Chương XV Luật tố tụng hành chính 2015: Thủ tục giám đốc thẩm

Chapter XV

CASSATION PROCEDURES

Article 254. Nature of cassation

Cassation means the review of a legally effective court judgment or ruling which is protested against according to cassation procedures when there are grounds prescribed in Article 255 of this Law.

Article 255. Grounds and conditions for protest according to cassation procedures

1. A legally effective court judgment or ruling shall be protested against according to cassation procedures when there is one of the following grounds:

a/ Its conclusion is not consistent with the objective circumstances of the case, causing damage to lawful rights and interests of the involved parties;

b/ There is a serious violation of procedures, rendering the involved parties unable to exercise their procedural rights and perform their procedural obligations, leading to the fact that their lawful rights and interests are not protected in accordance with law;

c/ There is a mistake in the application of law, resulting in issuance of incorrect judgments or rulings, causing damage to lawful rights and interests of the involved parties, public interests, interests of the State or lawful rights and interests of third parties.

2. Persons competent to protest defined in Article 260 of this Law shall file a protest against a legally effective court judgment or ruling when having one of the grounds prescribed in Clause 1 of this Article and when there is a written request prescribed in Articles 257 and 258 of this Law; such request is not required in case the judgment or ruling infringes upon public interests, interests of the State or lawful rights and interests of third parties.

Article 256. Discovery of legally effective judgments or rulings which need to be reviewed according to cassation procedures

1. Within 1 year from the date a court judgment or ruling takes legal effect, if discovering one of the grounds prescribed in Clause 1, Article 255 of this Law, the involved parties may file a written request to a person competent to protest defined in Article 260 of this Law to consider filing a protest according to cassation procedures.

2. In case the court, procuracy, or another agency, organization or individual discovers one of the grounds prescribed in Clause 1, Article 255 of this Law, it/he/she shall notify such in writing to a person competent to protest defined in Article 260 of this Law.

3. The chief justice of a provincial-level court shall propose the chief justice of the superior people’s court or the Chief Justice of the Supreme People’s Court, and the chief justice of the superior people’s court shall propose the Chief Justice of the Supreme People’s Court to consider filing a protest according to cassation procedures against a legally effective judgment or ruling if discovering one of the grounds prescribed in Clause 1, Article 255 of this Law.

Article 257. Written requests for reviewing legally effective court judgments or rulings according to cassation procedures

1. A written request must have the following principal contents;

a/ Date of making the request;

b/ Name and address of the requester;

c/ Name of the legally effective court judgment or ruling requested to be reviewed according to cassation procedures;

d/ Reasons and grounds for making the request, and requirements of the requester;

dd/ Signature or fingerprint, for a requester being an individual; or signature and seal of a lawful representative, for a requester being an agency or organization. For a requester being an enterprise, the use of its seals must comply with the Law on Enterprises.

2. The requester shall file a request enclosed with the legally effective court judgment or ruling, and documents and evidences (if any) to prove that his/her/its request is grounded.

3. The request and documents and evidences shall be sent to a person competent to protest according to cassation procedures defined in Article 260 of this Law.

Article 258. Procedures for receiving and examining written requests, notices or recommendations on review of legally effective court judgments or rulings according to cassation procedures

1. The court or procuracy shall receive a written request submitted directly by the involved parties or sent by post, take note in the request receipt book and issue a receipt to the involved parties. The date of sending the request is the date the involved parties submit the request at the court or procuracy or the date indicated in the postmark of the sending post office.

Upon receiving a notice or recommendation of an agency, organization or individual prescribed in Clause 2 or 3, Article 256 of this Law, the court or procuracy shall record such receipt in the acceptance book for settlement.

2. The court or procuracy shall accept a written request which has sufficient contents and enclosed documents prescribed in Article 257 of this Law. The court or procuracy may request the involved parties to supplement the request and enclosed documents which are incomplete. If the involved parties fail to make supplementation, the court or procuracy shall notify such in writing, return the request to the involved parties and take note in the request receipt book.

3. The person competent to protest according to cassation procedures shall assign a responsible officer to study the request, notice or recommendation and the case file and report such to him/her for consideration and decision. If making no protest, the competent person shall notify such in writing to the involved parties and agency, organization or individual that makes the notice or recommendation.

The Chief Justice of the Supreme People’s Court shall assign a judge of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy shall assign a procurator of the Supreme People’s Procuracy to study the request, notice or recommendation and the case file and report such to the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy for consideration and decision on protest. If no protest is made, the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy shall himself/herself notify such in writing to the involved parties and agency, organization or individual that has made the notice or recommendation, or authorize a judge of the Supreme People’s Court or a procurator of the Supreme People’s Procuracy to do so.

Article 259. Supplementation and verification of documents and evidences in cassation procedures

1. The involved parties may provide documents and evidences to the court or procuracy competent to examine them according to cassation procedures if the first-instance court or appellate court has not requested the involved parties to submit these documents and evidences or it has so requested but the involved parties fail to submit these documents and evidences for plausible reasons or the involved parties could not know these documents and evidences during the settlement of the case.

