Chương X Luật tố tụng hành chính 2010: Phiên toà sơ thẩm

Chapter X

FIRST-INSTANCE COURT HEARINGS

Article 125. General requirements on first-instance court hearings

A first-in stance court hearing shall be conducted at the time and in the place indicated in the decision to bring a case to trial or in the notice of re-opening of the court hearing in case of postponement of the court hearing.

Article 126. Direct, oral and continuous trial

1. The trial panel shall directly ascertain circumstances of the case by questioning and listening to presentations of the plaintiff, the defendant, persons with interests and obligations related to the case, representatives, defense counsels-of the rights and legitimate interests of involved parties and other procedure participants; examine and verify collected documents and evidence; listen to opinions of the procuracy presented by a procurator. A judgment shall be based only on questioning, argument results and evidence which have been examined and verified at the court hearing.

2. The trial shall be conducted orally and proceed uninterruptedly, excluding breaks. Members of the trial panel shall try the case from the beginning to the end of the court hearing.

In special cases, the trial may be suspended for not more than 5 days. Upon the expiration of the suspension duration, the trial shall resume.

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

Article 127. Internal rules of court hearings

1. People aged under 16 may not enter the court room, unless they are summoned by the court to attend the court hearing.

All people present in the courtroom shall rise as the trial panel enters the courtroom, respect the trial panel, keep order and obey instructions of the presiding judge of the court hearing.

Only persons who are permitted by the trial panel may raise or answer questions or give statements. Persons shall stand while raising or answering questions or giving statements, unless they are permitted by the presiding judge of the court hearing to stay seated for poor health.

2. The Supreme People's Court shall base itself on the provisions of Clause 1 of this Article and other provisions of law to issue internal rules of court hearings.

Article 128. Composition of first-instance trial panels

1. A first-instance trial panel is composed of a judge and two people's jurors. In special cases, a first-instance trial panel may be composed of two judges and three people's jurors.

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

Article 129. Presence of members of trial panels and court clerks

1. A court hearing can be conducted only when all members of the trial panel and the court clerk are present.

2. In case a judge or people's juror is absent or unable to continue participating in the trial of the case but there is an alternative judge or people's juror attending the court hearing from the beginning, the latter may replace the absent member of the trial panel in participating in the trial of the case.

3. In case there is no alternative judge or people's juror to replace the absent member of the trial panel under Clause 2 of this Article, the court hearing shall be postponed.

4. In case the court clerk is absent or unable to continue participating in the court hearing and there is no replacement, the court hearing shall be postponed.

Article 130. Presence of procurators

1. Procurators who are assigned by director of same-level procuracies shall participate in court hearings. If they are absent, trial panels shall decide to postpone court hearings and notify such to director of same-level procuracies, except the case specified in Clause 2 of this Article.

2. In case a procurator is absent or unable to continue participating in a court hearing but there is an alternative procurator attending the court hearing from the beginning, the latter may replace the absent procurator in participating in the trial of the case.

Article 131. Presence of involved parties, their representatives and defense counsels of their rights and legitimate interests

1. When being duly summoned by the court for the first time, involved parties, their representatives and defense counsels of their rights and legitimate interests must be present. If any of these persons is absent, the trial panel shall postpone the court hearing, unless the absent person files a written request for trial to be conducted in his/her absence.

The court shall notify involved parties, their representatives and defense counsels of their rights and legitimate interests of the postponement of the court hearing.

2. When being duly summoned by courts for the second time, involved parties, their representatives and defense counsels of their rights and legitimate interests must be present at the court hearing. If they are absent for non-force majeure events, they shall be handled as follows;

a/ Plaintiffs or at-law representatives who have no representatives to participate in court hearings shall be regarded as having waived their lawsuits and courts shall issue decisions on termination of settlement of cases withregard to their lawsuit claims, unless they request in writing trial to be conducted in their absence. Plaintiffs may institute lawsuits again, provided that the statute of limitations for lawsuit institution has not yet expired;

b/ For defendants or persons with related interests and obligations who make no independent claims and have no representatives to participate in court hearings, courts shall still conduct trial in their absence;

c/ Persons with related interests and obligations who make no independent claims and have no representatives to participate in court hearings shall be regarded as having waived their independent claims and courts shall issue decisions on termination of settlement of cases with regard to their independent claims, unless they request in writing trial to be conducted in their absence. Persons with related interests and obligations who make independent claims may institute lawsuits again with regard to their claims, provided that the statute of limitations for lawsuit institution has not yet expired;

d/ For absent defense counsels of the rights and legitimate interests of involved parties, courts shall still conduct trial in their absence.

