Chương XII Luật tố tụng hành chính 2010: Thủ tục phúc thẩm

Chapter XII

APPELLATE PROCEDURES

Article 173. Nature of appellate trial

Appellate trial means the re-trial by the immediate superior court of a case with the first-instance court's judgment or ruling having not yet taken legal effect and being appealed or protested against.

Article 174. Persons having the right to appeal

The involved parties or their representatives have the right to appeal against judgments or decisions of the first-instance courts to suspend or terminate the settlement of cases in order to request the immediate superior courts to directly conduct re-trial according to appellate procedures.

Article 175. Appeal petition

1. An appeal petition must contain the following principal details:

a/ Date of making;

b/ Full name and address of the appellant;

c/ The appealed part of the judgment or ruling of the first-instance court, which has not yet taken legal effect;

d/ The reason(s) for appealing and the appellant's claims;

e/ Signature or fingerprint of the appellant.

2. The appeal petition shall be filed with the first-instance court which rendered the judgment or ruling which is appealed against; the appeal petition must be enclosed with additional documents and evidence (if any) to prove that the appeal is grounded and lawful.

In case the appeal petition is filed with the appellate court, the appellate court shall transfer the petition to the first-instance court for carrying out necessary procedures under Article 186 of this Law.

Article 176. Time limit for filing an appeal

1. The time limit for appealing against the first-instance court's judgment is 15 days counting from the date of judgment pronouncement by the court; for the involved parties that are absent from the court hearing, the time limit for an appeal shall be counted from the date the judgment is handed over to them or publicly posted up at the office of the commune-level People's Committee of the locality in which they reside or are based, for involved parties being agencies or organizations.

2. The time limit for appealing against the first-instance court's ruling on suspension or termination of the settlement of a case is 7 days counting from the date the person who has the right to appeal receives such decision.

3. In case the appeal petition is sent by post, the appeal date is the date postmarked on the envelope by the sending post office.

Article 177. Examination of appeal petitions

1. After receiving the appeal petitions, the first-instance courts shall examine their validity under Clause 1, Article 175 of this Law.

In case the appeal petition lacks details specified in Clause 1. Article 175 of this Law, the first-instance court shall request the appellant to modify and supplement it.

2. In case the appeal petition is filed after the time limit specified in Article 176 of this Law (below referred to as overdue appeal) for a force majeure event or an objective obstacle, the first-instance court shall request the appellant to clearly state the reason and produce documents and evidence (if any) to prove that the reason for the appeal petition being filed late is plausible.

Article 178. Overdue appeals

After receiving an overdue appeal petition, the first-instance court shall forward the petition and the appellant's explanation of the reason for late filing, documents and evidence (if any) to the appellate court.

Within 10 days after receiving the overdue appeal and enclosed documents and evidence, the appellate court shall form a panel consisting of three judges to consider the overdue appeal.

The panel may issue a decision to accept or reject the overdue appeal and clearly state the reason in the decision, which shall be sent to the late appellant, the first-instance court and the procuracy of appellant level.

If the appellate court accepts the overdue appeal, the first-instance court shall carry out procedures provided in this Law and send the case file to the appellate court.

Article 179. Notice of payment of appellate court fee advances

1. After accepting the valid appeal petition, the first-instance court shall notify the appellant thereof so that the latter pays an appellate court fee advance as required by law, unless the latter falls into cases exempt from paying or not required to pay the appellate court fee advance.

2. Within 10 days counting from the date of receiving the court's notice of payment of the appellate court fee advance, the appellant shall pay an advance and submit to the first-instance court the receipt of the advance. Past this time limit should the appellant fail to pay the appellant court fee advance, he/she shall be regarded as having waived the appeal, unless he/she has a plausible reason therefor; the court shall return the appeal petition to the involved party.

Article 180. Notice of appeal

1. When sending the case file and the appeal petition to the appellate court, the first-instance court shall notify the appeal in writing to the same-level procuracy and the involved parties related to the appeal.

2. Involved parties who are notified of the appeal may send to the appellate court documents expressing their opinions on the appealed contents. Such documents shall be included in the case files.

Article 181. Protest by procuracy

The director of the procuracy of the same level or immediate superior level may protest against the first-instance court's judgment or ruling on suspension or termination of the settlement of the case in order to request the immediate superior court to directly settle the case according to appellate procedures.

