Chương XIII Luật tố tụng hành chính 2010: Thủ tục giám đốc thẩm

Chapter XIII

CASSATION PROCEDURES

Article 209. Nature of cassation

Cassation means the review of a legally effective court judgment or ruling which is protested against as a serious law violation in the settlement of (he case is detected.

Article 210. Grounds for protest according to cassation procedures

A legally effective court judgment or ruling may be protested against according to cassation procedures when there is any of the following grounds:

1. There is a serious violation in proceedings;

2. The judgment's ruling or the ruling is incompatible with the objective details of the case;

3. There is a serious error in the application of law.

Article 211. Detection of legally effective judgments or rulings which need to be reviewed according to cassation procedures

1. Within 1 year from the date a court judgment or ruling takes legal effect, if detecting a law violation in such judgment or ruling, the involved parties may make a written request to a person competent to protest as defined in Article 212 of this Law to consider making a protest according to cassation procedures.

2. In case a court, a procuracy, an individual or another agency or organization detects a law violation in a legally effective court judgment or ruling, it/he/she shall notify such violation in writing to a person competent to protest as defined in Article 212 of this Law.

3. The Supreme People's Court and the Supreme People's Procuracy shall guide procedures for receiving and processing written requests for protest according to cassation procedures.

Article 212. Persons with the right to protest according to cassation procedures

1. The President of the Supreme People's Court and the Director of the Supreme People's Procuracy have the right to protest according to cassation procedures against legally effective judgments or rulings of the courts of all levels, except decisions of the Judges' Council of the Supreme People's Court.

2. The presidents of provincial-level courts and the directors of provincial-level procuracies have the right to protest according to cassation procedures against legally effective judgments or rulings of district-level courts.

Article 213. Postponement or suspension of execution of legally effective judgments or rulings.

1. Persons who have the right to protest against legally effective court judgments or rulings may postpone the execution of judgments or rulings in order to consider making a protest according to cassation procedures. The postponement duration must not exceed 3 months.

For a civil ruling in an administrative judgment or ruling, a person have the right to protest may request the civil judgment enforcement agency to postpone the enforcement in accordance with the civil judgment enforcement law.

2. A person who has made a protest according to cassation procedures against a legally effective judgment or ruling may decide to suspend the execution of such judgment or ruling until the cassation decision is issued.

Article 214. Decision to protest according to cassation procedures

A decision to protest according to cassation procedures must contain the following principal details:

1. Serial number and date of the protest decision;

2. Position of the protest decision issuer;

3. Serial number and date of the legally effective judgment or ruling protested against;

4. Rulings of the legally effective judgment or ruling protested against;

5. Comments and analysis of the violations or errors of the legally effective judgment or ruling protested against;

6. Legal grounds for making the protest decision;

7. Decision to protest part or the whole of the legally effective judgment or ruling;

8. Name of the court that is competent to conduct cassation review of the case;

9. Proposals of the protesting person.

Article 215. Time limit for protest according to cassation procedures

1. Persons having the right to protest according to cassation procedures may only make their protests within 2 years after the date the court judgment or ruling takes legal effect, except the case specified in Clause 2 of this Article.

2. In case the involved party has made a written request for protest according to cassation procedures within the time limit specified in Clause 1, Article 211 of this Law but the person having the right to protest only detects a serious law violation in the legally effective court judgment or ruling after the time limit for protest expires, the time limit for making protests according to cassation procedures applicable to persons having such right will not depend on that specified in Clause 1 of this Article.

3. The time limit for protesting civil rulings in a court judgment or ruling complies with the civil procedure law.

Article 216. Sending of decisions to protest according to cassation procedures

1. A decision to protest according to cassation procedures must be immediately sent to the court that has issued the legally effective judgment or ruling protested against, the involved parties, the competent civil judgment enforcement agency and persons with rights and obligations related to the protested contents.

2. In case the President of the Supreme People's Court or the president of a provincial- level court protests, the protest decision and the case file must be immediately sent to the same-level procuracy. The procuracy shall study the case file within 15 days after the date of receiving it; upon the expiration of such time limit, the procuracy shall transfer the case file to the court competent to review the case according to cassation procedures.