Article 132. Trial in absence of involved parties from court hearings

The court shall still conduct trial of a case in the following cases:

1. The plaintiff, the defendant, persons with related interests and obligations and their representatives that are absent from the court hearing request in writing the court to conduct trial in their absence;

2. The plaintiff, the defendant or persons with related interests and obligations that are absent from the court hearing have their representatives participating in the court hearing;

3. The cases specified at Points b and d, Clause 2, Article 131 of this Law.

Article 133. Presence of witnesses

1. Witnesses are obliged to participate in court hearings when summoned by courts to clarify circumstances of cases. In case witnesses are absent but have earlier given their testimonies in person or sent their testimonies to courts, presiding judges of court hearings shall disclose these testimonies.

2. In case witnesses are absent, the trial panel shall decide to postpone the court hearing or to continue with the trial. In case witnesses arc absent from the court hearing without any plausible reasons and their absence impedes the trial, they may be escorted to the court hearing under decisions of the trial panel.

Article 134. Presence of experts

1. Experts are obliged to participate in court hearings when summoned by courts to clarify matters related to the expert examination and expert conclusions.

2. In case experts are absent, the trial panel shall decide to postpone the court hearing or to continue with the trial.

Article 135. Presence of interpreters

1. Interpreters are obliged to participate in court hearings when summoned by courts.

2. In case interpreters are absent without any replacements, the trial panel shall decide to postpone the court hearing.

Article 136. Postponement of court hearings

1. Cases in which a court hearing shall be postponed:

a/ The cases specified in Clauses 3 and 4, Article 129; Clause 1, Article 130; Clause 1, Article 131; and Clause 2, Article 135 of this Law;

b/ A trial panel member, procurator, court clerk or interpreter is changed without any replacement;

c/ An expert is changed;

d/ It is necessary to verify or collect additional documents and evidence but the verification or collection cannot be conducted right at the court hearing.

2. Cases of postponement of court hearings specified in Clauses 2, Article 133 and Clause 2, Article 134 of this Law.

Article 137. Duration of and decisions on postponement of court hearings, and competence to postpone court hearings

1. The duration of postponement of a first-instance court hearing is 30 days after the date of issuance of the postponement decision.

2. A decision on postponement of a court hearing must contain the following principal contents:

a/ Date of issuance;

b/ Name of the court and full names of procedure-conducting persons;

c/ Case to be tried;

d/ Reason(s) for postponement;

e/ Time and venue for resumption of the court hearing.

3. The court hearing postponement decision shall be signed by the presiding judge of the court nearing on behalf of the trial panel. In case the presiding judge of the court hearing is absent, the court president shall issue a court hearing postponement decision. The court hearing postponement decision shall be immediately notified to procedure participants. For absent persons, the court shall immediately send the decision to them and concurrently to the same-level procuracy,

4. After postponing a court hearing, if the court cannot resume it at the time and in the place indicated in the court hearing postponement decision, the court shall immediately notify the same-level procuracy and procedure participants of the time and venue for the court hearing.

Article 138. Procedures for rendering court judgments and rulings at court hearings

1. A judgment shall be discussed and passed by the trial panel in the deliberation room.

2. A decision to change a procedure-conducting person, an expert or interpreter, to transfer the case, to suspend or terminate the settlement of the case, or to postpone the court hearing shall be discussed and passed in the deliberation room and made in writing.

3. A decision on another matter shall be discussed and passed in the courtroom, must not be made in writing but shall be recorded in the minutes of the court hearing.

Article 139. Suspension or termination of settlement of cases at court hearings

1. At a court hearing, if any of the cases specified in Clause 1. Article 118 of this Law occurs, the trial panel shall issue a decision on suspension of the settlement of the case.

2. At a court hearing, if any of the cases specified in Clause 1, Article 120 of this Law occurs, the trial panel shall issue a decision on termination of the settlement of the case.

