Chapter III
PROCEDURE-CONDUCTING AGENCIES AND PERSONS AND CHANGE OF PROCEDURE-CONDUCTING PERSONS
Article 36. Procedure-conducting agencies and persons
1. Administrative procedure-conducting agencies include:
a/ Courts;
b/ Procuracies.
2. Administrative procedure-conducting persons include:
a/ Chief justices, judges, people’s assessors, verifiers and clerks of courts;
b/ Chief procurators, procurators and examiners.
Article 37. Duties and powers of chief justices of courts
1. Chief justices of courts have the following duties and powers:
a/ To organize the settlement of administrative cases under their courts’ jurisdiction; to adhere to the principle that judges and people’s assessors conduct trial independently and abide by law only;
b/ To decide to assign judges to settle administrative cases and people’s assessors to participate in trial panels of administrative cases; to assign verifiers and court clerks to conduct procedures for administrative cases on the principles specified in Article 14 of this Law;
c/ To decide to change judges, people’s assessors and court clerks before the opening of court hearings;
d/ To decide to change expert witnesses and interpreters before the opening of court hearings;
dd/ To issue administrative procedural decisions and conduct administrative procedural activities;
e/ To file protests against legally effective court judgments or rulings of courts according to cassation or reopening procedures or to recommend chief justices of competent courts to consider filing protests against legally effective court judgments or rulings of courts according to cassation or reopening procedures;
g/ To settle complaints and denunciations in accordance with this Law;
h/ To recommend agencies or individuals that have issued administrative decisions or taken administrative acts related to administrative decisions or acts over which lawsuits are instituted to consider amending, supplementing or annulling such decisions or terminating such acts if detecting a sign of unlawfulness;
i/ To recommend competent agencies or individuals to consider amending, supplementing or annulling legal documents if detecting a sign of contravention of the Constitution, laws or legal documents of superior state agencies in accordance with this Law;
k/ To handle acts obstructing administrative procedural activities in accordance with law;
l/ To perform other duties and exercise other powers in accordance with this Law.
2. When the chief justice of a court is absent, a deputy chief justice authorized by the chief justice shall perform the duties and exercise the powers of the chief justice, except the power to decide to file protests provided at Point e, Clause 1 of this Article. Authorized deputy chief justices shall be answerable to chief justices for the performance of authorized duties and exercise of authorized powers.
Article 38. Duties and powers of judges
When assigned by chief justices of their courts, judges have the following duties and powers:
1. To process lawsuit petitions;
2. To make administrative case files;
3. To verify and collect documents and evidences; to organize court hearings and sessions to settle administrative cases in accordance with this Law;
4. To decide on application, change or cancellation of provisional urgent measures;
5. To decide on termination, suspension or resumption of the settlement of administrative cases;
6. To explain and guide involved parties in exercising the right to request legal aid in accordance with the law on legal aid;
7. To hold sessions to inspect the submission of, access to, and disclosure of evidences, and dialogues in accordance with this Law;
8. To decide to bring administrative cases to trial;
9. To summon participants in court hearings or sessions;
10. To request agencies, organizations and individuals to provide documents and evidences, or to verify and collect documents and evidences in accordance with this Law;
11. To chair or participate in panels trying administrative cases; to vote on matters falling under the jurisdiction of trial panels;
12. To examine the legality of administrative documents or acts related to administrative decisions or acts over which lawsuits are instituted and request chief justices of courts to propose competent agencies or individuals to review such administrative documents or acts in accordance with law;
13. To discover, and request chief justices of courts to propose competent agencies to amend, supplement or annul, legal documents showing signs of contravention of the Constitution, laws and legal documents of superior state agencies in accordance with this Law;
14. To handle acts obstructing administrative procedural activities in accordance with law;
15. To perform other duties and exercise other powers in accordance with this Law.
Article 39. Duties and powers of people’s assessors
When assigned by chief justices of their courts, people’s assessors have the following duties and powers:
1. To study case files;
2. To request chief justices of courts and judges assigned to settle administrative cases to issue necessary decisions within their competence;
3. To participate in panels trying administrative cases;
4. To conduct procedural activities and have the equal right with judges to vote on matters falling under the jurisdiction of trial panels.
