Chương VIII Luật tố tụng hành chính 2010: Khởi kiện, thụ lý vụ án

Chapter VIII

INSTITUTION AND ACCEPTANCE OF CASES

Article 103. Right to institute administrative lawsuits

1. Individuals, agencies and organizations may institute administrative lawsuits over administrative decisions or acts or disciplinary decisions on dismissal in case they disagree with these decisions or acts or they-have filed complaints with persons competent to settle complaints but their complaints remain unsettled upon the expiration of the time limit for complaint settlement specified by the law on complaints or they disagree with the settlement of their complaints about these decisions or acts.

2. Individuals and organizations may institute administrative lawsuits over decisions on settlement of complaints about decisions on handling of competition cases in case they disagree with these decisions.

3. Individuals may institute administrative lawsuits over lists of voters to elect deputies to the National Assembly or People's Councils in case they have filed complaints with agencies competent to settle complaints but their complaints remain unsettled upon the expiration of the time limit for complaint settlement specified by law or they disagree with the way of settling their complaints.

Article 104. Statute of limitations for lawsuit institution

1. The statute of limitations for lawsuit institution means a time limit within which individuals, agencies and organizations may institute lawsuits to request courts settling administrative cases to protect their infringed rights and legitimate interests. Upon the expiration of that time limit, they no longer have the right to institute lawsuits.

2. The statute of limitations for lawsuit institution for each case is specified as follows:

a/ One year from the date of receipt of or knowledge about an administrative decision or act or a disciplinary decision on dismissal;

b/ Thirty days from the date of receipt of a decision oh settlement of a complaint about a decision oil handling of a competition case;

c/ The period from the date of receipt of a notice of results of complaint settlement by the voter list-making agency or the date of expiration of the time limit for complaint settlement, in case no notice of results of complaint settlement by the voter list-making agency is Received, to the date five days prior to the election date.

3. In case plaintiffs cannot institute lawsuits within.the time limit specified at Points a and b, Clause 2 of this Article due to a force majeure event of another objective obstacle, the period of existence of such force majeure event or another objective obstacle shall not be counted in the statute of limitations for lawsuit institution.

4. The provisions of the Civil Code on the method for determining time limits and statutes of limitations are also applicable to administrative procedures.

5. The Supreme People's Court shall guide the implementation of this Article.

Article 105. Lawsuit petitions

1. A lawsuit petition must contain the following principal contents:

a/ Date of its making;

b/ Court requested to settle the administrative case;

c/ Names and addresses of the plaintiff and defendant;

d/ Contents of the administrative decision or act, the disciplinary decision on dismissal or the decision on settlement of a complaint about a decision on handling of a competition case, contents of settlement of the complaint about a voter list, or brief description of the administrative act;

e/ Contents of the decision on complaint settlement (if any);

f/ Claims requested to be settled by the court;

g/ Assurance of non-filing of a complaint with a person competent to settle complaints.

2. Lawsuit petitions shall be signed or fingerprinted by plaintiffs being individuals, signed and sealed by at-law representatives of plaintiffs being agencies or organizations. For lawsuits to protect the rights and legitimate interests of minors or persons who have lost civil act capacity, lawsuit petitions shall be signed or fingerprinted by at-law representatives of these persons. Lawsuit petitions must be enclosed with documents proving that claims of plaintiffs are grounded and lawful.

Article 106. Sending of lawsuit petitions to courts

1. Plaintiffs shall send their lawsuit petitions and enclosed documents to courts competent to settle cases by either of the following modes:

a/ Direct filing at court;

b/ Sending by post.

2. The date of lawsuit institution is the date the lawsuit petition is filed by the involved party with the court or the date postmarked by the sending post office.

Article 107. Receipt and examination of lawsuit petitions

1. Courts shall receive lawsuit petitions filed directly or sent by post by involved parties and shall record them in petition registers and issue written certifications of petition receipt to involved parties.

2. Within 5 working days after receiving a lawsuit petition, the court president shall assign a judge to examine it.

3. Within 5 working days after being assigned, the judge shall examine the lawsuit petition and enclosed documents in order to carry out one of the following procedures:

a/ Accepting the case if it is falls under the court's jurisdiction;

b/ Transferring the lawsuit petition to a competent court and notify such to the plaintiff if the case falls under another court's jurisdiction;

c/ Returning the lawsuit petition to the plaintiff, in any of the cases specified in Clause 1, Article 109 of this Law.

Article 108. Request for modification or supplementation of lawsuit petitions

1. In case a lawsuit petition does not contain all the details specified in Clause 1. Article 105 of this Law, the court shall notify such to the plaintiff for modification or supplementation of the petition within 10 working days after the plaintiff receives the court's notice.

2. In case the plaintiff has modified or supplemented his/her lawsuit petition under Clause 1. Article 105 of this Law. the court shall continue settling the case. If he/she fails to modify or supplement his/her lawsuit petition as requested by the court, the court shall return the petition and enclosed documents to the plaintiff.

