Chương IV Luật tố tụng hành chính 2015: Người tham gia tố tụng, quyền và nghĩa vụ của người tham gia tố tụng

Chapter IV

PROCEDURE PARTICIPANTS AND THEIR RIGHTS AND OBLIGATIONS

Article 53. Procedure participants

Administrative procedure participants include involved parties, representatives of involved parties, defense counsels of the lawful rights and interests of involved parties, witnesses, expert witnesses and interpreters.

Article 54. Administrative procedure legal capacity and administrative procedure act capacity of involved parties

1. Administrative procedure legal capacity means the capacity to have law-established rights and obligations in administrative procedures. All agencies, organizations and individuals have the same administrative procedure legal capacity in requesting the court to protect their lawful rights and interests.

2. Administrative procedure act capacity means the capacity of a person to exercise his/ her administrative procedure rights or perform his/her administrative procedure obligations on his/her own or to authorize a representative to participate in administrative procedures.

3. An involved party who is aged full 18 years or older has the full administrative procedure act capacity, except those who have lost their civil act capacity or otherwise provided by law.

The administrative procedure act capacity of a person who has civil act capacity restricted or meets a difficulty in cognizing or controlling his/her acts shall be determined under a court ruling.

4. An involved party who is a minor or a person who has lost his/her civil act capacity or has civil act capacity restricted or meets a difficulty in cognizing or controlling his/her acts shall exercise his/her rights and perform his/her obligations in administrative procedures through his/ her at-law representative.

5. An involved party that is an agency or organization shall exercise its rights and perform its obligations in administrative procedures through its at-law representative.

Article 55. Rights and obligations of involved parties

When participating in procedures, involved parties have equal rights and obligations, including:

1. To respect the court and strictly observe internal rules of court hearings;

2. To pay legal cost advances, legal cost, fees and other procedural expenses prescribed by law;

3. To maintain, change, add or withdraw their claims;

4. To provide their residence or head office addresses in a sufficient and accurate manner; in the course of case settlement by the court, to promptly notify other involved parties and the court of any change in their residence or head office addresses;

5. To provide documents and evidences to prove and protect their lawful rights and interests;

6. To request agencies, organizations and individuals that are keeping or managing documents or evidences to provide such documents or evidences for furnishing them to the court;

7. To request the court to verify or collect documents and evidences of the case which they cannot verify or collect; to request the court to compel the production by other involved parties of documents or evidences which they are keeping or managing; to request the court to rule on compelling the provision by agencies, organizations or individuals that are keeping or managing evidences of such evidences; and to request the court to summon witnesses, solicit expert examination or valuation of assets;

8. To get access to, take notes and make copies of documents or evidences produced by other involved parties or collected by the court, except documents or evidences not permitted to be disclosed under Clause 2, Article 96 of this Law;

9. To submit copies of lawsuit petitions and documents or evidences to the court for sending to other involved parties or lawful representatives of other involved parties, except documents or evidences not permitted to be disclosed under Clause 2, Article 96 of this Law;

10. To request the court to rule on the application, change or cancellation of provisional urgent measures;

11. To request the court to hold sessions to check the submission of, access to, or disclosure of, evidences and dialogues, and participate in such sessions in the course of case settlement by the court;

12. To receive valid notices for exercising their rights and performing their obligations;

13. To defend their lawful rights and interests or ask lawyers or other persons to do so;

14. To request the change of procedure-conducting persons or procedure participants;

15. To participate in court hearings and session;

16. To be present in response to court summonses and abide by court rulings in the course of case settlement by the court;

17. To request the court to summon persons with related interests and obligations to participate in procedures;

18. To request the court to suspend the case settlement;

19. To give questions to other persons on matters related to the case or propose to the court matters on which questions must be given to other persons; to confront themselves with one another or with witnesses;

20. To make arguments at court hearings, present their opinions on evidence assessment and applicable laws;

21. To be provided with extracts of court judgments or rulings;

22. To appeal against or complain about court judgments or rulings;

23. To request competent persons to file protests against legally effective court judgments or rulings according to cassation or reopening procedures;

24. To strictly abide by legally effective court judgments and rulings;

25. To exercise their rights in a good will and refrain from abusing their rights to obstruct procedural activities of the court and other involved parties;

26. Other rights and obligations provided by law.

Article 56. Rights and obligations of plaintiffs

Plaintiffs have the following rights and obligations;

1. The rights and obligations specified in Article 55 of this Law;

2. To change contents of their lawsuit claims within the statute of limitations for lawsuit institution; to withdraw part or the whole of their lawsuit claims.

