Chương IX Luật tố tụng hành chính 2015: Khởi kiện, thụ lý vụ án

Chapter IX

INSTITUTION AND ACCEPTANCE OF LAWSUITS

1. Agencies, organizations or individuals may institute lawsuits over administrative decisions or acts or disciplinary decisions on dismissal in case they disagree with these decisions or acts or they have filed complaints with persons competent to settle complaints but their complaints remain unsettled upon the expiration of the law-prescribed time limit for complaint settlement or they disagree with the settlement of their complaints about these decisions or acts.

2. Individuals and organizations may institute lawsuits over decisions on settlement of complaints about decisions on handling of competition cases in case they disagree with these decisions.

3. Individuals may institute lawsuits over voter lists in case they have filed complaints with agencies competent to settle complaints but their complaints remain unsettled upon the expiration of the law-prescribed time limit for complaint settlement or they disagree with the settlement of their complaints.

Article 116. Statute of limitations for lawsuit institution

1. The statute of limitations for lawsuit institution means a time limit within which agencies, organizations or individuals may institute lawsuits to request courts settling administrative cases in order to protect their infringed lawful rights and interests. Upon the expiration of that time limit, they no longer have the right to institute lawsuits.

2. The statute of limitations for lawsuit institution in each case is:

a/ One year from the date of receipt of or knowledge about an administrative decision or act or a disciplinary decision on dismissal;

b/ Thirty days from the date of receipt of a decision on settlement of a complaint about a decision on handling of a competition case;

c/ The period from the date of receipt of a notice of results of complaint settlement by the voter list-making agency or the date of expiration of the time limit for complaint settlement, in case no notice of results of complaint settlement by the voter list-making agency is received, to the date five days prior to the election date.

3. In case an involved party files a complaint in accordance with law with a state agency or person competent to settle complaints, the statute of limitations for instituting a lawsuit is:

a/ One year from the date of receipt of or knowledge about the first-time or second-time complaint settlement decision;

b/ One year from the date of expiration of the law-prescribed time limit for complaint settlement, in case the competent state agency or person fails to settle the complaint and issues no reply to the complainant.

4. In case a plaintiff cannot institute a lawsuit within the time limit prescribed at Point a or b, Clause 2 of this Article due to a force majeure event or another objective obstacle, the period of existence of such force majeure event or another objective obstacle shall not be counted in the statute of limitations for lawsuit institution.

5. The Civil Code’s provisions on the methods for determining time limits and statutes of limitations are also applicable to administrative procedures.

Article 117. Procedures for instituting lawsuits

1. When wishing to institute an administrative lawsuit, an agency, organization or individual shall make a lawsuit petition under Article 118 of this Law.

2. Individuals with the full administrative procedure act capacity may make lawsuit petitions by themselves or ask others to do so for them. The items of the plaintiff’s name and address in a petition shall be filled with the individual’s full name and address. The individual shall give his/her signature or press his/her fingerprint on the bottom of the petition.

3. Lawful representatives of individuals who are minors, have lost their civil act capacity, have their civil act capacity restricted or meet difficulties in cognizing or controlling their acts may make lawsuit petitions by themselves or ask others to do so. The items of the plaintiff’s name and address in a petition shall be filled with the full name and address of the lawful representative of such an individual. The lawful representative shall give his/her signature or press his/her fingerprint on the bottom of the petition.

4. Individuals falling in the cases specified in Clauses 2 and 3 of this Article who are illiterate, have vision disability or are unable to make lawsuit petitions by themselves or to give their signatures or press their fingerprints on petitions may ask others to make lawsuit petitions to the witness of individuals with the full administrative procedure act capacity who shall give signatures on such petitions.

5. Lawful representatives of agencies or organizations that are plaintiffs may make lawsuit petitions by themselves or ask others to do so. The items of the plaintiff’s name and address in a petition shall be filled with the name and address of the agency or organization and the full name and position of the lawful representative of such agency or organization. The lawful representative of the agency or organization shall give his/her signature and append the seal of the agency or organization on the bottom of the petition. In case the plaintiff is an enterprise, the use of its seal must comply with the Law on Enterprises.

Article 118. Lawsuit petitions

1. A lawsuit petition must contain the following principal contents:

a/ Date of its making;

b/ Court requested to settle the administrative case;

c/ Names, addresses, telephone numbers, facsimile numbers and email addresses (if any) of the plaintiff, defendant and persons with related interests and obligations;

d/ Contents of the administrative decision, the disciplinary decision on dismissal or the decision on settlement of a complaint about a decision on handling of a competition case, contents of settlement of the complaint about a voter list, or a brief description of the administrative act;

dd/ Contents of the complaint settlement decision (if any);

e/ Claims requested to be settled by the court;

g/ Assurance of non-filing of a complaint with a person competent to settle complaints.