Article 182. Protest decision of procuracy

1. A procuracy's protest decision must be made in writing and contain the following principal details:

a/ Date of issue and serial number of the protest decision;

b/ Name of the procuracy issuing the protest decision;

c/ Protested parts of the first-instance court's judgment or ruling which has not yet taken legal effect;

d/ Reason(s) for the protest and the procuracy's requests;

e/ Full name of the person signing the protest decision and seal of the procuracy issuing the protest decision.

2. The protest decision must be immediately sent to the first-instance court that has rendered the protested judgment or ruling so that such court shall carry out procedures stipulated in Article 186 of this Law. Enclosed with the protest decision must be additional documents and evidence (if any) to prove that the procuracy's protest is grounded and lawful.

Article 183. Time limit for making a protest

1. The time limit for protesting against the first-instance court's judgment is 15 days for the same-level procuracy and 30 days for the immediate superior procuracy, counting from the date of judgment pronouncement.

2. The time limit for protesting against the first-instance court's ruling on suspension or termination of the settlement of the case is 7 days for the same-level procuracy and 10 days for the immediate superior procuracy, counting from the date the same-level procuracy receives such ruling.

Article 184. Notice of protest

1. The procuracy issuing a protest decision shall promptly send the protest decision to the involved parties related to the protest.

2. Persons who are notified of the protest may send to the appellate court documents expressing their views on the protested contents. Such documents shall be included in the case files.

Article 185. Consequences of appeal or protest

1. The appealed or protested parts of a first-instance court's judgment or ruling must not be executed, unless immediate execution is permitted by law.

2. A first-instance court's judgment or ruling or parts thereof which is or are not appealed or protested against will take legal effect on the date of expiration of the appeal or protest lime limit.

Article 186. Sending of case files, appeals and protests

The first-instance court shall send to the appellate court case files, appeals or protests and enclosed documents and evidence within 5 working days counting from the date on which:

1. The appellant submits the appeal petition to the first-instance court, in case the appellant is exempt from paying or is not required to pay an appellate court fee advance;

2. The appellant submits to the first-instance court the receipt of the appellate court fee advance, in case the appellant has to pay an appellate court fee advance.

3. The first-instance court receives the protest decision from a procuracy.

Article 187. Acceptance of cases for appellate trial

1. Immediately after receiving a case file, an appeal, a protest decision and enclosed documents and evidence, the appellate court shall record it in the case acceptance book.

2. The president of the court of appellate level or the President of the Appellate Court of the Supreme People's Court shall set up an appellate trial panel and assign a judge to preside over court hearings and sessions.

Article 188. Modification, supplementation and withdrawal of appeals or protests

1. Before the opening of an appellate court hearing or during an appellate court hearing, the appellant may modify or supplement his/her appeal and the procuracy that has issued the protest decision may modify or supplement its protest provided that the modification or supplementation must not go beyond the scope of the original appeal or protest, if the appeal or protest time limit has expired.

2. Before the opening of an appellate court hearing or during an appellate court hearing, the appellant may withdraw his/her appeal and the procuracy that has issued the protest decision or the immediate superior procuracy may withdraw the protest.

The appellate court shall terminate the appellate trial of the case against which the appellant has withdrawn his/her appeal or the procuracy has withdrawn its protest. The termination of the appellate trial prior to the opening of a court hearing shall be decided by the presiding judge of the court hearing or by the trial panel during a court hearing.

3. The modification, supplementation or withdrawal of an appeal or a protest before the opening of an appellate court hearing must be made in writing and sent to the appellate court. The appellate court shall notify the involved parties of such modification, supplementation or withdrawal, and notify the same-level procuracy of the modification, supplementation or withdrawal of the appeal of the involved party.

The modification, supplementation or withdrawal of an appeal or a protest during a court hearing must be recorded in the minutes of the court hearing.

Article 189. Addition of new evidence

1. Prior to an appellate court hearing or during an appellate court hearing, the appealant, the procuracy making the protest, a person with interests and obligations related to the appeal or protest, and the defense counsels of the rights and legitimate interests of involved parties may additionally provide new evidence.