Article 57. Rights and obligations of defendants

Defendants have the following rights and obligations:

1. The rights and obligations specified in Article 55 of this Law;

2. To be informed by the court of lawsuits against them;

3. To prove the correctness and lawfulness of administrative decisions or acts over which lawsuits are instituted;

4. To modify or cancel administrative decisions, disciplinary decisions on dismissal, or decisions on settlement of complaints about decisions on handling of competition cases or voter lists over which lawsuits are instituted; to stop or remedy administrative acts over which lawsuits are instituted.

Article 58. Rights and obligations of persons with related interests and obligations

1. Persons with related interests and obligations may make independent claims and participate in procedures on the side of the plaintiff or the defendant.

2. Persons with related interests and obligations that make independent claims have the rights and obligations of the plaintiff specified in Article 56 of this Law.

3. Persons with related interests and obligations who participate in procedures on the side of the plaintiff or have interests only have the rights and obligations specified in Article 55 of this Law.

4. Persons with related interests and obligations who participate in procedures on the side of the defendant or have obligations only have the rights and obligations specified in Clauses 1 and 2, Article 57 of this Law.

Article 59. Inheritance of administrative procedural rights and obligations

1. In case the plaintiff being an individual is dead and his/her rights and obligations are bequeathed, his/her heir may participate in procedures.

2. In case the plaintiff' being an agency or organization is consolidated, merged, split up, divided or dissolved, the agency, organization or individual that inherits the rights and obligations of the former agency or organization shall exercise the procedural rights and perform the procedural obligations of such agency or organization.

3. In case the defendant is a competent person in an agency or organization that is consolidated, merged, split up, divided or dissolved, the person who takes over the rights and obligations of the defendant shall participate in procedures.

In case the defendant is a competent person in an agency or organization where his/her post no longer exists, the head of this agency or organization shall exercise the rights and perform the obligations of the defendant.

4. In case the defendant is an agency or organization that is consolidated, merged, divided or split up, the agency or organization that inherits the rights and obligations of the former agency or organization shall exercise the procedural rights and perform the procedural obligations of such agency or organization.

In case the defendant is a dissolved agency or organization with nobody to inherit its rights and obligations, its superior agency or organization shall exercise the rights and perform the obligations of the defendant.

5. In case of merger, division, splitting up, dissolution or adjustment of administrative boundaries of an administrative unit but the subject of the administrative decision sees a change, the agency, organization or individual that has issued such administrative decision shall participate in procedures as the defendant at the court of the locality where such agency, organization or individual is based. The agency receiving the subject of the administrative decision over which a lawsuit is instituted shall participate in procedures as a person with related interests and obligations.

6. The inheritance of procedural rights and obligations may be accepted by the court at any stage in the process of settlement of an administrative case.

Article 60. Representatives

1. Representatives in administrative procedures include at-law representatives and authorized representatives.

2. An at-law representative in administrative procedures may be any of the following persons, unless his/her representation right is restricted in accordance with law:

a/ Father or mother, for a minor child;

b/ Guardian, for a ward;

c/ A person appointed by the court, for a person having civil act capacity restricted or having a difficulty in cognizing or controlling his/her act;

d/ Head of an agency or organization who is appointed or elected in accordance with law;

dd/ Other persons defined by law.

3. Authorized representatives in administrative procedures must have the full civil act capacity and be authorized in writing by involved parties or their at-law representatives.

In case a household, cooperative group or another organization without the legal person status participates in administrative procedures, its members may authorize one member among them or another person to act as their representative to participate in administrative procedures.

In case a defendant is an agency or organization or its head, he/she may only authorize his/her deputy to represent him/her in administrative procedures. The authorized person shall participate in the settlement of the whole case and fully exercise the rights and perform the obligations of defendants specified in this Law.

4. At-law representatives and authorized representatives in administrative procedures shall terminate their representation in accordance with the Civil Code.

5. At-law representatives in administrative procedures shall exercise administrative procedural rights and perform administrative procedural obligations of involved parties whom they represent.

Authorized representatives in administrative procedures shall exercise all administrative procedural rights and perform all administrative procedural obligations of their authorizers. An authorized person may not sub-authorize a third party.

6. The following persons may not act as representatives:

a/ Those being involved parties in the same case with to-be-represented persons whose lawful rights and interests conflict with those of to-be-represented persons;

b/ Those currently acting as representatives in administrative procedures for other involved parties whose lawful rights and interests conflict with those of to-be-represented persons in the same case.

