copies, one shall be included in the administrative case file and the other handed to the involved party that has handed over the evidence.

3. Evidence handed over by involved parties to the court which is in an ethnic minority or a foreign language must be enclosed with its duly notarized or authenticated Vietnamese translation.

Article 78. Verification and collection of evidence

1. If finding that evidence included in administrative case files is inadequate for settling the cases, judges assigned to settle the cases shall request involved parties to hand over additional evidence.

2. In case involved parties are unable to collect evidence by themselves and request the collection of such evidence or when finding it necessary, courts may verify or collect evidence by themselves or entrust verification or collection of evidence for clarifying circumstances of cases.

3. Procuracies may request courts to verify or collect evidence in the course of settlement of cases. In case procuracies protest against court judgments or rulings, they may collect document, materials and evidence by themselves in the course of settlement of cases.

4. Measures to verify or collect evidence include:

a/ Taking testimonies of involved parties;

b/ Taking testimonies of witnesses;

c/ Holding a confrontation;

d/ Conducting on-site inspection and assessment;

e/ Soliciting expert opinions;

f/ Deciding on asset valuation and price appraisal;

g/ Entrusting the collection of evidence;

h/ Requesting individuals, agencies or organizations to provide evidence.

Article 79. Taking of testimonies of involved parties

1. Judges shall take testimonies of involved parties only when the latter have not yet made written testimonies or contents of involved parties' testimonies are inadequate or unclear. Involved parties shall write their testimonies by themselves and sign their names thereon. In case involved parties are unable to write testimonies, judges shall take testimonies. The taking of testimonies of involved parties must only focus on circumstances inadequately or unclearly testified by involved parties. Judges themselves or court clerks shall record testimonies of involved parties in minutes. Judges shall take testimonies of involved parties in the court house or outside the court house when necessary.

2. Minutes recording testimonies of involved parties must be read or heard and signed or fingerprinted by these involved parties themselves. Involved parties may request modifications or supplementations to be written in the minutes and then sign or fingerprint for certification. A minutes must be signed by the person who takes the testimonies and the minutes recorder and appended with the seal of the court. For minutes made in loose pages, each page must be signed and every adjoining two pages appended with a seal. For minutes recording testimonies of involved parties made outside the court house, the testimony taking must be certified by witnesses or by commune-level People's Committees or police offices of the places or by agencies or organizations in which these minutes are made. For involved parties who are illiterate, there must be witnesses chosen by them.

3. The taking of testimonies of involved parties who are aged under 18 or persons with restricted civil act capacity must be conducted in the presence of their at-law representatives, managers or caretakers.

Article 80. Taking of testimonies of witnesses

1. At the request of involved parties or when finding it necessary, judges shall take testimonies of witnesses.

2. Procedures for taking testimonies of witnesses are the same as those for taking testimonies of involved parties specified in Article 79 of this Law.

Article 81. Confrontation

1. At the request of involved parties or when finding contradictions in testimonies of involved parties or witnesses, judges shall hold, a confrontation among involved parties, between involved parties and witnesses or among witnesses.

2. The confrontation must be recorded with the signatures of confrontation participants.

Article 82. On-site inspection and assessment

1. On-site inspection and assessment must be conducted by judges in the presence of representatives of commune-level People's Committees or agencies or organizations in which objects to be inspected or assessed exist On-site inspection and assessment must be notified in advance to involved parties so that they can know and witness such inspection and assessment.

2. On-site inspection and assessment must be recorded in minutes. A minutes must clearly state results of inspection and assessment, clearly describe the site and bear the signatures of persons conducting the inspection and assessment and signatures or fingerprints of involved parties if they are present, representatives of commune-level People's Committees or agencies or organizations in which objects to be inspected or assessed exist and other persons invited to participate in the inspection and assessment. After completing the minutes, persons conducting the inspection and assessment shall request representatives of commune-level People's Committees or agencies or organizations in which objects to be inspected or assessed exist to sign and seal such minutes for certification.

Article 83. Soliciting of expert opinions

1. At the request of involved parties or when finding ft necessary, judges shall issue decisions to solicit expert opinions. A decision to solicit expert opinions must clearly indicate the name and address of the expert, object(s) and matters which need to be expert-examined, and specific requirements requiring conclusions of the expert.

2. Experts that receive decisions to solicit expert opinions shall conduct the examination under law.

3. If., finding expert conclusions are inadequate or unclear or in violation of law, judges shall issue decisions on additional examination or re-examination at the request of involved party(ies).

An expert that has conducted the previous examination may not conduct the re-examination.

Article 84. Soliciting of expert opinions on evidence denounced to be forgery

1. In case an evidence is denounced to be forgery, the provider of such evidence may withdraw it. In case an evidence denounced to be forgery is not withdrawn, the court may decide to solicit expert opinions on it under Article 83 of this Law.

