Chương XIII Luật tố tụng hành chính 2015: Thủ tục phúc thẩm

Chapter XIII

APPELLATE PROCEDURES

Section 1. GENERAL PROVISIONS ON APPELLATE PROCEDURES

Article 203. Nature of appellate trial

Appellate trial means the retrial by an appellate court of a case with the first-instance court’s judgment or ruling having not yet taken legal effect and being appealed or protested against.

Article 204. Persons having the right to appeal

Involved parties or their lawful representatives have the right to appeal against judgments or decisions of the first-instance court to suspend or terminate the settlement of cases in order to request the appellate court to conduct retrial according to appellate procedures.

Article 205. Appeal petition

1. When exercising the right to appeal, an appellant shall make an appeal petition which must contain the following principal details:

a/ Date of making;

b/ Full name, address, telephone and facsimile numbers and email address (if any) of the appellant;

c/ The appealed part or whole of the court judgment or ruling of the first-instance court which has not yet taken legal effect;

d/ The reason for filing the appeal and the appellant’s claim;

dd/ Signature or fingerprint of the appellant.

2. An appellant who has the full administrative procedure act capacity may make an appeal petition by himself/herself. The items of name and address of the appellant in the petition shall be filled with the full name and address of the involved party that files the appeal. In the bottom of the appeal petition, the appellant shall give his/her signature or fingerprint.

3. If an appellant specified in Clause 2 of this Article does not file an appeal by himself/ herself, he/she may authorize another person to represent him/her in filing an appeal. The items of name and address of the appellant in the petition shall be filled with the full name and address of the authorized representative to file the appeal; full name and address of the authorizing involved party and power of attorney. In the bottom of the appeal petition, the authorized representative shall give his/her signature or fingerprint.

4. The at-law representative of an involved party being an agency or organization may file an appeal by himself/herself. The items of name and address of the appellant in the appeal petition shall be filled with the name and address of the involved party being an agency or organization; full name and position of the at-law representative of the involved party. In the bottom of the appeal petition, the at-law representative shall give his/her signature and append the seal of the agency or organization. In case the appellant is an enterprise, the use of its seal must comply with the Law on Enterprises.

In case the at-law representative of an involved party being an agency or organization authorizes another person to represent such agency or organization in filing an appeal, the items of name and address of the appellant in the appeal petition shall be filled with the full name and address of the authorized representative filing the appeal; name and address of the involved party being the authorizing agency or organization; full name and position of the at-law representative of the involved party being such agency or organization and power of attorney. In the bottom of the appeal petition, the authorized representative shall give his/her signature or fingerprint.

5. The at-law representative of an invoked party being a minor or a person who has lost the civil act capacity may file an appeal petition by himself/herself. The items of name and address of the appellant in the appeal petition shall be filled with the full name and address of the at-law representative; full name and address of the involved party being a minor or a person who has lost the civil act capacity. In the bottom of the appeal petition, the appellant shall give his/her signature or fingerprint.

In case the at-law representative of an involved party authorizes another person to represent him/her in filing an appeal, the items of name and address of the appellant in the appeal petition shall be filled with the full name and address of the authorized representative and power of attorney; full name and address of the at-law representative of the authorizing involved party; full name and address of the involved party being a minor or a person who has lost the civil act capacity. In the bottom of the appeal petition, the authorized representative shall give his/her signature or fingerprint.

6. The authorization prescribed in Clauses 3. 4 and 5 of this Article shall be made in writing and lawfully notarized or authenticated, except where the power of attorney is made at the court to the witness of a judge or a person assigned by the chief justice of the court. A power of attorney must state that the involved party authorizes an authorized representative to file an appeal against the first-instance court’s judgment or ruling on suspension or termination of the settlement of the case.

7. An appeal petition shall be filed with the first-instance court which has made the judgment or ruling which is appealed against. The appeal petition shall be enclosed with additional documents and evidences (if any) to prove that the appeal is grounded and lawful.

In case the appeal petition is filed with the appellate court, the appellate court shall transfer the petition to the first-instance court for carrying out necessary procedures under Article 216 of this Law.

Article 206. Time limit for filing an appeal

1. The time limit for filing an appeal against the first-instance court’s judgment is 15 days counting from the date of judgment pronouncement; for involved parties that are absent from the court hearing or when the judgment is pronounced for a plausible reason, the time limit for filing an appeal shall be counted from the date the judgment is handed over to them or publicly posted up.