7. Cadres and civil servants of courts, procuracies, inspectorates and judgment enforcement agencies; or civil servants, officers and non-commissioned officers in public security forces may not act as representatives in administrative procedures, unless they participate in the capacity as representatives of their agencies or as at-law representatives.

Article 61. Defense counsels of lawful rights and interests of involved parties

1. Defense counsels of the lawful rights and interests of involved parties are persons participating in procedures to defend the lawful rights and interests of involved parties.

2. The following persons may act as defense counsels of the lawful rights and interests of involved parties when requested by such involved parties and registered by the court as defense counsels of the lawful rights and interests of involved parties;

a/ Lawyers who participate in procedures in accordance with the law on lawyers;

b/ Legal counsels or persons who join in providing legal aid in accordance with the Law on Legal Aid;

c/ Vietnamese citizens who have the full civil act capacity and legal knowledge, have not yet been convicted or had been convicted but have had their criminal records remitted, are not subject to any administrative handling measure and are not cadres or civil servants of courts, procuracies, inspectorates or judgment enforcement agencies or civil servants, officers or noncommissioned officers in public security forces.

3. Defense counsels of the lawful rights and interests of involved parties may defend the lawful rights and interests of many involved parties in the same case, provided the lawful rights and interests of these parties do not conflict. Many defense counsels may jointly defend the lawful rights and interests of an involved party in a case.

4. When requesting the court to carry out procedures for registration of a defense counsel of the lawful rights and interests of involved parties, a requester shall produce the following papers:

a/ A lawyer shall produce the papers specified in Clause 2, Article 27 of the Law on Lawyers;

b/ A legal aid provider or a person participating in the provision of legal aid shall produce a document on appointment of a person providing legal aid issued by an organization providing legal aid and legal aid provider card or lawyer card;

c/ A Vietnamese citizen who fully satisfies the conditions prescribed at Point c, Clause 2 of this Article shall produce a written request of the involved parties and his/her personal identification paper.

5. After checking the produced papers and deeming that the requester fully satisfies the conditions for acting as a defense counsel of the lawful rights and interests of involved parties specified in Clause 2, 3 or 4 of this Article, within 3 working days after receiving the request, the court shall record in the register the defense counsel of the lawful rights and interests of involved parties and give certification in the written request for the defense counsel. In case of refusal to register the defense counsel, the court shall notify such in writing to the requester, clearly stating the reason.

6. Defense counsels of the lawful rights and interests of involved parties have the following rights and obligations:

a/ To participate in procedures from the time when the lawsuit is instituted or at any stage of the administrative proceedings:

b/ To collect documents and evidences and furnish the court with documents and evidences, study case files and take notes of and copy necessary documents included in case files for the purpose of defending the lawful rights and interests of involved parties, except documents and evidences not permitted to be disclosed under Clause 2, Article 96 of this Law;

c/ To participate in court hearings or sessions or send documents for defending the lawful rights and interests of involved parties to the court for examination in case of failure to participate in court hearings or sessions;

d/ To request on behalf of involved parties the change of procedure-conducting persons and other procedure participants in accordance with this Law;

dd/ To assist involved parties in legal matters related to the defense of their lawful rights and interests; to receive on behalf of involved parties procedural papers and documents delivered or notified by the court in case of being authorized by involved parties and forward such papers and documents to involved parties;

e/ The rights and obligations provided in Clauses 1, 6, 9, 16, 19 and 20, Article 55 of this Law.

g/ Other rights and obligations provided by law.

Article 62. Witnesses

1. Witnesses are persons who know circumstances related to cases and are summoned by the court at the request of involved parties to participate in procedures. Persons who have lost the civil act capacity may not act as witnesses.

2. Witnesses have the following rights and obligations;

a/ To provide all information, documents and objects in their possession which are related to the settlement of cases;

b/ To honestly testify to circumstances which they know and are related to the settlement of cases;

c/ To be held responsible before law for their testimonies, and pay compensations for damage caused by their untruthful testimonies to involved parties or other persons;

d/ To be present at court and court hearings in response to court summonses in case witness testimonies must be publicly taken at court or court hearings. In case witnesses are absent from court hearings without plausible reasons and their absence impedes the trial, the trial panel may issue decisions to escort them to court hearings;

dd/ To undertake before court to exercise their rights and perform their obligations, except minor witnesses;

e/ To refuse to make testimonies if their testimonies are related to state secrets, professional secrets, business secrets or privacy secrets or badly or adversely affect involved parties who are their relatives;

g/ To take leaves during the time they are summoned by the court or make testimonies;

h/ To have relevant expenses paid in accordance with law;

i/ To request courts that have summoned them and competent state agencies to protect their lives, health, honor, dignity, property, and other lawful rights and interests when they participate in procedures;

k/ To complain about procedural acts, and denounce illegal acts of procedure-conducting agencies and persons.

