Chương VI Luật tố tụng hành chính 2015: Chứng minh và chứng cứ

Chapter VI

PROVING AND EVIDENCES

Article 78. Burden of proof in administrative procedures

1. Plaintiffs are obliged to provide copies of administrative decisions, disciplinary decisions on dismissal, decisions on settlement of complaints about decisions on handling of competition cases, or complaint settlement decisions (if any) and furnish other evidences to defend their lawful rights and interests. In case of failure to do so, they shall clearly state the reason.

2. Defendants are obliged to provide courts with complaint settlement dossiers (if any) and copies of documents based on which administrative decisions, disciplinary decisions on dismissal or decisions on settlement of complaints about decisions on handling of competition cases have been issued or administrative acts have been taken.

3. Persons with related interests and obligations are obliged to provide evidences to defend their lawful rights and interests.

Article 79. Circumstances and facts which are not required to be proved

1. The following circumstances and facts are not required to be proved:

a/ Those which are conspicuous to everyone’s knowledge and accepted by the court;

b/ Those which have been identified in legally effective court judgments or rulings;

c/ Those which have been documented and duly notarized or authenticated. In case of suspicion about the authenticity of circumstances or facts in such document, a judge may request the agency, organization or individual that has provided or handed it to produce the original document.

2. If an involved party acknowledges or does not object to circumstances, facts or documents invoked by the other involved party, the latter is not required to prove them. If an involved party has a representative to participate in the procedures, this representative’s acknowledgement or non-objection shall be regarded as such involved party’s acknowledgement if the representation does not fall beyond the scope of representation.

Article 80. Evidences

Evidences in an administrative case include factual things which are handed or produced to the court by involved parties or other agencies, organizations or individuals in the process of conducting procedures or collected by the court according to the order and procedures prescribed in this Law and used by the court as grounds for determining whether factual circumstances of the case as well as claims or objections of involved parties are grounded and lawful.

Article 81. Evidence sources

Evidences are collected from the following sources:

1. Readable, audible or visible materials, or electronic data;

2. Exhibits;

3. Testimonies of involved parties;

4. Testimonies of witnesses;

5. Expert examination conclusions;

6. Written records of on-site appraisal results;

7. Asset valuation and price appraisal results;

8. Written certifications of legal facts or acts made by responsible persons;

9. Notarized or authenticated documents;

10. Other sources specified by law.

Article 82. Identification of evidences

1. Readable materials shall be regarded as evidences if they are originals or lawfully notarized or authenticated copies or provided and certified by competent agencies or organizations.

2. Audible or visible materials shall be regarded as evidences if they are presented by persons possessing them together with documents certifying their origins if such persons have made audio or visual recordings themselves, or written certifications by those that have provided them to presenters of their origins, or documents on events related to such audio or visual recording.

3. Electronic data messages expressed in the form of exchange of e-data, e-documents, emails, telegrams, facsimiles and other similar forms prescribed by the law on e-transactions.

4. Exhibits regarded as evidences must be the original and related to cases or matters being settled.

5. Testimonies of involved parties or witnesses shall be regarded as evidences if they are recorded in writing or in audio or video tapes or disks or other sound or image storage media as prescribed in Clause 2 of this Article or are orally made at court hearings.

6. Expert examination conclusions shall be regarded as evidences if the expert examination is conducted according to procedures prescribed by law.

7. Written records of on-site appraisal results shall be regarded as evidences if the appraisal is conducted according to procedures prescribed by law.

8. Asset valuation and price appraisal results shall be regarded as evidences if the valuation or appraisal is conducted according to procedures prescribed by law.

9. Documents certifying legal events or acts made on the spot by responsible persons shall be regarded as evidences if they have been made according to procedures prescribed by law.

10. Other sources identified as evidence sources in accordance with law.

Article 83. Handover of documents and evidences

1. In the course of settlement of an administrative case by the court, involved parties have the right and obligation to hand over documents and evidences to the court. If they fail to hand over documents and evidences or fail to hand over all documents and evidences to the requesting court without a plausible reason, the court shall base itself on the handed documents and evidences and those collected by itself under Clause 2, Article 84 of this Law to settle the case.