Article 40. Duties and powers of verifiers
When assigned by chief justices of their courts, verifiers have the following duties and powers:
1. To verify administrative case files on which legally effective court judgments or rulings need to be reviewed according to cassation or reopening procedures;
2. To make conclusions on verified cases and report on verification results and propose ways to settle administrative cases to chief justices of courts;
3. To collect documents and evidences in accordance with this Law;
4. To perform other duties and exercise other powers in accordance with this Law.
Article 41. Duties and powers of court clerks
When assigned, court clerks have the following duties and powers:
1. To make necessary professional preparations before the opening of court hearings;
2. To announce internal rules of court hearings;
3. To check and report to trial panels on lists of persons summoned to court hearings;
4. To write minutes of court hearings or sessions and written records of testimonies of procedure participants;
5. To perform other duties and exercise other powers in accordance with this Law.
Article 42. Duties and powers of chief procurators
1. When supervising the law observance in administrative procedural activities, chief procurators have the following tasks and powers:
a/ To organize and direct the supervision of the law observance in administrative procedural activities;
b/ To decide to assign procurators to supervise the law observance in administrative procedural activities, participate in court hearings and sessions to settle administrative cases in accordance with this Law and notify such to courts; to assign examiners to conduct procedural activities for administrative cases on the principles specified in Article 14 of this Law;
c/ To decide to change procurators or examiners;
d/ To file protests against court judgments or rulings according to appellate, cassation or reopening procedures in accordance with this Law;
dd/ To make requests or recommendations in accordance with this Law;
e/ To settle complaints and denunciations in accordance with this Law;
g/ To perform other duties and exercise other rights in accordance with this Law.
2. When the chief procurator is absent, a deputy chief procurator authorized by the chief procurator shall perform the duties and exercise the powers of the chief procurator, except the power to decide to file protests provided at Point d, Clause 1 of this Article. Authorized deputy chief procurators shall be answerable to chief procurators for the performance of authorized duties and exercise of authorized powers.
Article 43. Duties and powers of procurators
When assigned by chief procurators of their procuracies to supervise the law observance in administrative procedural activities, procurators have the following duties and powers:
1. To supervise the return of lawsuit petitions;
2. To supervise the acceptance and settlement of cases;
3. To study case files; to verity and collect documents and evidences under Clause 6, Article 84 of this Law;
4. To participate in court hearings and sessions and present opinions of their procuracies on the settlement of cases in accordance with this Law;
5. To supervise court judgments and rulings;
6. To propose or request courts to conduct procedural activities in accordance with this Law;
7. To request competent chief procurators to file protests against court judgments and rulings involving law violations;
8. To supervise procedural activities of procedure participants; to propose or request competent agencies or organizations to strictly handle procedure participants who commit law violations;
9. To perform other duties and exercise other powers in accordance with this Law.
Article 44. Duties and powers of examiners
When assigned, examiners have the following duties and powers:
1. To study case files and report study results to procurators;
2. To make dossiers for supervision of administrative cases as assigned by procurators or chief procurators;
3. To assist procurators in supervising the law observance in accordance with this Law.
Article 45. Cases of refusal by or change of procedure-conducting persons
Procedure-conducting persons shall refuse to conduct procedures or be changed in any of the following cases:
1. They are concurrently involved parties, representatives or relatives of involved parties;
2. They have participated in the capacity as defense counsels of the lawful rights and interests of involved parties, witnesses, expert witnesses or interpreters in the same case;
3. They have participated in the issuance of administrative decisions or are related to administrative acts over which lawsuits are instituted;
4. They have participated in the issuance of decisions on settlement of complaints about administrative decisions or acts over which lawsuits are instituted;
5. They have participated in the issuance of disciplinary decisions on dismissal of civil servants or decisions on settlement of complaints about disciplinary decisions on dismissal of civil servants over which lawsuits are instituted;
6. They have participated in the issuance of decisions on handling of competition cases or decisions on settlement of complaints about decisions on handling of competition cases over which lawsuits are instituted;