3. In case an involved party produces a new administrative decision which is related to the decision over which the lawsuit is instituted and does not fall under the jurisdiction of the court currently conducting the first-instance trial of the case, the trial panel shall terminate the trial and transfer the case file to a competent court.

Article 140. Minutes of court hearings

1. The minutes of a court hearing must folly indicate the following contents:

a/ The contents specified in Clause 1, Article 123 of this Law;

b/ All proceedings at the court hearing from the beginning to the end;

c/ Questions, answers and statements at the court hearing;

d/ Other contents which must be recorded in the minutes under this Law.

2. In addition to recording the minutes, the court may audio-record and video-record the proceedings at the court hearing.

3. At the end of the court hearing, the trial panel shall examine the minutes, and the presiding judge of the court hearing and the court clerk shall sign it.

4. Procurators and procedure participants may have a look at the minutes of the court hearing and request the recording of modifications and supplements in the minutes and sign it for certification.

Article 141. Preparations for opening of court hearings

Before opening a court hearing, the court clerk shall perform the following jobs:

1. Announcing internal rules of the court hearing;

2. Checking and identifying the presence of court hearing participants who are summoned by the court. If any person is absent, the reason for the absence shall be clarified;

3. Maintaining order in the courtroom;

4. Ordering all people present in the court room to rise when the trial panel enters the courtroom.

Article 142. Opening of court hearings

1. The presiding judge shall open the court hearing and read out the decision to bring the case to trial.

2. The court clerk shall report to the trial panel on the presence or absence of the persons who have been summoned by the court and reason(s) for their absence.

3. The presiding judge shall re-check the presence of the court hearing participants who have been summoned by the court and check the identity cards of involved parties.

4. The presiding judge shall explain the rights and obligations of involved parties and other procedure participants.

5. The presiding judge shall introduce procedure-conducting persons, experts and interpreters.

6. The presiding judge shall ask persons who have the right to request change oi produce-conducting persons, experts and interpreters to see if they request any change and reasons for their requests.

Article 143. Response to requests for change of procedure-conducting persons, experts and interpreters

In case there is a request for change of a procedure-conducting person, an expert or an interpreter at the court hearing, the trial panel shall consider and decide to accept or reject the request under this Law. In case of rejection, the reason therefore shall be clearly stated and recorded in the minutes of the court hearing.

Article 144. Assurance of objectivity of witnesses

1. Before witnesses are questioned about matters which they know and are related to the settlement of the case, the presiding judge of the court hearing may decide to take necessary measures so that witnesses can neither hear each other's testimonies nor communicate with relevant persons.

2. If the testimonies of involved parties and witnesses are interrelated, the presiding judge of the court hearing may decide to separate involved parties from witnesses before the latter is questioned.

Article 145. Questioning of involved parties about change, addition or withdrawal of their claims

1. The presiding judge of the court hearing shall question the plaintiff about change, addition or withdrawal of part or whole of their lawsuit claims.

2. The presiding judge of the court hearing shall question persons with related interests and obligations that have made independent claims about change, addition or withdrawal of part or whole of their independent claims.

Article 146. Consideration of change, addition or withdrawal of claims

1. The trial panel shall accept the change or addition of involved parties' claims provided that the change or addition does not go beyond the scope of their lawsuit claim or initial dependent claims.

2. In case involved parties voluntarily withdraw part or whole of their claims, the trial panel shall accept the request and terminate the trial with regard to the withdrawn part of claims or whole of claims.

Article 147. Change of procedural status

In case the plaintiff withdraws the whole of his/her lawsuit petition but persons with related interests and obligations still maintain their independent claims, the latter shall become the plaintiff.

Article 148. Questing at court hearings

1. The trial panel shall identify all circumstances of the case by listening to opinions of the plaintiff, the defendant, persons with related interests and obligations or representatives of involved parties, defense counsels of the rights and legitimate interests of involved parties, witnesses and experts, and comparing these opinions with collected documents and evidence.

2. After listening to the involved parties' statements, the questioning of each person about each specific matter shall be conducted in the order that the presiding judge of the court hearing shall raise questions first, followed by people's jurors, defense counsels of rights and legitimate interests of involved parties, involved parties, other procedure participants and procurators.