3. In case the Director of the Supreme People's Procuracy or the director of a provincial-level procuracy protests, the protest decision must be immediately sent to the court competent to review the case according to cassation procedures.

Article 217. Modification, supplementation, withdrawal of protests

1. The person who has protested according to cassation procedures may modify or supplement the protest decision if the protest time limit specified in Article 215 of this Law has not yet expired.

2. Before the opening of or during a court hearing, the person who has protested may withdraw his/her protest. The withdrawal of the protest prior to the opening of a court hearing must be recorded in a document for sending under Article 216 of this Law. The withdrawal of the protest during a court hearing shall be recorded in the hearing's minutes and the cassation panel shall issue a decision to terminate the cassation trial.

Article 218. Composition of cassation panel

1. The cassation panel of a provincial-level court is the judges' committee of the provincial-level court; at least two-thirds of the total members shall participate in reviewing a legally effective judgment or ruling according to cassation procedures; the president of the provincial-level court shall preside over the cassation hearing.

2. The cassation panel of the Administrative Tribunal of the Supreme People's Court consists of three judges of the Supreme People's Court; all three judges shall participate in reviewing a legally effective judgment or ruling according to cassation procedures; the president of the Administrative Tribunal of the Supreme People's Court shall assign a judge to preside over the cassation hearing.

3. The cassation panel of the Supreme People's Court is the Judges' Council of the Supreme People's Court; at least two-thirds of the total members shall participate in reviewing a legally effective judgment or ruling according to cassation procedures; the President of the Supreme People's Court shall preside over the cassation hearing.

Article 219. Cassation jurisdiction

1. The judges' committee of the provincial-level court shall review according to cassation procedures cases in which legally effective judgments and rulings of district-level courts are protested against.

2. The Administrative Tribunal of the Supreme People's Court shall review according to cassation procedures cases in which legally effective judgments or rulings of provincial-level courts are protested against.

3. The Judges' Council of the Supreme People's Court shall review according to cassation procedures legally effective judgments and rulings of appellate courts or the Administrative Tribunal of the Supreme People's Court which are protested against.

4. When the legally effective judgments or rulings on a single administrative case which fall under the jurisdiction of the courts of different levels are protested against, the competent superior court shall review the whole case according to cassation procedures.

Article 220. Participants in cassation hearings

1. A cassation hearing must be participated by the same-level procuracy.

2. When seeing it necessary, the court may summon persons who have participated in procedures and other persons related to the protest to participate in cassation hearings.

Article 221. Time limit for opening cassation hearings

Within 2 months after the date of receiving the protest and case file, the court competent to review the case according to cassation procedures shall open a hearing to review the case according to cassation procedures.

Article 222. Preparations for cassation hearings

The president of a court or the President of the Administrative Tribunal of the Supreme People's Court shall assign a judge to prepare a written presentation on the case at the court hearing. The presentation must summarize the case content and the judgments and rulings of the courts of different levels, and the content of the protest. The presentation document must be sent to members of the cassation panel at least 7 working days before the opening of the cassation hearing.

Article 223. Proceedings at cassation hearings

1. After the presiding judge opens the hearing, a member of the cassation panel shall present the content of the case; the case settlement process; rulings of the legally effective court judgment or ruling protested against, grounds for and reasoning in the protest and proposals of the protesting person.

2. In case procedure participants arc summoned by the court, these persons may present their opinions on the protest decision.

The representative of the procuracy expresses the procuracy's opinions on the protest decision.

3. Members of the cassation panel shall discuss and express their opinions on the settlement of the case. The representative of the procuracy shall present the procuracy's opinions on the settlement of the case.

4. The cassation panel shall vote on the settlement of the case.

The cassation decision of the judges' committee of the provincial-level people's court or the cassation panel of the Administrative Tribunal of the Supreme People's Court must be voted for by more than half of the total number of its members.