2. Lawsuit petitions shall be enclosed with documents and evidences proving the infringed lawful rights and interests of plaintiffs. In case plaintiffs cannot fully enclose documents and evidences with their lawsuit petitions for objective reasons, they shall submit existing documents and evidences to prove their infringed lawful rights and interests. Plaintiffs shall additionally provide other documents and evidences on their own initiative or at the request of the court in the course of settlement of the case.

Article 119. Sending of lawsuit petitions to the court

Plaintiffs shall send their lawsuit petitions and enclosed documents and evidences to the court that has jurisdiction to settle cases by any of the following modes:

a/ Direct filing at court;

b/ Sending by post:

c/ Sending through the court’s e-portal (if any).

Article 120. Determination of date of administrative lawsuit institution

1. In case a plaintiff directly files a lawsuit petition at a competent court, the date of lawsuit institution is the date of filing the petition.

2. In case a plaintiff sends a lawsuit petition online, the date of lawsuit institution is the date of sending the petition.

3. In case a plaintiff sends by post a lawsuit petition to a court, the date of lawsuit institution is the date of postmark of the postal service provider from which the petition is sent. In case the date on the postmark is unidentified, the date of lawsuit institution is the date the plaintiff leaves the petition at the postal service provider’s. The plaintiff shall prove the date he/she leaves his/ her petition at the postal service provider’s, otherwise the date of lawsuit petition is the date the court receives the petition delivered by the postal service provider.

4. In case an accepted lawsuit is transferred to another court under Clause 1, Article 34 or Clause 3, Article 165 of this Law, the date of lawsuit institution is the date the petition is sent to the court that ultra vires accepted the lawsuit, and shall be determined under Clause 1, 2 or 3 of this Article.

Article 121. Receipt and examination of lawsuit petitions

1. The court shall receive lawsuit petitions filed directly at its petition-receiving unit or sent by post by plaintiffs and shall record them in the petition register. If receiving a petition sent online, the court shall print it out and record it in the petition register.

The receipt of lawsuit petitions shall be recorded in the petition register and notified on the court’s e-portal (if any).

Upon receiving a directly filed lawsuit petition, the court shall promptly issue a petition receipt to the plaintiff. Upon receiving a lawsuit petition sent online, the court shall issue a reply to the plaintiff via email. In case of receiving a lawsuit petition sent by post, the court shall send a notice of petition receipt to the plaintiff within 2 working days after receiving the petition.

3. Within 3 working days after receiving a lawsuit petition, the chief justice of the court shall assign a judge to examine it.

4. Within 3 working days after being assigned, the judge shall examine the lawsuit petition, and decide to:

a/ Request modification or supplementation of the petition;

b/ Carry out procedures for accepting the case according to general procedures or summary procedures if the case fully satisfies the conditions prescribed in Clause 1, Article 246 of this Law;

c/ Transfer the lawsuit petition to a court having jurisdiction to settle it and notify such to the plaintiff if the case falls under the jurisdiction of another court; or,

d/ Return the lawsuit petition to the plaintiff, in any of the cases specified in Clause 1, Article 123 of this Law.

4. The result of the petition settlement by a judge specified in Clause 3 of this Article shall be notified to the plaintiff, recorded in the petition register and notified in the court’s e-portal (if any).

Article 122. Request for modification or supplementation of lawsuit petitions

1. After receiving a lawsuit petition, if finding that such petition does not contain all the details specified in Clause 1. Article 118 of this Law, the judge shall notify such in writing to the plaintiff, clearly indicating details which need to be modified or supplemented, for petition modification or supplementation within 10 days after the plaintiff receives the court’s notice.

2. The period of modifying or supplementing the lawsuit petition shall not be counted into the statute of limitations for lawsuit institution.

3. In case the plaintiff has modified or supplemented his/her lawsuit petition under Clause 1, Article 118 of this Law, the judge shall continue accepting the case for settlement. If the plaintiff fails to modify or supplement his/her lawsuit petition as requested by the judge, the judge shall return the petition and enclosed documents and evidences to the plaintiff.