2. The appellate court may itself or at the request of an involved party verify newly added evidence. It may entrust the verification under Article 86 of this Law.

Article 190. Scope of appellate trial

The appellate court shall only review parts of the first-instance judgment or ruling which is appealed or protested against or related to the appealed or protested contents.

Article 191. Time limit for appellate trial preparation

1. Within 60 days after the date of accepting a case, the judge assigned to preside over the court hearing shall issue one of the following decisions:

a/ To suspend the appellate trial of the case;

b/To terminate the appellate trial of the case;

c/ To bring the case to appellate trial.

2. For complicated cases or due to an objective obstacle, the president of the appellate court may decide to prolong the trial preparation time limit specified in Clause 1 of this Article, but for not more than 30 days.

3. Within 30 days after the date of issuance of the decision to bring the case to trial, the court shall open an appellate court hearing; in case of a plausible reason, this time limit is 60 days.

4. The decision to bring the case to appellate trial must be forwarded to the same-level procuracy and persons related to the appeal or protest.

Article 192. Composition of appellate trial panel

An appellate trial panel consists of three judges.

Article 193. Presence of appellate trial panel members and court clerks

1. A court hearing may be conducted only when it is attended by all the members of the trial panel and the court clerk.

2. In case the judge is absent or cannot continue participating in the trial but there is an alternate judge who attends the court hearing from the beginning, this person may replace the absent judge to participate in the trial of the case.

3. If there is no alternate judge to replace a member of the trial panel under Clause 2 of this Article, the court hearing must be postponed.

4. In case the court clerk is absent or cannot continue participating in the trial without a replacement, the court hearing must be postponed.

Article 194. Presence of procurator

1. The procurator who is assigned by the director of the same-level procuracy has the duty to participate in the court hearing. If he/she is absent, the trial panel shall decide to postpone the court hearing and inform the director of the same-level procuracy, except the case stated in Clause 2 of this Article.

2. In case the procurator is absent or cannot continue participating in the trial but there is an alternate procurator who attends the court hearing from the beginning, this person may replace the absent judge to participate in the trial of the case.

Article 195. Presence of involved parties, defense counsels of the rights and legitimate interests of involved parties, experts, interpreters and witnesses

1. Upon the first valid summon of the court, the appellant, persons with interests and obligations related to the appeal or protest and the defense counsels of their rights and legitimate interests must be present; in case any of them is absent, the trial panel shall postpone the court hearing.

The court shall inform the postponement of the court hearing to the appellant, persons with interests and obligations related to the appeal or protest and the defense counsels of their rights and legitimate interests.

2. Upon the valid second summon of the court, the appellant, persons with interests and obligations related to the appeal or protest and the defense counsels of their rights and legitimate interests must be present; in case any of them is absent for a non-force majeure event, the court shall handle as follows:

a/ If the appellant is absent without a representative participating in the court hearing, he/she shall be regarded as having waived his/ her appeal and the court shall issue a decision to terminate the appellate trial of the first-instance court's judgment or ruling or parts thereof which is/are appealed against by the absent appellant;

b/ If the persons with interests and obligations related to the appeal or protest and the defense counsels of their rights and legitimate interests are absent, the court shall still conduct the trial in their absence.

3. The. presence of witnesses, experts and interpreters in an appellate court hearing complies with Articles 133, 134 and 135 of this Law.

4. In case a procedure participant makes a written request to the court to conduct the trial in his/her absence, the court shall conduct the appellate court hearing in his/her absence.

Article 196. Cases in which the appellate trial panel is not required to open a hearing or summon involved parties

1. The appellate trial panel is not required to open a hearing in the following cases:

a/ Examining an overdue appeal or protest;

b/ Examining an appeal or a protest about court fee;

c/ Examining an appeal or a protest against a ruling of the first-instance court.

2. In the cases stated in Clause 1 of this Article, the trial panel is not required to summon involved parties, unless it is necessary to hear their opinions.

Article 197. Suspension of appellate trial

The appellate court shall issue a decision to suspend the appellate trial of a case; the consequences of suspension of the appellate trial of a case and the resumption of appellate (rial comply with Articles 118 and 119 of this Law.

