Chương X Luật tố tụng hành chính 2015: Thủ tục đối thoại và chuẩn bị xét xử

Chapter X

PROCEDURES FOR DIALOGUES AND TRIAL PREPARATION

Article 130. Time limit for trial preparation

The time limit for preparation for trial of a case, except cases to be tried according to summary procedures, cases involving foreign elements and cases involving lawsuits over voter lists, is prescribed as follows:

1. Four months after the date of case acceptance, for the case specified at Point a, Clause 2, Article 116 of this Law;

2. Two months after the date of case acceptance, for the case specified at Point b, Clause 2, Article 116 of this Law;

3. For complicated cases or cases encountering objective obstacles, the chief justice may decide to extend the time limit for trial preparation only once for not more than 2 months, for the case specified in Clause 1 of this Article, and for not more than 1 month, for the case specified in Clause 2 of this Article;

4. In case of a decision to suspend the settlement of a case, the time limit for trial preparation shall be recounted from the date the court’s decision to resume the settlement of the case takes legal effect.

Article 131. Duties and powers of judges in the stage of trial preparation

1. To make the case file.

2. To request involved parties to additionally submit documents, evidences and written opinions with regard to the plaintiff’s claims to the court; to request the plaintiff to submit copies of documents and evidences to the court for sending to involved parties.

3. To verify and collect documents and evidences in accordance with this Law.

4. To decide on the application, change or cancellation of provisional urgent measures.

5. To hold a session to check the handover of, access to, and disclose of evidences and dialogues in accordance with this Law, except for cases settled according to summary procedures and cases involving lawsuits over voter lists.

6. To decide to:

a/ Bring the case to trial;

b/ Suspend the settlement of the case; or,

c/ Terminate the settlement of the case.

Article 132. Making of administrative case files

1. An administrative case file must comprise a lawsuit petition and documents and evidences of involves parties and other procedure participants; documents and evidences related to the case which are collected by the court; and procedural documents of the court and procuracy on the settlement of the administrative case.

2. Documents and papers in an administrative case file must have their entry numbers, be arranged by date of entry and kept, managed and used in accordance with law.

Article 133. Handover of documents and evidences

1. Time limits for handing over documents .and evidences must comply with Clause 4. Article 83 of this Law.

2. In case an involved party hands over documents and evidences previously required by the court after the issuance of a decision to bring the case to trial according to first-instance procedures, such involved party shall state the reason for late handover. For documents and evidences not previously required by the court to be handed over by the involved party or documents and evidences which the involved party cannot know in the course of settlement of the case according to first-instance procedures, the involved party may hand over or present them at the first-instance court hearing.

Article 134. Principles of dialogue

1. Within the time limit for first-instance trial preparation, the court shall hold dialogues for involved parties to reach agreement on the settlement of the case, except for cases in which dialogues cannot be held, cases involving lawsuits over voter lists or cases tried according to summary procedures specified in Articles 135, 198 and 246 of this Law.

2. A dialogue shall be held on the following principles:

a/ Publicity, democracy and respect for opinions of involved parties are guaranteed;

b/ It is prohibited to force involved parties to settle the administrative case against their will;

c/ Contents and results of the successful dialogue between involved parties are not contrary to law and social ethics.

Article 135. Administrative cases for which dialogues cannot be held

1. Plaintiffs, defendants and persons with related interests and obligations who have been summoned twice by the court are intentionally absent.

2. Involved parties are unable to participate in the dialogue for plausible reasons.

3. Involved parties agree to request the dialogue not to be held.

Article 136. Notification of sessions to check the handover of, access to, and disclosure of evidences and dialogues

1. Before holding a session to check the handover of, access to, and disclosure of evidences and dialogues between involved parties, the judge shall notify involved parties, their lawful representatives and defense counsels of their lawful rights and interests of the time, venue and contents of the session.

2. For an administrative case for which dialogues cannot be held under Article 135 of this Law, the judge shall hold a session to check the handover of, access to, and disclosure of evidences without having to hold a dialogue.