For involved parties that have participated in the court hearing but are absent when the court pronounces the judgment without a plausible reason, the time limit for filing an appeal shall be counted from the date of judgment pronouncement.

2. The time limit for filing an appeal against the first-instance court’s ruling on suspension or termination of the settlement of a case is 7 days counting from the date the person having the right to appeal receives such ruling or the date such ruling is publicly posted up at the head office of the commune-level People’s Committee of locality where he/she resides or is based in case the person having the right to appeal is an agency or organization.

3. In case the appeal petition is sent by post, the appeal date is the date postmarked on the envelope by the sending post service provider. In case the appellant is detained or held in custody, the appeal date is the date of filing the appeal petition as certified by the competent person of the detention camp or custody house.

Article 207. Examination of appeal petitions

1. After receiving an appeal petition, the first-instance court shall examine its validity under Article 205 of this Law.

2. In case an appeal petition is filed after the prescribed time limit, the first-instance court shall request the appellant to clearly state the reason and produce documents and evidences (if any) to prove that the reason for overdue filing of the appeal petition is plausible.

3. In case an appeal petition is made at variance with Article 205 of this Law. the first- instance court shall request the appellant to re-make, modify or supplement it within 5 working days after receiving the request of the court.

4. The court shall return an appeal petition in the following cases:

a/ The appellant has no right to appeal;

b/ The appellant fails to re-make, modify or supplement the appeal petition despite having received a request of the court under Clause 3 of this Article;

c/ The case specified in Clause 2, Article 209 of this Law.

Article 208. Overdue appeals and examination thereof

1. An appeal filed after the expiration of the time limit prescribed in Article 206 of this Law is considered overdue. After receiving an overdue appeal petition, the first-instance court shall forward the petition .and the appellant’s written explanation about the reason for overdue filing, documents and evidences (if any) to the appellate court.

2. Within 10 days after receiving an overdue appeal petition and enclosed documents and evidences forwarded by the first-instance court, the appellate court shall form a panel consisting of 3 judges to examine the overdue appeal. A session to examine an overdue appeal shall be attended by the procurator of the same-level procuracy and the person filing the overdue appeal. In case the procurator and the person filing the overdue appeal are absent, the court shall still proceed with the session.

3. Based on documents and evidences relevant to the overdue appeal, opinions of the involved party filing the overdue appeal and the representative of the procuracy at the session, the panel for examination of the overdue appeal shall make a decision by majority on acceptance or rejection of the overdue appeal and clearly state the reason in the decision. The appellate court shall send the decision to the person filing the overdue appeal, same-level procuracy and first-instance court. If the appellate court accepts the overdue appeal, it shall request the first- instance court to carry out the procedures prescribed in Articles 209, 210 and 216 of this Law.

Article 209. Notice of payment of legal cost advances for appellate trial

1. After accepting a valid appeal petition, the first-instance court shall notify the appellant thereof so that the latter pays an legal cost advance for appellate trial as required by law, unless the latter is exempt from paying or not required to pay the legal cost advance for appellate trial.

2. Within 10 days after receiving the court’s notice of payment of the legal cost advance for appellate trial, the appellant shall pay such advance and submit the advance receipt to the first-instance court. Past this time limit should the appellant fail to pay the legal cost advance for appellate trial, he/she/it shall be regarded as having waived the appeal.

Upon receiving the receipt of legal cost advance from the appellant, the court shall issue to him/her/it a written certification that it has received the advance receipt.

If the appellant submits to the court the receipt of legal cost advance for appellate trial after the expiration of the time limit of 10 days after receiving the court’s notice of payment of such advance without a plausible reason, the first-instance court shall request the appellant to explain in writing the reason for late submission of the advance receipt within 3 working days for inclusion in the case file. This case shall be handled according to the procedures for examining overdue appeals.

Article 210. Notice of appeal

1. When sending the case file and the appeal petition to the appellate court, the first- instance court shall promptly notify the appeal in writing to the same-level procuracy and parties involved in the appeal.

2. Involved parties who are notified of the appeal may send to the appellate court documents expressing their opinions on the appealed contents. Such documents shall be included in the case file.

Article 211. Protest by procuracy

The chief procurator of the same-level procuracy or immediate superior level may file a protest against the first-instance court’s judgment or ruling on suspension or termination of the settlement of the case in order to request the appellate court to resettle the case according to appellate procedures.