Article 198. Termination of appellate trial

1. The appellate court shall issue a decision to terminate the appellate trial of a case in the following cases:

a/ Cases specified at Point a, Clause 1, Article 120 of this Law;

b/ The appellant withdraws the whole of his/ her appeal or the procuracy withdraws the whole of its protest;

c/ The appellant is absent inspire of the valid second summon;

d/ Other cases provided by law.

2. In case the appellate court issues a decision to terminate the appellate trial of a case under Point b, Clause 1 of this Article, the first-instance judgment or ruling will take legal effect on the date of issuance of such decision.

Article 199. Decision to apply, change or cancel provisional urgent measure

During the settlement of a case, the appellate court may decide to apply, change or cancel provisional urgent measures provided in Chapter V of this Law.

Article 200. Transfer of case files to procuracy for study

After accepting a case for appellate trial, the appellate court shall transfer the case file to the same-level procuracy for study. Within 15 days after receiving the case file, the procuracy shall return it to the court.

Article 201. Postponement of appellate court hearing

1. Cases in which an appeal court hearing must be postponed.

a/ Cases specified in Clause 2. Article 135; Clauses 5 and 4, Article 193; Clause 1, Article 194; and Clause 1, Article 195, of this Law;

b/ A member of the trial panel, the procurator, the court clerk or the interpreter is changed without an immediate replacement;

c/ The expert is changed;

d/ Additional documents and evidence need to be verified and collected but this cannot be done right at the court hearing.

2. Cases in which the appellate court hearing must be postponed are specified in Clause 1, Article 133 and Clause 2, Article 134 of this Law.

3. The duration of postponement and the decision to postpone an appeal court hearing comply with the provisions of Article 137 of this Law.

Article 202. Appellate trial procedures

1. Preparation for the opening of an appellate court hearing, procedures for commencing the hearing, procedures for questioning, disclosure of documents, examination of material exhibits at the hearing, argument at the hearing, judgment deliberation and pronouncement, modification and supplementation of the appellate judgment shall be carried out like first-instance trial procedures.

2. After concluding the procedures for commencing the appellate court hearing, a member of the appellate trial panel shall announce the content of the case, the first-instance judgment's rulings and the content of the appeal or protest.

3. The questioning of the involved parties .and procurator about the modification, supplementation or withdrawal of the appeal or protest at the hearing shall be carried out by the presiding judge of the hearing as follows: ask the plaintiff whether he/she withdraws his/her lawsuit petition; ask the appellant or procurator whether he/she modifies, supplements or withdraws his/her appeal or protest.

4. If the procuracy makes a protest, the procurator shall present the procuracy's protest views on the protested first-instance judgment's rulings.

Article 203. Plaintiffs withdraw lawsuit petitions before the opening of or during appellant court hearings

1. If the plaintiff withdraws his/her lawsuit petition before the opening of or during the appellate court hearing, the appellate trial panel shall ask the defendant whether he/she agrees or disagrees therewith and may handle on a case-by-case basis as follows:

a/ It shall disapprove the withdrawal of the lawsuit petition by the plaintiff if the defendant disagrees,

b/ It shall approve the withdrawal of the lawsuit petition by the plaintiff if the defendant agrees. The appellate trial panel shall issue a decision to cancel the first-instance judgment and terminate the settlement of the case. In this case, the involved parties shall still bear the first-instance court fee as decided by the first-instance court and half of the appellate court fee as provided by law.

2. In case the appellate trial panel issues a decision to terminate the settlement of the case, the plaintiff is entitled to re-institute the case according to the procedures provided by this Law, if the statute of limitations for instituting a lawsuit has not yet expired.

Article 204. Hearing of presentations of involved parties, procurators at appellate court hearings .

1. In case an involved party still retains his/ her appeal or the procuracy maintains its protest, the appellate trial panel shall commence the trial by listening to the presentations of the involved party or procurator in the following order:

a/ The defense counsel of the rights and legitimate interests of the appellant presents the content of the appeal and grounds therefore. The appellant may give additional opinions.

In case all the involved parties appeal, the presentations shall be made in the following order: the defense counsel of the rights and legitimate interests of the appellant being the plaintiff and the plaintiff; the defense counsel of the rights and legitimate interests of the appellant being the defendant and the defendant; the defense counsel of the rights and legitimate interests of the person with related rights and obligations and the person with related rights and obligations.