The judges' committee of the provincial-level court, the cassation panel of the Administrative Tribunal of the Supreme People's Court or the Judges' Council of the Supreme People's Court shall vote in' the order of voting for and then against the protest and other opinions', if no issue is voted for by more than half of the total number of members of the judges' committee of the provincial-level court, the cassation panel of the Administrative Tribunal of the Supreme People's Court or the Judges' Council of the Supreme People's Court, the court hearing shall be postponed. Within 30 days after the date of issuing the decision to postpone the court hearing, the judges committee of the provincial-level court, the cassation panel of the Administrative Tribunal of the Supreme People's Court or the Judges' Council of the Supreme People's Court shall retry the case with the participation of all members.

Article 224. Scope of cassation

1. The cassation panel shall only review parts of the legally effective judgment or ruling protested against or related to the review of the protested contents.

2. The cassation panel may review parts of the legally effective judgment or ruling which is neither protested nor related to the review of the protested against contents, if these parts infringe upon the interests of the State, or the interests of a third party other than the involved parties in the case.

Article 225. Jurisdiction of cassation panel

1. To reject the protest and uphold the legally effective judgment or ruling.

2. To cancel the legally effective judgment or ruling protested against and uphold the lawful judgment or ruling of a subordinate court which has been cancelled or amended;

3. To cancel the legally effective judgment or ruling protested against for retrial according to first-instance or appellate procedures;

4. To cancel the judgment or ruling of the court which has tried the case and terminate the settlement thereof.

Article 226. Cancellation of legally effective judgments or rulings which are protested against and upholding of lawful judgments or rulings of subordinate courts which have been cancelled or amended.

The cassation panel shall issue a decision to cancel the legally effective judgment or ruling protested against and uphold the judgment or ruling of a subordinate court which conducted the trial lawfully which is cancelled or partially or wholly amended by the legally effective judgment or ruling protested against.

Article 227. Cancellation of legally effective judgments or rulings which are protested against for re-trial according to first-instance or appellate procedures

The cassation panel shall issue a decision to cancel the legally effective judgment or ruling protested against for retrial according to first-instance or appellate procedures in the following cases:

1. The collection of evidence and proving have been carried out inadequately or in contravention of the provisions of Chapter VI of this Law;

2. The conclusions in the judgment or ruling do not conform to the objective details of the case or mere is a serious error in the application of law;

3. The composition of the first-instance or appellate trial panel fails to comply with the provisions of this Law or there is another serious violation of procedural law.

Article 228. Cancellation of judgments or rulings of courts which have settled the cases and termination of the settlement of the cases

The cassation panel shall issue a decision to cancel the judgment or ruling of the court which has settled the case and terminate the settlement of the case if, in the course of first-instance or appellate trial, there arises a case specified in Clause 1, Article 120 of this Law. The cassation court shall deliver the case file back to the court which has conducted the first-instance trial for returning the lawsuit petition together with enclosed documents and evidence to the plaintiff, if so requested.

Article 229. Cassation decision

1. The cassation panel shall issue a cassation decision in the name of the Socialist Republic of Vietnam.

2. A cassation decision must contain the following details:

a/ Date and venue of the court hearing;

b/ Full names of members of the cassation panel. In case the cassation panel is the judges' committee of the provincial-level people's court or the Judges' Council of the Supreme People's Court, the full name and position of the presiding judge and the number of members participating in the hearing shall be specified;

c/ Full names of the court clerk and the procurator participating in the court hearing;

d/ Name of the case brought to cassation trial by the panel;

e/ Full names and addresses of the involved parties in the case;

f/ Summary of the content of the case, rulings of the legally effective judgment or ruling protested against;

g/ Protest decision; reason for making the protest;

h/ Reasoning of the cassation panel, including an analysis of the grounds for accepting or rejecting the protest;

i/ Points, clauses and articles of the Civil Procedure Code which the cassation panel refers to in making its decision;

j/ Decision of the cassation panel.

Article 230. Effect of cassation decision

A cassation decision takes legal effect on the date of its issuance by the cassation panel.

Article 231. Sending of cassation decision

Within 30 working days counting from the date of issuance of a cassation decision, the cassation panel shall send it to:

1. The involved parties;

2. The court which has rendered the legally effective judgment or ruling protested against;

3. The same-level procuracy and the procuracy competent to supervise judgment execution;

4. The competent civil judgment enforcement agency;

5. The immediate superior agency of the defendant.