Article 212. Protest decision of procuracy

1. The procuracy’s protest decision shall be made in writing and must contain the following principal details:

a/ Date of issuance and serial number of the decision;

b/ Name of the procuracy issuing the decision;

c/ Protested whole or part of the first-instance court’s judgment or ruling which has not yet taken legal effect;

d/ Reason(s) and ground(s) for the protest and the procuracy’s requests;

dd/ Full name of the person signing the decision and seal of the procuracy issuing the decision.

2. The protest decision shall be immediately sent to the first-instance court that has made the protested judgment or ruling so that such court shall carry out procedures prescribed in Article 216 of this Law. The protest decision shall be enclosed with additional documents and evidences (if any) to prove that the procuracy’s protest is grounded and lawful.

Article 213. Time limit for filing a protest

1. The time limit for filing a protest against the first-instance court’s judgment is 15 days for the same-level procuracy, or 30 days for the immediate superior procuracy, counting from the date of judgment pronouncement.

2. The time limit for filing a protest against the first-instance court’s ruling on suspension or termination of the settlement of the case is 7 days for the same-level procuracy, or 10 days for the immediate superior procuracy, counting from the date the same-level procuracy receives such ruling.

3. If receiving a protest decision of the procuracy after the expiration of the time limit prescribed in Clause 1 or 2 of this Article, the first-instance court shall request the procuracy to explain in writing the reason for late filing.

Article 214. Notice of protest

1. The procuracy issuing a protest decision shall promptly send this decision to parties involved in the protest.

2. Persons who are notified of the protest may send documents expressing their opinions on the protested contents to the appellate court. Such documents shall be included in the case file.

Article 215. Consequences of appeal or protest

1. The appealed or protested part of the first-instance court’s judgment or ruling shall not be executed, unless immediate execution is prescribed by law.

2. The first-instance court’s judgment or ruling or part thereof which is not appealed or protested against will take legal effect on the date of expiration of the time limit for filing an appeal or a protest.

Article 216. Sending of case files, appeals and protests

The first-instance court shall send case files, appeals or protests and enclosed documents and evidences to the appellate court within 5 working days after the time limit for filing protests expires, and upon the expiration of the time limit for filing appeals, appellants shall submit receipts of legal cost advances for appellate trial to the first-instance court.

Article 217. Acceptance of cases for appellate trial

1. Right after receiving a case file, an appeal petition or a protest decision and enclosed documents and evidences, the appellate court shall record it in the case acceptance book.

Within 3 working days after accepting a case, the court shall notify in writing such acceptance to involved parties and the same-level procuracy and announce the acceptance on the court’s e-portal (if any).

2. The chief justice of the appellate court shall form an appellate trial panel and assign a judge to preside over the court hearing and session. .

Article 218. Modification, supplementation or withdrawal of appeals or protests

1. If the time limit for filing appeals prescribed in Article 206 of this Law has not yet expired, an appellant may modify or supplement his/her appeal without being limited to the scope of the initial appeal.

If the time limit for filing protests prescribed in Article 213 of this Law has not yet expired, the protesting procuracy may modify or supplement its protest without being limited to the scope of the initial protest.

2. Before the opening of or during an appellate court hearing, the appellant may modify or supplement his/her appeal and the procuracy that has issued the protest decision may modify or supplement its protest provided that the modification or supplementation must not go beyond the scope of the initial appeal or protest, if the time limit for filing appeals or protests has expired.

3. Before the opening of or during an appellate court hearing, the appellant may withdraw his/her appeal and the procuracy that has issued the protest decision or the immediate superior procuracy may withdraw the protest.

The appellate court shall terminate the appellate trial of part of the case against which the appellant has withdrawn his/her appeal or the procuracy has withdrawn its protest.

The termination of the appellate trial prior to the opening of a court hearing shall be decided by the presiding judge of the court hearing or by the trial panel during a court hearing.

4. The modification, supplementation or withdrawal of an appeal or a protest before the opening of an appellate court hearing shall be made in writing and sent to the appellate court. The appellate court shall notify involved parties of such modification, supplementation or withdrawal, and notify the same-level procuracy of the modification, supplementation or withdrawal of the appeal of the involved party.

The modification, supplementation or withdrawal of an appeal or a protest during a court hearing must be recorded in the minutes of the court hearing.