2. In case the evidence forgery shows signs of a crime, the court shall transfer it to a competent investigative agency for examination of penal liability.

3. Providers of forged evidence shall compensate for damage if the forgery of evidence causes damage to others.

Article 85. Asset valuation and price appraisal

1. Courts shall issue decisions on asset valuation and price appraisal at the request of involved party(ies) or when they find it necessary.

2. A valuation council set up by a court is composed of its chairman being the representative of the finance agency and its members being representatives of related professional agencies. A valuation council shall conduct the valuation only when all of its members are present. In case of necessity, representatives of the commune-level People's Committee of the locality in which assets subject to valuation are located shall be invited to witness the valuation. Involved parties shall be notified in advance of the time and venue of the valuation and may attend and give their opinions on the valuation. The competence to decide on prices of valuated assets rests with the valuation council.

3. The finance agency and related professional agencies shall appoint their persons to join the valuation council and create conditions for them to perform their tasks. Persons appointed to be members of a valuation council shall take part in the whole process of valuation.

4. The valuation must be recorded in minutes, clearly stating opinions of each member and involved parties if they attend. A decision of the valuation council must be voted for by more than half of its members. Members of the valuation council, involved parties and witnesses shall sign the minutes.

5. The Supreme People's Court shall guide the issuance of decisions on asset price appraisal by courts.

Article 86. Entrustment of collection of evidence

1. In the course of settlement of an administrative case, the court may issue a decision to entrust another court or a competent agency specified in Clause 4 of this Article to take testimonies of involved parties and witnesses, to conduct on-site assessment, asset valuation or other measures to collect evidence and verify circumstances of the administrative case.

2. An entrustment decision must clearly state the names and addresses of the plaintiff, the defendant and specific entrusted jobs to collect evidence.

3. A court that receives an entrustment decision shall perform specific entrusted jobs within 30 days after receiving the entrustment decision and notify in writing results to the court that has issued the entrustment decision. If it cannot perform entrusted jobs, it shall notify such in writing, clearly stating the reason to the court that has issued the entrustment decision.

4. In case evidence has to be collected outside the Vietnamese territory, courts shall carry out procedures for entrustment through competent Vietnamese agencies or authorities of foreign countries under treaties to which Vietnam and these foreign countries are contracting members, or on the principles of reciprocity, non- contravention of Vietnamese law and conformity with international law and practice.

Article 87. Request for provision of evidence by individuals, agencies and organizations

1. In case involved parties have taken all necessary measures but still fail to collect evidence by themselves, they may request the court to do so in order to assure the settlement of the administrative case.

Involved parties that request the court to collect evidence shall make written requests clearly indicating matters to be proved; evidence to be collected; reason(s) why they cannot collect evidence by themselves; full names and addresses of individuals, agencies or organizations that are managing or keeping evidence which need to be collected.

2. Courts or procuracies may request individuals, agencies and organizations that are managing or keeping evidence to provide them.

Individuals, agencies and organizations that are managing or keeping evidence shall provide evidence fully and promptly as requested by courts or procuracies within 15 days after receiving requests. In case they fail to provide evidence fully and promptly as requested by courts or procuracies, they shall, depending on the severity of their violations, be handled under law.

Article 88. Preservation of evidence

1. The preservation of evidence which has been handed over to courts rests with these courts.

2. The preservation of evidence which cannot be handed over to courts rests with their current keepers.

3. When necessary to hand over evidence to third parties for preservation, judges shall issue decisions and make minutes of the handover of evidence to these parties for preservation. Persons undertaking the preservation shall sign the minutes, enjoy remuneration and take responsibility for the preservation of evidence.

Article 89. Assessment of evidence

1. The assessment of evidence must be objective, comprehensive, adequate and accurate.

2. Courts shall assess evidence one by one, the link between evidence and confirm the legality of every evidence.

Article 90. Disclosure and use of evidence

1. Every evidence shall be publicly and equally disclosed and used, except the case specified in Clause 2 of this Article.

2. Courts shall not publicly disclose evidence pertaining state secrets, fine national customs and traditions, professional secrets, business secrets and personal privacy at the legitimate request of involved parties.

3. Procedure-conducting persons and procedure participants shall keep secret, as required by law, evidence not to be publicly disclosed under Article 2 of this Article.

Article 91. Protection of evidence

1. In case evidence is being destroyed or in danger of being destroyed or is hard to be collected in the future, involved parties may request in writing the court to decide on application of all necessary measures to preserve evidence. The court may decide to apply one or several of the measures of sealing, keeping, photographing, audio-recording, video- recording, restoration, examination, minutes making and other measures.

2. In case a witness is intimidated, controlled or bought off for the purpose of not providing evidence or providing untruthful evidence, the court may decide to force the person who has intimidated, controlled or bought off the witness to terminate his/her act. In case the act of intimidating, controlling or buying off the witness show signs of a crime, the court shall transfer it to a competent investigative agency for penal liability examination.