Article 63. Expert witnesses

1. Expert witnesses are persons who possess necessary knowledge and experience, as required by law, about the fields in which exist objects of expert examination, who are selected under agreement between involved parties or invited by the court to conduct expert examination of these objects at the request of an involved party or involved parties.

2. Expert witnesses have the following rights and obligations:

a/ To read documents included in case files and related to objects of expert examination; to request the court to provide documents necessary for the expert examination;

b/ To question procedure participants about matters related to objects of expert examination;

c/ To be present in response to court summonses and answer questions related to the expert examination;

d/ To notify in writing the court of the impossibility to conduct expert examination for the reason that contents necessary for expert examination fall beyond their professional capacity or documents provided for the expert examination are insufficient or unusable;

dd/ To preserve received documents and return them to the court together with expert examination conclusions or with a notice of the impossibility to conduct expert examination;

e/ To refrain from collecting documents by themselves for conducting expert examination or contacting other procedure participants if such contact might affect expert examination results; to refrain from disclosing secret information which they know while conducting expert examination or from notifying expert examination results to persons other than those who have decided to solicit expert examination opinions;

g/ To make independent, honest and grounded expert examination conclusions;

h/ To have relevant expenses paid in accordance with law;

i/ To undertake before the court to exercise their rights and perform their obligations.

3. Expert witnesses shall refuse to conduct expert examination or be changed in the following cases:

a/ They are concurrently involved parties, representatives or relatives of involved parties;

b/ They have participated in the procedures in the capacity as defense counsels of the lawful rights and interests of involved parties, witnesses or interpreters in the same case;

c/ They have examined the same object which needs to be examined in the same case;

d/ They have conducted the procedures in the same case in the capacity as judges, people’s assessors, verifiers, court clerks, procurators or examiners;

dd/ There are other clear grounds to believe that they might be not impartial while performing their duties.

Article 64. Interpreters

1. Interpreters are persons who are capable of translating another language into Vietnamese and vice versa when a procedure participant cannot speak Vietnamese. An interpreter is selected by an involved party or under agreement between involved parties and accepted by the court or required by the court to interpret.

Those who know the language of persons with vision disability or those who can hear or speak the language of persons with hearing or speaking disability are also regarded as interpreters.

In case only a representative or relative of a person with vision, hearing or speaking disability knows the latter’s language or signs, such representative or relative may be accepted by the court to act as an interpreter for such person with disability.

2. Interpreters have the following rights and obligations:

a/ To be present in response to court summonses;

b/ To interpret truthfully, objectively and correctly;

c/ To request procedure-conducting persons and procedure participants to further explain their statements which need to be interpreted;

d/ To refrain from contacting other procedure participants if such contact affects the truthfulness, objectivity and correctness of their interpretation;

dd/ To have relevant expenses paid in accordance with law;

e/ To undertake before the court to exercise their rights and perform their obligations.

3. Interpreters shall refuse to interpret or be changed in the following cases:

a/ They are concurrently involved parties, representatives or relatives of involved parties;

b/ They have participated in the procedures in the capacity as defense counsels of the lawful rights and interests of involved parties, witnesses or expert witnesses in the same case;

c/ They have conducted the procedures in the capacity as judges, people’s assessors, verifiers, court clerks, procurators or examiners;

d/ There are other clear grounds to believe that they might be not impartial while performing their duties.

Article 65. Procedures for rejecting expert witnesses or interpreters or requesting change of expert witnesses or interpreters

1. Before the opening of a court hearing, the rejection of an expert witness or interpreter or the request for change of an expert witness or interpreter shall be made in writing, clearly stating the reason for such rejection or request. The change of an expert witness or interpreter shall be decided by the chief justice of the court.

2. At a court hearing, the rejection of an expert witness or interpreter or the request for change of an expert witness or interpreter shall be recorded in the court hearing minutes. The change of an expert witness or interpreter shall be decided by the trial panel after hearing opinions of the person requested to be changed.