Article 149. Questioning of plaintiffs

1. In case there arc more than one plaintiff, they shall be questioned separately one by one.

2. The plaintiff shall be questioned only about matters presented by himself/herself and the defense counsel of his/her rights and legitimate interests which remain unclear, inconsistent or contradictory to their previous testimonies, or contradictory to the statements of the defendant, persons with related interests and obligations and defense counsels of the rights and legitimate interests of these persons.

3. The plaintiff may himself/herself give answers or the defense counsel of his/her rights and legitimate interests may give answers on his/her behalf, then he/she shall give additional answers.

Article 150. Questioning of defendants

1. In case there are more than one defendant, they shall be questioned separately one by one.

2. The defendant shall be questioned only about matters presented by himself/herself and the defense counsel of his/her rights and legitimate interests which remain- unclear, inconsistent or contradictory to their previous testimonies, or contradictory to the statements of the plaintiff, persons with related interests and obligations and defense counsels of the rights and legitimate interests of these persons.

3. The defendant may himself/herself give answers or the defense counsel of his/her rights and legitimate interests may give answers on his/her behalf, then he/she shall give additional answers.

Article 151. Questioning of persons with related interests and obligations

1. In case there are more than one person with related interests and obligations, they shall be questioned separately one by one.

2. Persons with related interests and obligations shall be questioned only about matters presented by themselves, defense counsels of their rights and legitimate interests which remain unclear, inconsistent or contradictory to their previous testimonies, or contradictory to statements of the plaintiff, defendants and defense counsels of the rights and legitimate interests of these persons.

3. Persons with related interests and obligations may themselves give answers or defense counsels of their rights and legitimate interests may give answers on their behalf, then they shall give additional answers.

Article 152. Questioning of witnesses

1. In case there are more than one witness, they shall be questioned separately one by one.

2. Before questioning witnesses, the presiding judge of the court hearing shall ask clearly about the relationships between them and involved parties in the case. If witnesses are minors, the presiding judge of the court hearing may ask for help of their parents, guardians or teachers in questioning.

3. The presiding judge of the court hearing shall request witnesses to clearly state circumstances of the case which they know. After witnesses give their statements, they may only be further questioned about points which are unclear, incomplete or inconsistent in their statements or which conflict with their previous testimonies, the statements of involved parties or of defense counsels of the rights and legitimate interests of involved parties.

4. After making their statements, witnesses shall stay in the court room so that they may be further questioned.

5. When necessary to protect witnesses and their relatives, the trial panel shall decide not to disclose information on their personal identities and keep them from being seen by court hearing participants.

Article 153. Disclosure of documents of cases

1. The trial panel shall disclose documents of a case in the following cases:

a/ Procedure participants are absent from the court hearing but have given their testimonies at the stage of trial preparation;

b/ Testimonies given by procedure participants at the court hearing are contradictory to their previous testimonies;

c/ When the trial panel finds it necessary or when the procurator or procedure participants so request.

2. In special cases in which it is necessary to keep state secrets, to preserve fine national customs and practices, to keep professional secrets, business secrets or personal privacy at the request of involved parties, the trial panel shall not disclose documents included in the case file.

Article 154. Listening to audio tapes and disks and watching video tapes and disks

At the request of procurators or procedure participants or when finding it necessary, the trial panel may play audio or video tapes and disks to be listened to or watched at the court hearing, except the cases specified in Clause 2, Article 153 of this Law.

Article 155. Examination of material exhibits

1. Material exhibits, photos or written certifications of exhibits to be presented for examination at the court hearing.

2. When necessary, the trial panel may go together with involved parties for on-site examination of material exhibits which cannot be brought to the court hearing.

Article 156. Questioning of experts

1. The presiding judge of the court hearing shall request experts to present their conclusions on matters they are assigned to examine. During presentation, experts may give additional explanations on their conclusions and grounds for making these conclusions.

2. Procurators and procedure participants present at the court hearing may give comments on expert conclusions or ask about matters which remain unclear or contradictory in expert conclusions or contradictory to other circumstances of the case.

3. If experts are absent from the court hearing, the presiding judge of the court hearing shall disclose expert conclusions.