2. The handover of documents and evidences by involved parties to the court shall be recorded in writing. The written record must clearly indicate appellations, forms, contents and features of documents and evidences; number of copies and number of pages of documents and evidences and time of receipt; signatures or fingerprints of deliverers and recipients and seal of the court. A written record shall be made in two copies, one shall be included in the administrative case file and the other handed to the involved party that has handed over the documents and evidences.

3. A document or an evidence handed over by an involved party to the court which is in an ethnic minority language or a foreign language shall be enclosed with its duly notarized or authenticated Vietnamese translation.

4. The time limit for handing over documents and evidences shall be prescribed by a judge assigned to settle a case but must not exceed the time limit for preparation for trial according to first-instance procedures prescribed in Article 130 of this Law.

5. In case handed documents and evidences do not constitute sufficient grounds for the settlement of the case, the judge shall request involved parties to additionally hand over documents and evidences.

6. In case involved parties are unable to collect documents and evidences by themselves and request the collection of such documents and evidences, or when deeming it necessary, the court may verify and collect documents and evidences by itself or entrust the verification and collection of documents and evidences for clarifying circumstances of the case.

Article 84. Verification and collection of documents and evidences

1. Involved parties may collect evidences by themselves with the following measures:

a/ Collecting readable, audible or visible materials, or electronic data messages;

b/ Collecting exhibits;

c/ Identifying witnesses and taking certifications by witnesses;

d/ Requesting agencies, organizations or individuals to permit copying of or provide documents related to the settlement of the case which are currently kept or managed by the latter;

dd/ Requesting commune-level People’s Committees to authenticate signatures of witnesses;

e/ Requesting the court to collect documents and evidences if they are unable to do so;

g/ Requesting the court to issue decisions to solicit expert examination or valuation of assets;

h/ Requesting agencies, organizations or individuals to perform other jobs in accordance with law.

2. In the cases specified by this Law, a judge may take one or several of the following measures to collect documents and evidences:

a/ Taking testimonies of involved parties and witnesses;

b/ Holding confrontations between involved parties and between involved parties and witnesses;

c/ Conducting on-site inspection and appraisal; d/ Soliciting expert examination;

dd/ Deciding on asset valuation;

e/ Entrusting the collection and verification of documents and evidences;

g/ Requesting agencies, organizations or individuals to provide readable, audible or visible documents or other exhibits related to the settlement of the case.

h/ Other measures prescribed by this Law.

3. When taking a measure specified at Point c, d, dd, e or g, Clause 2 of this Article, a judge shall issue a decision thereon, clearly stating the reason for application of the measure and requirement of the court.

4. At the stage of trial according to cassation or reopening procedures, verifiers may take the measures to collect evidences specified at Points a and g, Clause 2 of this Article.

When a verifier applies a measure specified at Point g, Clause 2 of this Article, the court shall issue a decision, clearly stating the reason for application of the measure and its requirement.

5. Within 3 working days after collecting documents and evidences, the court shall notify such to involved parties so that they can exercise their rights and perform their obligations.

6. The procuracy may request the court to verify and collect documents and evidences in the course of settlement of a case. In case of filing a protest against a court judgment or ruling according to appellate, cassation or reopening procedures, the procuracy may verily and collect documents and evidences to assure the protest filing.

Article 85. Taking of testimonies of involved parties

1. Judges shall take testimonies of involved parties only when the latter have not yet made written testimonies or contents of involved parties’ testimonies are inadequate or unclear. Involved parties shall write their testimonies by themselves and give their signatures thereon. In case involved parties are unable to write testimonies, judges shall take testimonies. The taking of testimonies of involved parties must only focus on circumstances inadequately or unclearly testified by involved parties. Judges themselves or court clerks shall record testimonies of involved parties in minutes. Judges shall take testimonies of involved parties in the courthouse or outside the courthouse when necessary.

2. Minutes recording testimonies of involved parties shall be read or heard and signed or fingerprinted by these involved parties themselves. Involved parties may request modifications or supplementations to be written in the minutes and then sign or fingerprint for certification.