Article 219. Addition of new evidences

1. Prior to or during an appellate court hearing, the appellant, the procuracy filing the protest, a person with interests and obligations related to the appeal or protest, and the defense counsels of the lawful rights and interests of involved parties may additionally provide new evidences.

2. The appellate court may itself or at the request of an involved party verify newly added evidences. It may entrust the verification of evidences under Article 92 of this Law.

Article 220. Scope of appellate trial

The appellate court shall only review part of the first-instance judgment or ruling which is appealed or protested against or related to the appealed or protested contents.

Article 221. Time limit for appellate trial preparation

Except for cases subject to appellate trial according to summary procedures or cases involving foreign elements, the time limit for appellate trial preparation is as follows:

1. Within 60 days after the date of accepting a case, the judge assigned to preside over the court hearing shall decide to:

a/ Suspend the appellate trial of the case;

b/ Terminate the appellate trial of the case; or,

c/ Bring the case to appellate trial.

2. For complicated cases or due to an objective obstacle, the chief justice of the appellate court may decide to prolong the trial preparation time limit specified in Clause 1 of this Article, provided the prolongation must not exceed 30 days.

3. Within 30 days after the date of issuance of the decision to bring the case to trial, the court shall open an appellate court hearing; in case of a plausible reason, this time limit is 60 days.

4. The decision to bring the case to appellate trial shall be forwarded to the same-level procuracy and persons related to the appeal or protest.

5. In case there is a decision on suspension of the appellate trial of the case, the time limit for appellate trial preparation shall be recounted from the date the court’s decision to resume the settlement of the case takes legal effect.

Article 222. Composition of appellate trial panel

An appellate trial panel is composed of 3 judges, except the case specified in Clause 1, Article 253 of this Law.

Article 223. Presence of appellate trial panel members and court clerks

1. A court hearing may be conducted only when it is attended by all members of the trial panel and the court clerk.

2. In case a judge is absent or can no longer participate in the trial, an alternative judge who attends the court hearing from the beginning may replace the absent judge to participate in the trial of the case.

3. If there is no alternative judge to replace a member of the trial panel under Clause 2 of this Article, the court hearing shall be postponed.

4. In case the court clerk is absent or can no longer participate in the trial without a replacement, the court hearing shall be postponed.

Article 224. Presence of procurators

1. The procurator who is assigned by the chief procurator of the same-level procuracy has the duty to participate in the court hearing. The trial panel shall decide to postpone the court hearing when the procurator is absent in case the procuracy files a protest.

2. In case the procurator is absent or can no longer participate in the trial, an alternative procurator who attends the court hearing from the beginning may replace the absent procurator to participate in the trial of the case.

Article 225. Presence of involved parties, defense counsels of the lawful rights and interests of involved parties, expert witnesses, interpreters and witnesses

1. Upon the first valid summon of the court, the appellant, persons with interests and obligations related to the appeal or protest and defense counsels of their lawful rights and interests shall be present; in case any of them is absent, the trial panel shall postpone the court hearing.

The court shall inform the appellant, persons with interests and obligations related to the appeal or protest and defense counsels of their lawful rights and interests of the postponement of the court hearing.

2. Upon the second valid summon of the court, the appellant, persons with interests and obligations related to the appeal or protest and defense counsels of their lawful rights and interests shall be present. In case any of them is absent not for a force majeure event or an objective obstacle:

a/ If the appellant is absent without a representative participating in the court hearing, he/she shall be regarded as having waived his/her appeal and the court shall issue a decision to terminate the appellate trial of the first-instance court’s judgment or ruling or part thereof which is appealed against by the absent appellant;

b/ If the persons with interests and obligations related to the appeal or protest and the defense counsels of lawful rights and interests of involved parties are absent, the court shall still conduct the trial in their absence.

3. The presence of witnesses, expert witnesses and interpreters at an appellate court hearing must comply with Articles 159, 160 and 161 of this Law.

4. In case a procedure participant requests in writing the court to conduct the trial in his/ her absence, the court shall conduct the appellate court hearing in his/her absence.

Article 226. Cases in which the appellate trial panel is neither required to open a court hearing nor summon involved parties

1. The appellate trial panel is not required to open a court hearing in the following cases:

a/ Reviewing an overdue appeal or protest;

b/ The case mentioned in Clause 2, Article 209 of this Law; reviewing an appeal or a protest about legal cost;

c/ Reviewing an appeal or a protest against rulings of the first-instance court.