In case only the procuracy protests, the procurator shall presents the content of the protest and grounds therefore; in case there are both appeal and protest, the involved parties shall present the contents of their appeals and the grounds therefore first, then the procurator shall present the content of the protest and grounds therefore;

b/ The defense counsel of the rights and legitimate interests of other involved parties related to the appeal or protest present opinions on the content of the appeal or protest. These parties may give additional opinions.

2. In case the involved parties have no defense counsel, they shall themselves present their opinions on the content of the appeal or protest and their proposals.

3. After the procedure participants present their opinions and replies, the procurator shall present the procuracy's opinions on the law observance in the process of settling the administrative case at the appellate stage.

Article 205. Jurisdiction of appellate trial panel

1. To reject the appeal or protest and uphold the first-instance judgment's rulings;

2. To modify part or the whole of the first-instance judgment if the first-in stance court made an unlawful decision in the following cases:

a/ The proving and collection of evidence was adequately carried out in accordance with the provisions of Chapter VI of this Law;

b/ The proving and collection of evidence was not adequately carried out at the first-instance level but evidence has been sufficiently added at the appellate court hearing.

3. To cancel the first-instance judgment and return the case file to the first-instance court for retrial in case there is a serious violation of procedures or new important evidence which the appellant court cannot supplement.

4. To cancel the first-in stance judgment and terminate the settlement of the case if any of the cases specified in Clause 1, Article 120 of this Law arises in the process of first-instance trial.

5. To terminate the settlement of the case according to appellate procedures if the appellate trial must be conducted in the presence of the appellant but the appellant is absent though having been validly summoned twice. In this case the first-instance judgment will take legal effect.

Article 206. Appellate judgment

1. The appellate trial panel shall render an appellate judgment in the name of the Socialist Republic of Vietnam.

2. An appellate judgment contains an introductory part, a part on the case content and reasoning of the court and a part on the ruling.

3. In the introductory part must be stated the name of the appellate court; the serial number and date of acceptance of the case; the serial number of the judgment and the date of judgment pronouncement; full names of the members of the trial panel, court clerk and procurator; full names and addresses of the plaintiff, defendant and persons with related rights and obligations; representatives or defense counsels of their rights and legitimate interests; the appellant or protesting procuracy; and other procedure participants; serial number and date of the decision to bring the case to trial; public or behind-closed-doors trial; and time and venue of trial.

4. In the part on the case content, the appeal or protest and reasoning of the court must be stated the summarized content of the case and ruling of the first-instance court; content of the appeal or protest; reasoning of the appellate trial panel; specific points, clauses and articles of the legal normative documents on which the appellate trial panel has based to settle the case.

In the part on the reasoning of the appellate trial panel must be presented an analysis of the grounds for accepting or rejecting the appeal or protest.

5. In the ruling part must be clearly stated the appellate trial panel's decisions on each specific matter to be settled in the case due to the filing of the appeal or protest, and on the payment of the first-instance court fee and appellate court fee.

6. The appellate judgment takes legal effect on the date it is pronounced.

Article 207. Appellate procedures for rulings of first-instance courts which are appealed or protested against

1. Within 15 days after receiving an appeal or a protest, the appellate court shall hold a session and issue a decision on the settlement of the appeal or protest.

2. A member of the appellate trial panel who has examined the appealed or protested ruling shall briefly present the content of the appealed or protested first-instance ruling, content of the appeal or protest and enclosed documents and evidence (if any).

3. The procurator of the same-level procuracy shall participate in the appellate session and present opinions on the settlement of the appeal or protest before the appellate trial panel makes decision.

4. When examining the first-instance court's ruling which is appealed or protested against, the appellate trial panel has the power to:

a/ Uphold the ruling;

b/ Amend the ruling;

c/ Cancel the ruling and return the case file to the first-instance court for continued settlement of the case.

5. The appellate decision takes legal effect on the date it is issued.

Article 208. Sending of appellate judgments and rulings

Within 30 days after the dale of issuing an appellate judgment or ruling, the appellate court shall send it to the involved parties, the court and procuracy which have conducted the first-instance trial, the same-level procuracy, the competent civil judgment enforcement agency and the immediate superior agency of the defendant.