Article 137. Participants in sessions to check the handover of, access to, and disclosure of evidences and dialogues

1. Participants in a session include:

a/ Judge who chairs the session;

b/ Secretary who makes the session minutes;

c/ Involved parties or their lawful representatives;

d/ Defense counsels of lawful rights and interests of involved parties (if any);

dd/ Interpreter(s) (if any).

2. When necessary, the judge may request related agencies, organizations and individuals to participate in the session.

3. For a case involving many parties, some of them are absent, and if the present involved parties still agree on holding a session which will not affect rights and obligations of the absent ones, the judge shall proceed the session between the present involved parties. If involved parties request postponement of the session so that all involved parties of the case can be present at the session, the judge shall postpone the session and notify in writing the involved parties of the postponement and resumption of the session.

Article 138. Proceedings of sessions to check the handover of, access to, and disclosure of evidences and dialogues

1. Before opening a session, the session secretary shall report to the judge on the presence or absence of session participants notified by the court. The judge chairing the session shall check the presence and personal identifications of present persons again and notify involved parties of their rights and obligations in accordance with this Law.

2. When checking the handover of, access to, and disclosure of evidences, the judge shall disclose documents and evidences included in the case file and question involved parties about the following matters:

a/ Requirements and scope of lawsuit institution, and modification, supplementation, change or withdrawal of lawsuit institution claims; matters already agreed by involved parties, and those not yet agreed and requested to be settled by the court;

b/ Handover of documents and evidences to the court and sending of documents and evidences to other involved parties;

c/ Addition of documents and evidences and request for the court’s collection of documents and evidences and summoning of other involved parties, witnesses and other procedure participants at the court hearing;

d/ Other matters which involved parties find necessary.

3. After involved parties fully present their opinions, the judge shall consider those opinions and settle requests of involved parties regarding the matters specified in Clause 2 of this Article. The court shall notify session results to the absent involved parties.

4. After completely checking the handover of, access to, and disclosure of evidences under Clause 2 of this Article, the judge shall carry out procedures for a dialogue as follows:

a/ The judge shall inform involved parties of regulations relevant to the settlement of the case so that they can relate such regulations to their rights and obligations, and analyze legal consequences of the dialogue so that involved parties can voluntarily reach agreement on the settlement of the case;

b/ The plaintiff shall additionally explain his/her claim to institute the lawsuit and grounds to defend such claim and present his/her viewpoint on the way to settle the case (if any);

c/ The defendant shall additionally explain his/her opinions on the claim of the plaintiff, grounds for issuance of the administrative decision or performance of the administrative act over which a lawsuit is instituted, and propose the way to settle the case (if any);

d/ Persons with interests and obligations related to the case shall additionally explain or give their opinions on settlement of parts of the case related to them (if any);

dd/ Defense counsels of lawful rights and interests of involved parties or other participants in the dialogue session (if any) give their opinions;

e/ On a case-by-case basis, the judge shall request involved parties to identify relevant legal or administrative documents in order to assess the legality of the administrative decision or act over which the lawsuit is instituted, and concurrently check the legal effect of such documents. The judge may analyze contents of relevant legal or administrative documents so that involved parties may be properly aware of such documents before making their choices and decisions on the settlement of the case;

g/ After involved parties fully present their opinions, the judge shall identify matters already agreed and those not yet agreed by involved parties and request them to additionally explain unclear matters or matters not yet agreed;

h/ The judge shall make conclusions on matters already agreed and those not yet agreed by involved parties.

5. The secretary of a session to check the handover of, access to, and disclosure of evidences and dialogues shall make a minutes recording proceedings of the session.

Article 139. Minutes of sessions to check the handover of, access to, and disclosure of evidences; minutes of dialogues

1. The minutes of a session to check the handover of, access to, and disclosure of evidences must have the following details:

a/ Date of the session;

b/ Venue of the session;

c/ Session participants;

d/ Opinions of involved parties or their lawful representatives and defense counsels of their lawful rights and interests on the matters specified in Clause 2, Article 138 of this Law;

dd/ Other contents;

e/ The judge’s conclusions on acceptance or non-acceptance of requests of involved parties.