2. In the cases specified in Clause 1 of this Article, the trial panel is not required to summon involved parties, except the case of examination of overdue appeals specified in Clause 2, Article 208 of this Law or when it is necessary to hear their opinions. The court shall still conduct the session in the absence of the summoned persons.

Article 227. Presentation of documents and evidences at appellate court

1. Involved parties may present additional documents and evidence during the appellate trial preparation in the following cases:

a/ Documents and evidences which the first-instance court has requested involved parties to present but they cannot present them for a plausible reason;

b/ Documents and evidences which the first-instance court does not request involved parties to present or which involved parties cannot know during the settlement of the case according to first-instance procedures.

2. The procedures for presentation of documents and evidences must comply with Article 83 of this Law.

Article 228. Suspension of appellate trial of a case

1. The appellate court shall issue a decision to suspend the appellate trial of a case; consequences of such suspension and the resumption of the appellate trial must comply with Articles 141 and 142 of this Law.

2. A decision to suspend the appellate trial of a case immediately takes legal effect.

3. A decision to suspend the appellate trial of a case shall be sent immediately to the involved parties and same-level procuracy.

Article 229. Termination of appellate trial of a case

1. The appellate court shall issue a decision to terminate the appellate trial of a case in the following cases:

a/ The case specified at Point a, Clause 1, Article 143 of this Law;

b/ The appeal is returned in accordance with this Law while the appellate court has accepted the case file;

c/ The appellant withdraws the whole of his/her appeal or the procuracy withdraws the whole of its protest;

d/ The appellant is still absent though he/she is duly summoned twice, except the case where he/she requests the court to conduct the trial in his/her absence or the case of occurrence of a force majeure event or an objective obstacle;

dd/ Other cases provided for by law.

2. In case the appellant-withdraws the whole of his/her appeal or the procuracy withdraws the whole of its protest before the appellate court issues a decision to bring the case to appellate trial, the judge assigned to preside over the court hearing shall issue a decision to suspend the appellate trial; in case the appellant withdraws the whole of his/her appeal or the procuracy withdraws the whole of its protest after the appellate court issues a decision to bring the case to appellate trial, the appellate trial panel shall issue a decision to terminate the appellate trial.

In these cases, the first-instance judgment or ruling will take legal effect on the date the appellate court issues a decision to terminate the appellate trial.

3. In case the appellant withdraws part of his/her appeal or the procuracy withdraws part of its protest, the appellate trial shall reason such withdrawal and decide to terminate the trial for such appealed or protested part of the appellate judgment.

4. In case the appellate panel terminates the appellate trial under Clause 2 of this Article while detecting that the first-instance judgment or ruling falls into one of the cases specified in Clause 1, Article 255 of this Law, it shall propose the chief justice of a competent court to make consideration according to cassation procedures.

5. The trial termination decision shall be immediately sent to the involved parties and same-level procuracy.

Article 230. Decision to apply, change or cancel provisional urgent measures

During the settlement of a case, the appellate court may decide to apply, change or cancel provisional urgent measures in accordance with Chapter V of this Law.

Article 231. Transfer of case files to procuracies

1. The appellate court shall transfer the case file together with the decision to bring the case to trial to the same-level procuracy.

2. The same-level procuracy shall study the case file within 15 days after receiving it; past this time limit, the procuracy shall return the case file to the court.

Article 232. Postponement of appellate court hearings

1. Cases of postponement of an appellate court hearing:

a/ The cases specified in Clause 2, Article 161; Clauses 3 and 4, Article 223; and Clause 1, Article 225, of this Law;

b/ A member of the trial panel, the procurator, court clerk or interpreter is changed without an immediate replacement;

c/ The expert witness is changed;

d/ It is necessary to verify or additionally collect documents and evidences but this cannot be done right at the court hearing.

2. Cases of postponement of an appellate court hearing are specified in Clause 2, Article 159, and Clause 2, Article 160, of this Law.

3. The duration of postponement of, and the decision to postpone, an appellate court hearing must comply with Article 163 of this Law.