A minutes shall be signed by the person who takes the testimonies and the minutes recorder and appended with the seal of the court. For minutes made in loose pages, each page shall be signed and adjoining pages appended with a seal. For minutes recording testimonies of involved parties made outside the courthouse, the testimony taking shall be certified by witnesses or by commune-level People’s Committees or police offices or by agencies or organizations in which these minutes are made. For involved parties who are illiterate, there must be witnesses chosen by them.

3. The taking of testimonies of involved parties who are aged under 18 years or persons with restricted civil act capacity or persons having difficulties in cognizing or controlling their acts shall be conducted in the presence of their at-law representatives, managers or caretakers.

Article 86. Taking of testimonies of witnesses

1. At the request of involved parties or when finding it necessary, judges shall take testimonies of witnesses.

2. Procedures for taking testimonies of witnesses are the same as those for taking testimonies of involved parties specified in Article 85 of this Law.

Article 87. Confrontation

1. At the request of involved parties or when finding contradictions in testimonies of involved parties or witnesses, judges shall hold a confrontation between involved parties, between involved parties and witnesses, or between witnesses.

2. The confrontation must be recorded in writing with the signatures or fingerprints of confrontation participants.

Article 88. On-site inspection and appraisal

1. Judges shall conduct on-site inspection and appraisal in the presence of representatives of commune-level People’s Committees or police offices, or agencies or organizations in which exist objects to be inspected or appraised. On-site inspection and appraisal shall be notified in advance to involved parties so that they can know and witness such inspection and appraisal.

2. On-site inspection and appraisal shall be recorded in minutes. A minutes must clearly state results of inspection and appraisal, clearly describe the scene and bear signatures of persons conducting the inspection and appraisal and signatures or fingerprints of involved parties if they are present, representatives of commune-level People’s Committees or police offices, or agencies or organizations in which exist objects to be inspected or appraised, and other persons invited to participate in the inspection and appraisal. Such a minutes shall be signed and appended with a seal for certification by representatives of commune-level People’s Committees or police offices, or agencies or organizations in which exist objects to be inspected or appraised.

3. Any acts obstructing the on-spot inspection and appraisal are prohibited.

4. Judges may request commune-level People’s Committees or police offices in which on-spot inspection and appraisal are conducted to assist them in case there are acts obstructing the on-spot inspection and appraisal.

Article 89. Solicitation of, or request for, expert examination

1. Involved parties may request the court to solicit expert examination or request expert examination by themselves after requesting the court to solicit expert examination but have their requests are rejected by the court. The right to request expert examination shall be exercised before the court issues a decision to bring a case to first-instance trial.

2. At the request of involved parties or when finding it necessary, judges shall issue decisions to solicit expert examination. A decision to solicit expert examination must clearly indicate the name and address of the expert witness, object(s) and matters which need to be examined, and specific requirements that need conclusions of the expert witness.

3. If finding expert examination conclusions unclear, the court shall request the expert witness to explain such conclusions or summon the expert witness to the court hearing to directly present relevant contents at the request of involved parties or when finding it necessary.

4. At the request of involved parties or when finding it necessary, the court shall issue a decision on additional expert examination in case expert examination conclusions are inadequate or unclear or a new problem arises in relation to circumstances of the case on which expert examination conclusions have previously been made.

5. Expert re-examination shall be conducted in case there is a ground to believe that the initial expert examination conclusions are inaccurate or in violation of law or in a special case under a decision of the Procurator General of the Supreme People’s Procuracy or the Chief Justice of the Supreme People’s Court in accordance with the Law on Judicial Examination.

Article 90. Solicitation of expert examination of evidences denounced to be forged

1. In case an evidence is denounced to be forged, the provider of such evidence may withdraw it; if such evidence is not withdrawn, the denouncer may request the court to, or the court may, decide to solicit expert examination under Article 89 of this Law.

2. In case the evidence forgery shows signs of a crime, the court shall transfer it to a competent investigative agency for examination in accordance with the criminal procedure law.

3. Providers of forged evidences shall compensate for damage in accordance with law if the evidence forgery causes damage to others and shall bear examination expenses if the court decides to solicit expert examination.