Article 123. Return of lawsuit petitions

1. The judge shall return a lawsuit petition in the following cases:

a/ The plaintiff has no right to institute a lawsuit;

b/ The plaintiff does not have full administrative procedure act capacity;

c/ The plaintiff files the lawsuit petition with the court when failing to satisfy one of the law-prescribed conditions for instituting lawsuits.

d/ The matter has been settled with a legally effective court judgment or ruling;

dd/ The matter does not fall under the jurisdiction of the court;

e/ The plaintiff chooses to have the case or matter settled according to complaint settlement procedures in the case specified in Article 33 of this Law;

g/ The lawsuit petition does not fully contain the contents specified in Clause 1, Article 118 of this Law and is neither modified nor supplemented by the plaintiff under Article 122 of this Law;

h/ The plaintiff fails to produce a receipt of legal cost advance to the court upon the expiration of the notified time limit specified in Clause 1, Article 125 of this Law, unless the plaintiff is exempted from legal cost advance, is not required to pay legal cost advance or has a plausible reason for such failure.

2. When returning the lawsuit petition and enclosed documents and evidences to the plaintiff, the judge shall make a document clearly stating the reason for the return. This document shall be sent immediately to the same-level procuracy.

Copies of lawsuit petitions and enclosed documents and evidences returned by the judge to plaintiffs shall be made and kept at the court for use as a basis for settlement of complaints and recommendations when so requested.

Article 124. Complaints and recommendations about the return of lawsuit petitions and settlement thereof

1. Within 7 days after receiving a document on return of the lawsuit petition, the plaintiff may file a complaint while the procuracy may file a recommendation with the court that has returned the petition.

2. Right after receiving a complaint or recommendation about the return of a lawsuit petition, the chief justice shall assign a judge to consider and settle such complaint or recommendation.

3. Within 5 working days after being assigned, the judge shall hold a session to consider and settle the complaint or recommendation. This session shall be attended by representatives of the same-level procuracy and complaining involved parties. In case the plaintiff or procurator is absent, the judge shall still proceed with the session.

4. Based on documents and evidences related to the return of the lawsuit petition and opinions of the representatives of the procuracy and complaining plaintiff at the session, the judge shall decide to:

a/ Uphold the return of the lawsuit petition and notify such to the plaintiff or the same- level procuracy; or,

b/ Receive back the lawsuit petition and enclosed documents and evidences in order to accept the case.

5. Within 7 days after receiving the judge’s decision on response to the complaint or recommendation about the return of the lawsuit petition, the plaintiff may file a complaint or the procuracy may file a recommendation with the chief justice of the immediate superior court for consideration and settlement.

6. Within 10 days after receiving a complaint or recommendation about the return of a lawsuit petition, the chief justice of the immediate superior court shall decide to:

a/ Uphold the return of the lawsuit petition; or,

b/ Request the first-instance court to receive back the lawsuit petition and enclosed documents and evidences for acceptance of the case.

Complaint or recommendation settlement decisions of chief justices of immediate superior courts are final. Such a decision shall be immediately sent to the plaintiff, the same-level procuracy, the procuracy that has made the recommendation and the court that has issued the decision on return of the lawsuit petition.

Article 125. Acceptance of cases

1. After receiving the lawsuit petition and enclosed documents and evidences, if finding that the case falls under the jurisdiction of the court, the assigned judge shall notify such to the plaintiff for payment of legal cost advance. In case the plaintiff is exempt from, or not required to pay, legal cost advance, the assigned judge shall notify the plaintiff of the acceptance of the case.

Within 10 days after receiving a notice of legal cost advance payment, the plaintiff shall pay the legal cost advance and produce the legal cost advance receipt to the court.

2. The assigned judge shall accept the case on the date the plaintiff produces the legal cost advance receipt. In case the plaintiff is exempt from, or not required to pay, legal cost advance, the date of case acceptance is the date the judge notifies the plaintiff of the acceptance. The acceptance of the case shall be recorded in the acceptance register.

3. In case the plaintiff produces the legal cost advance receipt to the court after the expiration of the time limit prescribed in Clause 1 of this Article:

a/ If the lawsuit petition has not yet been returned, the judge shall accept the case for settlement;

b/ If the lawsuit petition has been returned and the plaintiff can prove that he/she has paid the legal cost advance within the prescribed time limit but produces the legal cost advance receipt to the court after the expiration of the prescribed time limit due to a force majeure event or an objective obstacle, the judge shall request the plaintiff to file the lawsuit petition and enclosed documents and evidences again for acceptance of the case. In this case, the date of lawsuit institution is the date of filing the lawsuit petition for the first time;

c/ In case the plaintiff pays the legal cost advance and produces the legal cost advance receipt to the court after the judge returns the lawsuit petition not due to a force majeure event or an objective obstacle, the judge shall request the plaintiff to file the lawsuit petition and enclosed documents and evidences again for acceptance of the case. In this case, the date of lawsuit institution is the date of filing the lawsuit petition again.