Section 2. PROCEDURES FOR COMMENCING AN APPELLATE COURT HEARING

Article 233. Appellate trial procedures

1. Preparation for opening an appellate court hearing, procedures for commencing the hearing, procedures for disclosure of documents and examination of material exhibits at the hearing, judgment deliberation and pronouncement, and modification and supplementation of the appellate judgment shall be carried out like first-instance trial procedures provided in this Law.

2. After concluding the procedures for commencing the appellate court hearing, a member of the appellate trial panel shall announce the content of the case, the first-instance judgment’s rulings and the content of the appeal or protest.

3. The presiding judge of the court hearing shall ask:

a/ The plaintiff whether he/she withdraws his/her lawsuit petition;

b/ The appellant or procurator whether he/she modifies, supplements or withdraws his/ her appeal or protest;

c/ The involved parties whether they reach agreement on settlement of the case.

4. In case the appellant withdraws part of his/her appeal or the procurator withdraws part of his/her protest, the court shall accept such withdrawal. In case the appellant or procurator adds a new content beyond the scope of the initial appeal or protest, the court shall not consider such content.

5. The presiding judge of the court hearing shall ask the involved parties and procurator about the modification, supplementation or withdrawal of their appeal or protest at the court hearing as follows:

a/ Asking the plaintiff whether he/she withdraws his/her lawsuit petition;

b/ Asking the appellant or procurator whether he/she modifies, supplements or withdraws his/her appeal or protest.

6. If the procuracy files a protest, the procurator shall present the procuracy’s protest views on the first-instance judgment’s rulings which are protested against.

Article 234. Plaintiffs withdrawing lawsuit petitions before the opening of or during appellant court hearings

1. If the plaintiff withdraws his/her lawsuit petition before the opening of or during the appellate court hearing, the appellate trial panel shall ask the defendant whether he/she agrees with such withdrawal and shall, on a case-by-case basis:

a/ Not accept the plaintiff’s withdrawal of the lawsuit petition if the defendant disagrees with such withdrawal;

b/ Accept the plaintiff’s withdrawal of the lawsuit petition if the defendant agrees with such withdrawal. The appellate trial panel shall issue a decision to cancel the first-instance judgment and terminate the settlement of the case. In this case, involved parties shall still bear the first- instance legal cost under the ruling of the first-instance court and bear half of the appellate legal cost as prescribed by law.

2. In case the appellate trial panel issues a decision to terminate the settlement of the case, the plaintiff may re-institute the case according to the procedures prescribed in this Law, if the statute of limitations for instituting a lawsuit has not yet expired.

Article 235. Defendants modifying or canceling administrative decisions, disciplinary decisions on dismissal or decisions settling complaints about decisions handling competition cases, or ceasing or remedying administrative acts over which a lawsuit is instituted

1. In case the defendant modifies or cancels the administrative decision, disciplinary decision on dismissal or decision settling complaints about the decision handling the competition case, or ceases or remedies the administrative act over which a lawsuit is instituted and such modification, cancellation, cessation or remedy is related to rights and obligations of agencies, organizations or individuals, and the plaintiff agrees to withdraw the lawsuit petition while the person with related interests and obligations who makes an independent claim agrees to withdraw the claim, the appellate trial panel shall cancel the first-instance judgment or ruling and terminate the settlement of the case; the judgment’s ruling must clearly state the involved parties’ commitments for securing the execution of administrative judgments.

2. In case the defendant modifies or cancels the administrative decision, disciplinary decision on dismissal or decision settling complaints about the decision handling the competition case, or ceases or remedies the administrative act over which a lawsuit is instituted and such modification, cancellation, cessation or remedy is related to rights and obligations of other agencies, organizations or individuals that did not participate in first-instance procedures:

a/ If the plaintiff withdraws his/her lawsuit petition and the person with related interests and obligations who makes an independent claim withdraws his/her claim, the appellate trial panel shall cancel the first-instance judgment or ruling and terminate the settlement of the case. In this case, agencies, organizations and individuals with rights and obligations related to the modification or cancellation of the administrative decision, disciplinary decision on dismissal or decision settling complaints about the decision handling the competition case, or to the cessation or remediation of the administrative act over which a lawsuit is instituted may institute an administrative case according to general procedures;

b/ If the plaintiff does not withdraw his/her lawsuit petition and the person with related interests and obligations who makes an independent claim does not withdraw his/her claim, the appellate trial panel shall cancel the first-instance judgment or ruling for re-conducting the first-instance trial. In this case, the first-instance court shall involve agencies, organizations and individuals with rights and obligations related to the modification or cancellation of the administrative decision, disciplinary decision on dismissal or decision settling complaints about the decision handling the competition case, or to the cessation or remediation of the administrative act over which a lawsuit is instituted- in procedures in the capacity as persons with related interests and obligations.