Article 91. Asset valuation and price appraisal

1. Involved parties may provide asset prices; or reach agreement on asset valuation and provision of asset prices to the court.

2. Involved parties may agree on selection of a price appraisal organization to appraise asset prices and provide price appraisal results to the court.

The asset price appraisal shall be conducted in accordance with the law on asset price appraisal.

3. The court shall issue a decision on asset valuation and form a valuation council in one of the following cases:

a/ At the request of one involved party or involved parties;

b/ Involved parties provide different asset prices or cannot reach agreement on asset prices;

c/ Involved parties do not reach agreement on selection of an asset price appraisal organization;

d/ The plaintiff reaches agreement with a price appraisal organization on appraisal of asset prices higher than market prices in localities where valuated assets exist at the time of valuation for the purpose of seeking illicit profits from state assets, or the defendant reaches agreement with a price appraisal organization on appraisal of asset prices lower than market prices in order to shirk the responsibility to pay compensation to damage sufferers or there is a ground to believe that the price appraisal organization violates law when conducting the appraisal.

4. Order and procedures for forming a valuation council are as follows:

a/ A valuation council formed by the court is composed of its chairman being the representative of the finance agency and its members being representatives of related specialized agencies. Persons who have conducted the procedures in the same case and persons specified in Article 45 of this Law may not join the valuation council.

A valuation council shall conduct the valuation only when all of its members are present. When necessary, a representative of the commune-level People’s Committee of the locality in which exist assets subject to valuation shall be invited to witness the valuation. Involved parties shall be notified in advance of the time and venue of conducting the valuation and may attend and give their opinions on the valuation. The competence to decide on prices of valuated assets rests with the valuation council.

b/ The finance agency and related specialized agencies shall appoint their persons to join the valuation council and create conditions for them to perform their duties. Persons appointed to be members of the valuation council shall take part in the whole process of valuation. In case the finance agency and related specialized agencies fail to appoint their persons to join the valuation council, the court shall request the competent management agency to direct the finance agency and specialized agencies in realizing its request. For persons appointed to join the valuation council who fail to join the council without a plausible reason, the court shall request leaders of their agencies to determine their responsibilities, appoint others as replacements and notify such to the court for continued valuation;

c/ The valuation shall be recorded in minutes, clearly stating opinions of each member and involved parties if they attend. A decision of the valuation council shall be voted for by more than half of its members. Members of the valuation council, involved parties and witnesses shall sign the minutes.

5. The asset revaluation shall be conducted in case there is a ground to believe that the initial valuation results are inaccurate or inconsistent with market prices in the locality where valuated assets exist at the time of settlement of the administrative case.

Article 92. Entrustment of collection of documents and evidences

1. In the course of settlement of an administrative case, the court may issue a decision to entrust another court or a competent agency specified in Clause 4 of this Article to take testimonies of involved parties and witnesses, to conduct on-site inspection and appraisal or asset valuation, or apply other measures to collect documents and evidences and verify circumstances of the case.

2. An entrustment decision must clearly state the names and addresses of the plaintiff and defendant and specific entrusted jobs to collect documents and evidences.

3. A court that receives an entrustment decision shall perform specific entrusted jobs within 30 days after receiving the entrustment decision and notify in writing results to the court that has issued the entrustment decision. If it cannot perform entrusted jobs, it shall notify such in writing, clearly stating the reason to the court that has issued the entrustment decision.

4. In case documents and evidences must be collected abroad, the court shall carry out procedures for entrustment through competent Vietnamese agencies or authorities of foreign countries under treaties to which Vietnam and these foreign countries are contracting members, or on the principles of reciprocity, non-contravention of Vietnamese law and conformity with international law and practices.

5. In case the entrustment cannot be made under Clause 3 or 4 of this Article or the entrustment has been made but the court has received no response, the court shall settle the case based on evidences available in the case file.

Article 93. Request for provision of documents and evidences by agencies, organizations or individuals

1. Involved parties may request agencies, organizations or individuals to provide documents and evidences. When so requesting, involved parties shall make written requests clearly specifying documents and evidences to be provided, reason for the provision, full names and addresses of individuals or names and addresses of agencies or organizations that are managing or keeping documents and evidences to be provided.