2. The minutes of a dialogue must have the following details:

a/ The contents specified at Points a, b and c, Clause 1 of this Article;

b/ Opinions of involved parties or their lawful representatives and defense counsels of their lawful rights and interests;

c/ Matters already agreed and those not yet agreed by involved parties.

3. In cases specified in Article 135 of this Law in which dialogues cannot be held, minutes shall be made under Clause I of this Article.

4. A minutes must bear all signatures or fingerprints of session participants, of the session secretary who makes it and of the judge chairing the session. Session participants may access the session minutes right after the session is concluded, request the recording of modifications or supplementations in the minutes and give their signatures or fingerprints for certification.

Article 140. Handling of dialogue results

1. After the dialogue, if the plaintiff still retains the lawsuit institution claim, the defendant still upholds the decision or act over which the lawsuit is instituted and persons with related interests and obligations that have independent claims still retain their claims, the judge shall carry out procedures for opening a court hearing to try the case.

2. After the dialogue, if the plaint! ff voluntarily withdraws the lawsuit petition, the judge shall make a written record of such voluntary withdrawal and issue a decision to terminate the settlement of the case with regard to the claim of the plaintiff. The plaintiff may reinstitute the lawsuit if the statute of limitations for lawsuit institution has not yet expired.

3. After the dialogue, if the defendant commits to modifying, supplementing, replacing or annulling the administrative decision or terminating the administrative act over which the lawsuit is instituted and the plaintiff commits to withdrawing the lawsuit petition, the court shall make a written record of such commitments of involved parties. Within 7 days after the written record is made, the defendant shall send to the court the new administrative decision or notify the termination of the administrative act over which the lawsuit is instituted and the plaintiff shall send to the court the document on withdrawal of the lawsuit petition. Upon the expiration of that time limit, if either of these involved parties fails to realize his/her/its commitment, the judge shall carry out procedures for opening a court hearing to try the case.

If receiving the new administrative decision or document on withdrawal of the lawsuit petition, the court shall notify such to other involved parties. Within 7 days after being notified by the court, if involved parties have no objection, the judge shall issue a decision to recognize the successful dialogue result and terminate the settlement of the case and promptly send it to involved parties and the same-level procuracy. This decision takes effect for execution immediately and shall not be appealed or protested against according to appellate procedures. In case there is a ground to believe that the involved parties have reached an agreement and made their commitments due to a mistake, fraudulence or intimidation or in contravention of law or social ethics, the court’s decision may be reviewed according to cassation procedures.

Article 141. Suspension of the settlement of cases

1. The court shall decide to suspend the settlement of a case when:

a/ An involved party being an individual dies or an agency or organization is dissolved or declared bankrupt without any individual, agency or organization to inherit his/her/its procedural rights and obligations;

b/ An involved party has lost his/her civil act capacity or is a minor whose at-law representative is not yet identified;

c/ An involved party is absent for a plausible reason upon the expiration of the time limit for trial preparation, except where the case may be tried in the absence of such involved party;

d/ It is necessary to await results of settlement by other agencies or settlement results of other related cases;

dd/ It is necessary to await results of additional examination or re-examination; results of performance of judicial mandate, mandated collection of evidences, or provision by agencies or organizations of documents and evidences at its request for the settlement of the case;

e/ It is necessary to await results of handling of legal documents related to the settlement of the case showing signs of contravention of the Constitution, a law or legal document of a superior state agency which is recommended in writing by the court to be amended, supplemented or annulled by a competent agency.

2. A decision to suspend the settlement of the case may be appealed or protested against according to appellate procedures.

Article 142. Consequences of the suspension of settlement of cases

1. The court may not delete the name of an administrative case suspended from settlement from the case acceptance book but shall only note down in this book the serial number and date of the decision on suspension of the settlement of such case.