4. If any procedure participant disagrees with expert conclusions disclosed at the court hearing and requests an additional examination or re-examination, if finding the additional examination or re-examination is necessary for the settlement of the case, the trial panel shall decide on additional examination or re-examination. In this case, the trial panel shall decide to postpone the court hearing.

Article 157. Conclusion of questioning at court hearings

When seeing that circumstances of the case have been fully examined, the presiding judge of the court hearing shall ask the procurator, involved parties, defense counsels of the rights and legitimate interests of involved parties and other procedure participants whether they have any further questions. In case someone has a question and he/she finds such question grounded, the presiding judge of the court hearing shall decide to continue the questioning.

Article 158. Order for making statements during argument

1. After the questioning, the trial panel shall move on to the stage of argument at the court hearing. The order for making statements during argument is as follows:

a/ The defense counsel of the rights and legitimate interests of the plaintiff makes statements. The plaintiff may give additional opinions;

b/ The defense counsel of the rights and legitimate interests of the defendant makes statements. The defendant may give additional opinions;

c/ Defense counsels of the rights and legitimate interests of persons with related interests and obligations make statements. Persons with related interests and obligations may give additional opinions.

2. In case involved parties and defense counsels of the rights and legitimate interests of involved parties are absent from the court hearing but have sent documents on protection of the rights and legitimate interests of involved parties, the trial panel shall disclose these documents at the court hearing.

3. In case involved parties have no defense counsels of their rights and legitimate interests, they shall themselves make statements during argument.

Article 159. Making of statements during argument and replies

When making statements on the assessment of evidence or expressing their points of view on the settlement of the case, persons participating in the argument shall base themselves on documents and evidence already collected and examined or verified at the court hearing as well as results of the questioning at the court hearing. They may reply to opinions of others. The presiding judge of the court hearing may not limit the argument time and shall create conditions for argument participants to fully express their opinions but may interrupt and rule out opinions that arc not relevant to the case.

Article 160. Statements of procurators

1. After procedure participants make statements during argument and replies, procurators shall make statements on compliance with the procedure law throughout the course of settlement of the case by judges and the trial panel, law observance by administrative procedure participants from the acceptance of the case to the time of deliberation by the trial panel.

2. The Supreme People's Procuracy and the Supreme People's Court shall guide the implementation of this Article.

Article 161. Deliberation

1. After the argument, the trial panel enters the deliberation room to deliberate the case.

2. Only members of the trial panel can participate in the deliberation. During the deliberation, members of the trial panel shall decide on all matters of the case by majority voting on matter by matter. People's jurors shall vote first and judges shall vote last. If the trial panel is composed of 5 members, the presiding judge of the court hearing shall vote last. Members of minority opinion may present their opinions in writing which shall be recorded in the case file.

3. During the deliberation, the trial panel may base themselves only on documents and evidence already examined and considered at the court hearing, results of the questioning at the court hearing and shall fully consider opinions of procedure participants and procurators.

4. The deliberation shall be recorded in a minutes with all opinions discussed and decisions of the trial panel. The deliberation minutes shall be signed by members of the trial panel in the deliberation room before the pronouncement of judgment(s).

5. For a case involving many complicated circumstances and the deliberation requires a longer time, the trial panel may decide on the deliberation time limit which must not exceed 5 working days after the argument at the court hearing.

The trial panel shall inform all persons present at the court hearing and procedure participants absent from the court hearing of the time, date and place of judgment pronouncement. If the trial panel has done so but some procedure participants are still absent, it shall still conduct the judgment pronouncement under Article 165 of this Law.

Article 162. Resumption of questioning and argument

Through argument or deliberation, if finding that certain circumstances of the case have not been examined, the questioning remains inadequate or more evidence should be examined, the trial panel shall decide to resume the questioning and argument.

Article 163. Jurisdiction of trial panels

1. Trial panels shall examine the legality of administrative decisions, administrative acts, disciplinary decisions on dismissal, decisions on settlement of complaints on decisions on handling of competition cases, voter lists over which lawsuits are instituted, and decisions on settlement of relevant complaints.