Article 109. Return of lawsuit petitions

1. The court shall return a lawsuit petition in the following cases:

a/ The plaintiff has no right to institute a lawsuit;

b/ The plaintiff does not. have full administrative procedure act capacity

c/ The statute of limitations for lawsuit institution has expired and the plaintiff has no plausible reason;

d/ Conditions for instituting an administrative lawsuit are not fully met;

e/ The matter has been settled with a legally effective court judgment or ruling;

f/ The matter does not fall under the court's jurisdiction;

g/ The plaintiff chooses to have the case or matter settled according to complaint settlement procedures in the case specified in Article 31 of this Law;

h/ The lawsuit petition does not fully contain the contents specified in Clause 1, Article 105 of this Law and is neither modified nor supplemented by the plaintiff under Article 108 of this Law:

i/ The plaintiff fails to produce a receipt of the court fee advance to the court upon the expiration of the notified time limit specified in Clause 1. Article 111 of this Law, unless there is a plausible reason.

2. When returning the lawsuit petition and enclosed documents to the plaintiff, the court shall make a document clearly stating the reason for the return. The document on return of the lawsuit petition shall be sent immediately to the same-level procuracy.

Article 110. Filing and settlement of complaints or recommendations about the return of lawsuit petitions

1. Within 7 working days after receiving a document on return of the lawsuit petition, the plaintiff may file a complaint or the procuracy may file a recommendation with the president of the court, which has returned the lawsuit petition.

2. Within 3 working days after receiving a complaintor a recommendation about the return of the lawsuit petition, the court president shall issue one of the following decisions:

a/To uphold the return of the lawsuit petition and notify such to the plaintiff or the procuracy;

b/ To receive back the lawsuit petition and enclosed documents in order to accept the case.

3. If.,disagreeing with the complaint settlement decision of the court president, within 10 working days after receiving this decision, the plaintiff may fde a complaint or the same- level, procuracy may file a recommendation with the" president of the immediate superior court. Within 7 working days after receiving a complaint or recommendation, the president of the immediate superior court shall settle it. The settlement decision of the president of the immediate superior court is final.

Article 111. Acceptance of cases

1. After receiving the lawsuit petition and enclosed documents, if the judge assigned to examine the lawsuit petition finds that the administrative case fails under his/her jurisdiction, he/she shall notify such to the plaintiff for payment of a court fee advance. In case the plaintiff is exempt from, or not required to pay. the court fee advance, the assigned judge shall notify him/her of acceptance of the case. Within 10 working days after receiving a notice of court fee advance payment, the plaintiff shall pay the court fee advance.

2. The court shall accept the case on the date the plaintiff produces the court fee advance receipt. In case the plaintiff is exempt from, or not required to pay, the court fee advance, the date of case acceptance is the date the judge notifies the plaintiff of the acceptance.

Article 112. Assignment of judges to settle cases

1. Within 3 working days after the date of acceptance of a case, the court president shall assign the judge who has examined the lawsuit petition and accepted the case to settle it. In case the judge who has examined the lawsuit petition and accepted the case cannot continue settling the case or falls into any case of compulsory refusal to conduct procedures or is changed, the court president shall assign another judge to settle the case.

For a complicated case requiring a prolonged duration of settlement, the court president shall assign an alternative judge to assure uninterrupted (rial.

2. In the course of settlement of a case, if the assigned judge cannot continue with the assigned task, the court president shall assign another judge to continue the task. When the trial is underway without an alternative judge, the case shall be retried from the beginning.

Article 113. Tasks and powers of judges when preparing case files

1. To notify the acceptance of cases.

2. To request involved parties to submit documents and evidence to courts.

3. To verify and collect evidence under this Law.

Article 114. Notification of acceptance of cases

1. Within 5 working days after the date of acceptance of a case, the court shall notify in writing the acceptance of the case to the defendant, persons with interests and obligations related to the settlement of the case and the same-level procuracy.

2. A written notice of acceptance of a case must contain the following principal details:

a/ Date of its making;

b/ Name and address of the court that has accepted the case;

c/ Names and addresses of the plaintiff and the defendant;

d/ Specific matters requested by the plaintiff to be settled by the court;

e/List of documents submitted together with the lawsuit petition by the plaintiff;

f/ Time limit within which the notified person shall submit to the court his/her written opinions on the plaintiff's claims and enclosed documents and evidence (if any);

g/ Legal consequences of the notified person's failure to submit to the court his/her written opinions on the plaintiff's claims.

Article 115. Rights and obligations of notified persons

1. Within 15 days after receiving a notice, the defendant and persons with related interests and obligations shall submit to the court their written opinions on the plaintiff's claims and enclosed documents and evidence (if any).

If an extension of the time limit is needed, a notified person shall file an application for extension to the court, clearly stating the reason. If the applied extension is grounded, the court shall give a single extension of not more than 10days.

2. In case the defendant and persons with related interests and obligations have received a notice but fail to submit their written opinions within the time limit specified in Clause 1 of this Article without a plausible reason, the court shall continue settling the case under this Law.

3. The defendant and persons with related interests and obligations may request the court to let them know, read, take note of or copy the lawsuit petition and enclosed documents and evidence (if any).

4. Within 10 days after rcceiving a.notice, the procuracy shall appoint a procurator and an alternative procurator (if any) to participate in the settlement of the case and notify such to the court.

Article 116. Right of persons with related interests and obligations to make independent claims

1. In case persons with related interests and obligations do not participate in procedures on the side of the plaintiff or the defendant, they may make independent claims when the following conditions are satisfied:

a/ The settlement of the case is related to their interests and obligations;

b/ Their independent claims are related to the case being settled;

c/ Their independent claims are settled in the same case, thereby making the settlement of the case more accurate and quicker.

2. Procedures for making independent claims comply with the provisions of this Law on procedures for initiating lawsuits by plaintiffs.