2. When the reason for suspension specified in Article 141 of this Law no longer exists, the court shall issue a decision on resumption of the settlement of the case and cancel the suspension decision.

3. Legal cost advances and fees paid by involved parties shall be handled when the court resumes the settlement of the case.

4. During the period of suspension of the settlement of a case, the judge assigned to settle the case shall still be responsible for the case settlement.

After the decision on suspension of the settlement of the case is issued under Clause 1, Article 141 of this Law, the judge assigned to settle the case shall monitor and urge agencies, organizations or individuals to redress the reason for suspension as soon as possible in order to promptly bring the case to settlement.

Article 143. Termination of settlement of cases

1. The court shall decide to terminate the settlement of a case when:

a/ The plaintiff being an individual dies while his/her rights and obligations are not inherited: or the plaintiff being an agency or organization is dissolved or declared bankrupt without any agency, organization or individual inheriting its procedural rights and obligations;

b/ The plaintiff withdraws the lawsuit petition in case there is no independent claim of persons with related interests and obligations. In case there is an independent claim of a person with related interests and obligations who retains his/her independent claim, the court shall issue a decision to suspend the settlement of the case with regard to the withdrawn claim of the plaintiff;

c/ The plaintiff withdraws the lawsuit petition and persons with related interests and obligations withdraw independent claims;

d/ The plaintiff fails to make an advance for property valuation expenses and other procedural expenses prescribed by law.

In case a person with related interests and obligations makes an independent claim without making an advance for property valuation expenses and other procedural expenses in accordance with this Law, the court shall terminate the settlement of such independent claim;

dd/ The plaintiff is absent though he/she has been duly summoned twice, unless he/she/ it requests the court to try the case in his/her/its absence or in case of a force majeure event or an objective obstacle;

e/ The defendant annuls the administrative decision, disciplinary decision on dismissal or decision on settlement of a complaint about a decision on handling of a competition case, or terminates the administrative act over which the lawsuit is instituted, and the plaintiff agrees to withdraw the lawsuit petition while persons with related interests and obligations who have made independent claims agree to withdraw their claims;

g/ The statute of limitations for lawsuit institution has expired;

h/ The cases specified in Clause 1, Article 123 of this Law in which the court has accepted the case.

2. Upon the issuance of a decision to terminate the settlement of a case, the court shall return the lawsuit petition, documents and evidences to involved parties if they so request.

3. Decisions on termination of the settlement of cases may be appealed or protested against according to appellate procedures.

Article 144. Consequences of the termination of settlement of cases

1. When a decision on termination of settlement of a case is issued, involved parties may not institute a lawsuit requesting the court to resettle this case if the subsequent lawsuit does not bring any difference from the previous one regarding the plaintiff, defendant and disputed legal relation, except the cases subject to termination under Points b, c and e, Clause 1, Article 123, and Points b and dd, Clause 1, Article 143, of this Law and other cases specified by law.

2. Legal cost advances and fees paid by involved parties shall be handled in accordance with the law on legal cost and court fee.

Article 145. Competence to issue decisions on suspension, resumption or termination of the settlement of cases

1. A judge assigned to settle a case may issue a decision on suspension, resumption or termination of the settlement of such case.

2. Within 3 working days after the judge issues a decision specified in Clause 1 of this Article, the court shall send such decision to involved parties and the same-level procuracy.

Article 146. Decisions to bring cases to trial

1. A decision to bring a case to trial must have the following principal details:

a/ Date and venue of opening the court hearing;

b/ Public or behind-closed-door trial;

c/ Names and addresses of procedure participants;

d/ Contents of the lawsuit;

dd/ Full names of judges, people’s assessors, court clerk and procurators, and of alternative judges, people’s assessors, court clerk and procurators (if any).

2. A decision to bring a case to trial shall be sent to involved parties and the same-level procuracy immediately after it is issued.

Article 147. Sending of case files to the procuracy

The court shall send case files together with decisions to bring cases to trial to the same- level procuracy for study. Within 15 days after receiving a case file, the procuracy shall return it to the court.