Agencies, organizations or individuals shall provide documents and evidences to involved parties within 15 days after receiving the latter’s request. In case they cannot provide documents and evidences, they shall reply in writing, clearly stating the reason.

2. In case involved parties have taken all necessary measures but still fail to collect evidences by themselves, they may request the court to issue a decision to request agencies, organizations or individuals that are keeping or managing documents and evidences to provide them or do so themselves in order to assure the settlement of the administrative case.

Involved parties that request the court to collect documents and evidences shall make written requests clearly indicating matters to be proved; evidences to be collected; reason(s) why they cannot collect documents and evidences by themselves; full names and addresses of individuals, and names and addresses of agencies or organizations that are managing or keeping documents and evidences which need to be collected.

3. At the request of involved parties or when finding it necessary, the court shall request agencies, organizations or individuals to provide documents and evidences they are managing or keeping.

Agencies, organizations or individuals that are managing or keeping documents and evidences shall fully provide such documents and evidences as requested by the court within 15 days after receiving a request. In case they fail to do so upon the expiration of that time limit, the agencies, organizations or individuals shall reply in writing to the court, clearly stating the reason. Agencies, organizations or individuals that fail to do so without a plausible reason shall be handled in accordance with this Law and relevant laws. The handling of these agencies, organizations or individuals does not exempt them from the obligation to provide documents and evidences to the court.

4. In case the procuracy requests the provision of documents and evidences, agencies, organizations or individuals shall provide such documents and evidences under Clause 3 of this Article.

Article 94. Preservation of documents and evidences

1. The preservation of documents and evidences which have been handed over to the court rests with the court.

2. The preservation of documents and evidences which cannot be handed over to the court rests with their current keepers.

3. When necessary to hand over documents and evidences to third parties for preservation, judges shall issue decisions and make minutes of the handover of such documents and evidences to these parties for preservation. Persons undertaking the preservation shall sign the minutes, enjoy remuneration and take responsibility for the preservation of documents and evidences in accordance with law.

4. It is prohibited to destroy documents and evidences.

Article 95. Assessment of evidences

1. The assessment of evidences must be objective, comprehensive, adequate and accurate.

2. The court shall assess evidences one by one, the link between evidences and confirm the legality, relevance and proving value of every evidences.

Article 96. Disclosure and use of evidences

1. Every evidence shall be publicly and equally disclosed and used, except the case specified in Clause 2 of this Article.

2. The court shall not publicly disclose evidences pertaining state secrets, national fine customs and traditions, professional secrets, business secrets and privacy secrets at the legitimate request of involved parties but shall notify involved parties of evidences which may not be disclosed.

3. Procedure-conducting persons and procedure participants shall keep evidences confidential in the case specified in Clause 2 of this Article in accordance with law.

Article 97. Protection of evidences

1. In case an evidence is being destroyed or in danger of being destroyed or is hard to be collected in the future, involved parties may request in writing the court to decide on application of all necessary measures to preserve the evidence. The court may decide to apply one or several of the measures of sealing, keeping, photographing, audio-recording, video-recording, restoration, examination, minutes making and others.

2. In case a witness is intimidated, controlled or bought off for the purpose of not providing evidences or providing untruthful evidences, the court may decide to force the person who has committed the act of intimidating, controlling or buying off the witness to terminate his/her act. In case such act shows signs of a crime, the court shall request the procuracy to examine penal liability of such person.

Article 98. Right to access or exchange documents and evidences

1. Involved parties may know, take note of, copy or exchange documents and evidences handed over by other involved parties to the court or collected by the court, except those specified in Clause 2, Article 96 of this Law.

2. Involved parties that hand over documents and evidences to the court shall notify other involved parties of the handover within 5 working days so that the latter can contact the court to exercise the right to access such documents and evidences under Clause 1 of this Article.

3. Within 5 working days after collecting documents and evidences, the court shall notify involved parties of the collection so that they can exercise the right to access such documents and evidences under Clause 1 of this Article