2. Trial panels may decide to:

a/ Reject lawsuit claims which are not legally grounded;

b/ Accept part or whole of lawsuit petitions, pronounce cancellation of part or whole of unlawful administrative decisions; order state agencies or competent persons in these state agencies to perform tasks or public duties under law;

c/ Accept part or whole of lawsuit petitions, declare some or all administrative acts unlawful; order state agencies or competent persons in these state agencies to terminate their unlawful acts;

d/ Accept lawsuit petitions, pronounce cancellation of unlawful disciplinary decisions on dismissal; order heads of agencies or organizations to perform tasks or public duties under law;

e/ Accept part or whole of lawsuit petitions, pronounce cancellation of part or whole of unlawful decisions on settlement of complaints about decisions on handling of competition cases; order competent agencies or persons that have issued decisions on settlement of complaints about decisions on handling of competition cases to resettle these cases under the Law on Competition;

f/ Accept part or whole of lawsuit petitions; order agencies making voter lists to modify or supplement these lists under law;

g/ Order agencies or organizations to pay compensations for damage, restore the rights and legitimate interests of individuals, agencies and organizations which are infringed upon by unlawful administrative decisions, administrative acts, disciplinary decisions on dismissal or decisions on settlement of complaints about decisions on handling of competition cases;

h/ Recommend competent state agencies or their heads to examine responsibilities of state agencies or competent persons of these agencies.

Article 164. First-instance judgments

1. Trial panels shall render first-instance judgments in the name of the Socialist Republic of Vietnam.

2. A judgment consists of an introductory part, a part on the contents of the case and reasoning of the court, and a part on the ruling.

3. The introductory part of a judgment must indicate the name of the first-in stance court; the serial number and date of the case acceptance; the serial number of the judgment and the date of judgment pronouncement; full names of members of the trial panel, court clerk and procurator; names and addresses of the plaintiff, defendant, persons with related interests and obligations, representatives, defense counsels of the rights and legitimate interests of involved parties and other procedure participants; subject matter of the lawsuit; serial number and date of the decision to bring to case to public or behind-closed-door trial; time and place of trial.

4. The part on the contents of the case and reasoning of the court must state the lawsuit petition of the plaintiff; requests of the defendant; requests and independent claims of persons with related interests and obligations; reasoning of the court; points, clauses and articles of legal documents referred to by the court as grounds for settling the case.

In its reasoning, the court must analyze grounds for acceptance or rejection of the claims and requests of involved parties and defense counsels of the rights and legitimate interests of involved parties.

5. The part on the ruling must clearly slate the rulings of the court on each specific matter which needs to be settled in the case, court fee, and the right to appeal against the judgment. If there is a decision which must be executed without delay, such decision must be clearly stated.

Article 165. Pronouncement of judgments

Upon pronouncement of a judgment, all people present in the court room shall rise, except those permitted by the presiding judge of the court hearing to stay seated. The presiding judge of the court hearing or another member of the trial panel shall read out the judgment. After the reading of the judgment, he/she may-give further explanations about the judgment execution and the right to appeal.

In case an involved party does not know Vietnamese, the interpreter shall, after the judgment pronouncement, interpret the full text of the judgment into a language he/she knows.

Article 166. Provision or sending of judgment extracts and judgments

1. Within 3 working days after the end of a court hearing, involved parties shall be provided with judgment extracts by the court.

2. Within 7 working days after the date of judgment pronouncement, the court shall provide or send the judgment(s) to involved parties-and the same-level procuracy.

3. Thirty days after the expiration of the time limit for filing appeals or protests, if no appeal or protest is filed, the court shall provide or send the legally effective judgment(s) to involved parties, the same-level procuracy, the same-level civil judgment enforcement agency and the immediate superior agency of the defendant.

Article 167. Correction or supplementation of court judgments and rulings

1. Court judgments and rulings, once pronounced, must not be corrected or supplemented, except in case obvious spelling errors or erroneous data due to mistakes or calculation errors are detected. Documents on amendments or supplements must be immediately sent by the court to involved parties and the same-level procuracy. For legally effective judgments or rulings, documents on amendments or supplements shall also be send to the same-level civil judgment enforcement agency and the immediate superior agency of the defendant.

2. The correction or supplementation of judgments and rulings specified in Clause 1 of this Article shall be made by the presiding judge of the court hearing or session together with members of the trial panel trying such case. In case a member of the trial panel cannot make correction or supplementation, the correction or supplementation shall be carried out by the court president.