7. They have participated in the making of voter lists which lawsuits are instituted;
8. There are other clear grounds to believe that they might be not impartial while performing their duties.
Article 46. Cases in which judges or people’s assessors shall refuse to conduct procedures or be changed
Judges or people’s assessors shall refuse to conduct procedures or be changed in any of the following cases:
1. They fall into one of the cases specified in Article 45 of this Law;
2. They are members of the same trial panel and relatives; in this case, only one of them may conduct procedures;
3. They have participated in the settlement of an administrative case according to first- instance, appellate, cassation or reopening procedures on which a first-instance judgment, an appellate judgment or ruling, a cassation or reopening ruling and a decision to terminate the settlement of the case or a decision to recognize successful dialogue results have been made, unless they are members of the Judicial Council of the Supreme People’s Court or the judicial committee of a superior people’s court who are allowed to participate in trying such case according to cassation or reopening procedures;
4. They have conducted procedures in the same case in the capacity as verifiers, court clerks, procurators or examiners.
Article 47. Cases in which court clerks or verifiers shall refuse to conduct procedures or be changed
Court clerks or verifiers shall refuse to conduct procedures or be changed in any of the following cases:
1. They fall into any of the cases specified in Article 45 of this Law;
2. They have conducted procedures in the same case in the capacity as judges, people’s assessors, verifiers, court clerks, procurators or examiners;
3. They are relatives of any of other procedure participants in the case.
Article 48. Procedures for refusing to conduct procedures or requesting the change of judges, people’s assessors, verifiers or court clerks
1. The refusal to conduct procedures or request for change of a judge, people’s assessor, verifier or court clerk before the opening of a court hearing must be made in writing, clearly stating the reason and ground for the refusal or request.
2. The refusal to conduct procedures or request for change of a person specified in Clause I of this Article at a court hearing shall be recorded in the hearing minutes.
Article 49. Decisions on change of judges, people’s assessors, verifiers or court clerks
1. Before the opening of a court hearing, the change of a judge, people’s assessor, verifier or court clerk shall be decided by the chief justice of the court.
In case a judge requested to be changed is the chief justice of the court:
a/ The change of a judge being the chief justice of a district-level court shall be decided by the chief justice of a provincial-level court;
b/ The change of a judge being the chief justice of a provincial-level court shall be decided by the chief justice of a superior court having the territorial jurisdiction over such provincial- level court;
c/ The change of a judge being the chief justice of a superior court shall be decided by the Chief Justice of the Supreme People's Court.
2. During a court hearing, the change of a judge, people’s assessor or court clerk shall be decided by the trial panel after hearing opinions of the person requested to be changed. The trial panel shall discuss the change in the deliberation room and make a decision by majority. In case a judge, people’s assessor or court clerk must be changed without any alternative one for immediate replacement, the trial panel shall issue a decision to postpone the court hearing. The chief justice of the court shall decide to appoint a new judge, people’s assessor or court clerk. If the changed person is the chief justice of the court, the competence to decide on appointment must comply with Clause 1 of this Article.
3. Within 5 working days after the court hearing is postponed, the chief justice of the court shall appoint a person in replacement of the changed one.
Article 50. Cases in which procurators or examiners shall refuse to conduct procedures or be changed
Procurators or examiners shall refuse to conduct procedures or be changed in any of the following cases:
1. They fall into any of thế cases specified in Article 45 of this Law;
2. They have conducted procedures in the same case in the capacity as judges, people’s assessors, verifiers, court clerks, procurators or examiners.
Article 51. Procedures for refusing to conduct procedures or requesting the change of procurators or examiners
1. The refusal to conduct procedures or request for change of a procurator before the opening of a court hearing must be made in writing, clearly stating the reason and ground for the refusal or request.
The refusal to conduct procedures or request for change of an examiner must be made in writing, clearly stating the reason and ground for the refusal or request.
2. The refusal to conduct procedures or request for change of a procurator at a court hearing shall be recorded in the hearing minutes.
Article 52. Decisions on change of procurators or examiners
1. Before the opening of a court hearing, the change of a procurator shall be decided by the chief procurator of the same-level procuracy; if a procurator requested to be changed is the chief procurator, the change shall be decided by the chief procurator of the immediate superior procuracy.
The change of an examiner shall be decided by the chief procurator of the same-level procuracy.
2. During a court hearing, the change of a procurator shall be decided by the trial panel after hearing opinions of the person requested to be changed. The trial panel shall discuss the change in the deliberation room and make a decision by majority.
In case a procurator must be changed, the trial panel shall issue a decision to postpone the court hearing. The appointment of a new procurator to replace the changed one shall be decided by the chief procurator of the same-level procuracy. If the changed procurator is the chief procurator, the change shall be decided by the chief procurator of the immediate superior procuracy.
3. Within 3 working days after the court hearing is postponed, the chief procurator of the procuracy shall appoint a person in replacement of the changed one and notify such in writing to the court.
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