Section 3. ADVERSARIAL PROCESS AT APPELLATE COURT HEARINGS

Article 236. Contents and method of adversarial process at appellate court hearings

Contents and method of adversarial process at appellate court hearings are specified in Article 175 of this Law.

Article 237. Presentations of involved parties and procurators at appellate court hearings

1. In case an involved party still retains his/her appeal or the procuracy retains its protest, presentations at the appellate court hearing shall be as follows:

a/ The defense counsel of lawful rights and interests of the appellant presents the content of and grounds for the appeal. The appellant may give additional opinions.

In case all involved parties file appeals, the presentations shall be made in the following order: the defense counsel of lawful rights and interests of the plaintiff filing an appeal and the plaintiff; the defense counsel of lawful rights and interests of the defendant filing an appeal and the defendant; the defense counsel of lawful rights and interests of the person with related rights and obligations filing an appeal and the person with related rights and obligations;

b/ In case only the procuracy makes a protest, the procurator shall present the content of and grounds for the protest. In case both appeal and protest are filed, the involved parties shall present the content of and grounds for their appeals first, then the procurator shall present the content of and grounds for the protest;

c/ The defense counsel of lawful rights and interests of other involved parties related to the appeal or protest shall present opinions on the content of the appeal or protest. The involved parties may give additional opinions.

2. In case involved parties have no defense counsel of their lawful rights and interests, they shall themselves present their opinions on the content of the appeal or protest and their proposals.

3. At the appellate court hearing, involved parties and procurator may produce additional documents and evidences.

Article 238. Suspension of appellate court hearings

The suspension of appellate court hearings must comply with Article 187 of this Law.

Article 239. Argument at appellate court hearings

1. At the appellate court hearing, involved parties and defense counsel of their lawful rights and interests may only make arguments regarding matters which fall within the scope of appellate trial and have been asked at the hearing.

2. The order of presentation of opinions upon argument is as follows:

a/ The defense counsel of lawful rights and interests of the appellant presents his/her opinions. The appellant may give additional opinions;

b/ The defense counsel of lawful rights and interests of involved parties makes arguments and counter-arguments. The involved parties may give additional opinions;

c/ The involved parties make arguments and counter-arguments under control by the presiding judge of the court hearing;

d/ When deeming it necessary, the trial panel may request the involved parties to make additional arguments on specific issues for use as a ground for settlement of the case.

3. The order of making arguments on the procuracy’s protest is as follows:

a/ The defense counsel of lawful rights and interests of involved parties presents the lawfulness and grounds of the procuracy’s protest. The involved parties may give additional opinions;

b/ The procurator presents opinions on issues mentioned by the defense counsel of lawful rights and interests of the involved parties and by the involved parties.

4. In case involved parties have no defense counsel of their lawful rights and interests, they shall themselves make arguments.

5. In case one of the involved parties or another procedure participant is absent, the presiding judge of the court hearing shall announce his/her testimonies for use as a ground for those who are present at the court hearing to make arguments and counter-arguments.

Article 240. Presentation by procurators at appellate court hearings

After procedure participants have made their arguments and counter-arguments, the procurator shall present the procuracy’s opinions on compliance with law during the settlement of the administrative case at the stage of appellate trial.

Right after the end of the court hearing, the procurator shall send his/her written presentations to the court for the latter to include them in the case file.

Article 241. Jurisdiction of appellate trial panel

1. To reject the appeal or protest and uphold the first-instance judgment’s rulings.

2. To modify part or the whole of the first-instance judgment if the first-instance court made an unlawful decision in the following cases:

a/ The burden of proof or collection of evidences was adequately carried out in accordance with Chapter VI of this Law;

b/ The burden of proof or collection of evidences was not adequately carried out at the first-instance level but evidences have been sufficiently added at the appellate court hearing.

3. To cancel the first-instance judgment and transfer the case file to the first-instance court for retrial in case there is a serious violation of procedures or when new important evidence needs to be collected which the appellate court cannot immediately add.

4. To cancel the first-instance judgment and terminate the settlement of the case if one of the cases specified in Clause 1, Article 143 of this Law occurs during the first-instance trial.