4. In case the plaintiff fails to produce the legal cost advance receipt to the court upon the expiration of the time limit prescribed in Clause 1 of this Article, the court shall notify him/her of non-acceptance of the case for the reason of his/her failure to pay the legal cost advance. In this case, the plaintiff may file the lawsuit petition again provided the statute of limitations for lawsuit institution has not expired.

5. After the judge accepts the case, if the court receives an independent claim of a person with related interests and obligations under Article 129 of this Law for settlement in the same administrative case, the date of acceptance of the case shall be determined as follows:

a/ In case the person with related interests and obligations is exempt from, or not required to pay, the legal cost advance, the date of acceptance of the case is the date the court receives the independent claim of the person with related interests and obligations and enclosed documents and evidences;

b/ In case the person with related interests and obligations is required to pay the legal cost advance, the date of acceptance of the case is the date this person produces the legal cost advance receipt to the court;

c/ In case more than one person with related interests and obligations make independent claims, the date of acceptance of the case is the date the court receives the last claim, if these persons are all exempt from, or are not required to pay, the legal cost advance, or the date the last legal cost advance receipt is produced to the court, if these persons are required to pay the legal cost advance.

6. When receiving a legal cost advance receipt of an involved party, the court shall give him/her a written certification that it has received the legal cost advance receipt.

Article 126. Notification of acceptance of cases

1. Within 3 working days after accepting a case, the judge who has accepted such case shall notify in writing the defendant and persons with interests and obligations related to the settlement of the case and the same-level procuracy of the court’s acceptance of the case and publicly notify it on the court’s e-portal (if any).

2. A notice must have the following principal details:

a/ Date of making the notice;

b/ Name and address of the court that has accepted the case;

c/ Names and addresses of the plaintiff and defendant;

d/ Specific matters which are requested by the plaintiff to be settled by the court;

dd/ Whether the case is accepted according to general procedures or summary procedures;

e/ List of documents and evidences enclosed by the plaintiff with the lawsuit petition;

g/ Time limit for the defendant and persons with related interests and obligations to submit to the court their written opinions on the claim(s) of the plaintiff and enclosed documents and evidences or on independent claim(s) (if any);

h/ Legal consequences of the failure of the defendant and persons with related interests and obligations to submit to the court their written opinions on the claim(s) of the plaintiff.

Article 127. Assignment of judges to settle cases

1. Based on a case acceptance report of a judge assigned to accept a case, the chief justice shall decide to assign a judge to settle the case on the principles of impartiality, objectivity and random choice.

2. Within 3 working days after the date of acceptance of a case, the chief justice shall decide to assign a judge to settle the case.

For a complicated case requiring a prolonged duration of settlement, the chief justice shall assign an alternative judge to ensure trial is conducted within the time limit prescribed in this Law.

3. In the course of settlement of a case, if the assigned judge cannot continue with the assigned duty, the chief judge shall assign another judge to continue the duty. When the trial is underway without an alternative judge, the case shall be retried from the beginning and the retrial shall be notified to involved parties and the same-level procuracy.

Article 128. Rights and obligations of notified persons

1. Within 10 days after receiving a notice, the defendant and persons with related interests and obligations shall submit to the court their written opinions on the claim(s) of the plaintiff and enclosed documents and evidences or on independent claim(s) (if any).

If an extension of the time limit is needed, a notified person shall file an application for extension to the court, clearly stating the reason. If the application for extension is grounded, the court shall give a single extension of not more than 7 days.

2. In case the defendant and persons with related interests and obligations have received a notice but fail to submit their written opinions within the time limit prescribed in Clause 1 of this Article without a plausible reason, the court shall continue settling the case in accordance with this Law.

3. The defendant and persons with related interests and obligations may request the court to let them take note of or copy the lawsuit petition and enclosed documents and evidences (if any), except documents and evidences specified in Clause 2, Article 96 of this Law.

4. Within 10 days after receiving a notice, the procuracy shall assign a procurator and an alternative procurator (if any) to perform the duty and notify such to the court.

Article 129. Right of persons with related interests and obligations to make independent claims

1. In case persons with related interests and obligations do not participate in the procedures on the side of the plaintiff or the defendant, they may make independent claims when the following conditions are satisfied:

a/ The settlement of the case is related to their interests and obligations;

b/ Their independent claims are related to the case being settled;

c/ Their independent claims are settled in the same case, thereby making the settlement of the case more accurate and quicker.

2. Persons with related interests and obligations may make independent claims until the opening of a session to check the handover of, access to, and disclosure of evidences and dialogues.

Procedures for making independent claims must comply with this Law’s provisions on procedures for initiating lawsuits by plaintiffs.