5. To terminate the appellate trial if such trial requires the presence of the appellant but the appellant is still absent though he/she has been duly summoned twice. In this case, the first- instance judgment takes legal effect.

6. When necessary to request a competent agency or person to consider and process the administrative document mentioned in Clause 1, Article 6 of this Law, the trial panel may suspend the court hearing pending the result of processing by the competent agency or person and propose the chief justice of the court to request in writing such agency or person to consider and process such administrative document. Within 30 days after receiving the court’s request, the competent agency or person shall give a written reply on the processing result to the court for use as a ground for settlement of the case. Past this time limit, if receiving no reply from the competent agency or person, the trial panel may apply documents issued by superior state management agencies for settlement of the case.

7. If discovering a legal document related to the settlement of the administrative case showing signs of being contrary to the Constitution, a law or legal document issued by a superior state agency, the trial panel shall request the chief justice of the court currently settling the case to recommend or propose the competent person defined in Article 112 of this Law to make a recommendation. In this case, the frial panel shall postpone the court hearing pending opinions of the chief justice of the court or suspend the settlement of the case as recommended in writing by the chief justice of the competent court.

Article 242. Appellate judgments

1. The appellate trial panel shall render an appellate judgment in the name of the Socialist Republic of Vietnam.

2. An appellate judgment must contain:

a/ An introductory part;

b/ A part on the case’s content, appeal, protest, and reasoning of the court;

c/ A part on the ruling.

3. The introductory part must clearly state the name of the appellate court; the serial number and date of acceptance of the case; the serial number of the judgment and the date of judgment pronouncement; full names of the members of the trial panel, court clerk, procurator, expert witness and interpreter; full names and addresses of the plaintiff, defendant, person with related interests and obligations, and agency or organization instituting the lawsuit; lawful representatives or defense counsels of their lawful rights and interests; the appellant or protesting procuracy; public or behind-closed-door trial; and time and venue of trial.

4. The part on the case’s content, the appeal or protest, and reasoning of the court must summarize the content of the case and ruling of the first-instance court; and content of the appeal or protest.

The court shall base itself on the adversarial process result and evidences examined at the court hearing to analyze, assess and reason the appeal, protest, circumstances of the case, settlement and trial by the first-instance court, and legal grounds and court precedents (if any) which the court has applied, to accept or reject the appeal or protest and settle other relevant issues.

5. The part on the ruling must state legal grounds and the trial panel’s ruling on each matter to be settled in the case, application of provisional urgent measures, first-instance and appellate legal costs, and procedural expenses (if any).

6. When conducting retrial of the case with part or the whole of the legally effective judgment or ruling annulled under the cassation or reopening ruling, the court shall settle the issues on assets and obligations already executed under the annulled judgment or ruling.

7. The appellate judgment takes legal effect on the date it is pronounced.

Article 243. Appellate procedures for appealed or protested rulings of first-instance courts

1. Within 15 days after receiving an appeal or a protest, the appellate court shall hold a session and issue a decision on the settlement of the appeal or protest.

2. A member of the appellate trial panel who has reviewed the first-instance ruling which is appealed or protested against shall briefly present the content of this ruling, content of the appeal or protest, and enclosed documents and evidences (if any).

3. Appealing involved parties invited to the session shall present their opinions on the appeal; the trial panel shall still hold the session in their absence.

4. The procurator of the same-level procuracy shall participate in the appellate session and present opinions on the settlement of the appeal or protest before the appellate trial panel makes a decision. The trial panel shall decide to postpone the session when the procurator is absent in case the procuracy files a protest.

5. When reviewing the first-instance court ruling which is appealed or protested against, the appellate trial panel may:

a/ Uphold the ruling;

b/ Modify the ruling;

c/ Annul the ruling and transfer the case file to the first-instance court for further settlement of the case.

6. The appellate decision takes legal effect on the date it is issued.

Article 244. Sending of appellate judgments and rulings

1. Within 30 days after making an appellate judgment or ruling, the appellate court shall send it to the involved parties, the procuracy and the court that have conducted the first-instance trial, the same-level procuracy, competent civil judgment enforcement agency, and immediate superior agency of the defendant.

2. The appellate judgment shall be announced by the appellate court on its portal (if any), except judgments containing information specified in Clause 2, Article 96 of this Law.

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