2. During the settlement of a written request according to cassation procedures, the court or procuracy may request the requester to add documents and evidences or shall itself examine and verify necessary documents and evidences.

Article 260. Persons competent to protest according to cassation procedures

1. The Chief Justice of the Supreme People’s Court and the Procurator General of the Supreme People’s Procuracy have the competence to protest according to cassation procedures against legally effective judgments or rulings of superior people’s courts and those of other courts when finding it necessary, except decisions of the Judicial Council of the Supreme People’s Court.

2. Chief justices of superior people’s courts and chief procurators of superior people’s procuracies have the competence to protest according to cassation procedures against legally effective judgments or rulings of provincial- or district-level courts under their territorial jurisdiction.

Article 261. Postponement or suspension of enforcement of legally effective judgments or rulings

1. Persons competent to protest against legally effective court judgments or rulings may postpone the enforcement of such judgments or rulings in order to consider filing a protest according to cassation procedures. The postponement duration must not exceed 3 months.

For a civil ruling in an administrative court judgment or ruling, a person competent to protest may request the civil judgment enforcement agency to postpone the judgment enforcement in accordance with the law on enforcement of civil judgments.

2. A person who has made a protest according to cassation procedures against a legally effective judgment or ruling may decide to suspend the enforcement of such judgment or ruling until the cassation ruling is made.

Article 262. Decision to protest according to cassation procedures

A decision to protest according to cassation procedures must contain the following principal contents:

1. Serial number and date of the decision;

2. Position of the decision issuer;

3. Serial number and date of the legally effective judgment or ruling protested against;

4. Rulings of the legally effective judgment or ruling protested against;

5. Remarks and analysis of violations or errors of the legally effective judgment or ruling protested against;

6. Legal grounds for making the decision;

7. Decision to protest against part or the whole of the legally effective judgment or ruling;

8. Name of the court competent to conduct cassation review of the case;

9. Proposals of the protester.

Article 263. Time limit for protest according to cassation procedures

1. Persons competent to protest according to cassation procedures may file a protest within 3 years after the date the court judgment or ruling takes legal effect.

2. The time limit for protesting against the civil ruling in an administrative court judgment or ruling must comply with the civil procedure law.

Article 264. Sending of decisions to protest according to cassation procedures

1. A decision to protest according to cassation procedures shall be immediately sent to the court that has made the legally effective judgment or ruling protested against, involved parties, competent civil judgment enforcement agency and other persons with interests and obligations related to protest contents.

2. In case the Chief Justice of the Supreme People’s Court or chief justice of a superior people’s court files a protest, the protest decision and the case file shall be immediately sent to the same-level procuracy. Within 15 days after receiving the case file, the procuracy shall study and return it to the court competent to conduct cassation review.

3. In case the Procurator General of the Supreme People’s Procuracy or chief procurator of a superior people’s procuracie files a protest, the protest decision shall be immediately sent to the court competent to conduct cassation review.

4. In case the Chief Justice of the Supreme People’s Court files a protest against a legally effective judgment or ruling of another court under Clause 1, Article 260 of this Law, he/she may assign a superior people’s court to conduct trial according to cassation procedures.

Article 265. Modification, supplementation or withdrawal of protests

1. A person who has filed a protest according to cassation procedures may modify or supplement the protest decision if the protest time limit prescribed in Article 263 of this Law has not yet expired.

2. Before the opening of or during a court hearing, the person who has filed a protest may withdraw the protest. A written record of the withdrawal of the protest prior to the opening of a court hearing shall be made and sent under Article 264 of this Law. The withdrawal of a protest during a court hearing shall be recorded in the hearing’s minutes and the cassation trial panel shall decide to terminate the cassation trial.

Article 266. Cassation jurisdiction

1. Judicial Committees of superior people’s courts shall conduct cassation review of legally effective judgments and rulings of provincial- or district-level courts under their territorial jurisdiction which are protested against as follows:

a/ The Judicial Committee of a superior people’s court shall, through forming a trial panel composed of 3 judges, conduct cassation trial of legally effective judgments and rulings of provincial- or district-level courts which are protested against according to cassation procedures;

b/ The entire Judicial Committee of a superior people’s court shall conduct cassation trial of legally effective judgments and rulings mentioned at Point a, Clause 1 of this Article which are complicated, or judgments and rulings for which the Judicial Committee of the superior people’s court has conducted cassation trial through forming a trial panel composed of 3 judges who did not reach agreement when voting to approve the decision on the settlement of the case.

2. The. Judicial Council of the Supreme People’s Court shall conduct cassation review of legally effective judgments and rulings of superior people’s courts which are protested against as follows:

a/ The Judicial Council of the Supreme People’s Court shall, through forming a trial panel composed of 5 judges, conduct cassation trial of judgments and rulings of superior people’s courts which are protested against according to cassation procedures;

b/ The entire Judicial Council of the Supreme People’s Court shall conduct cassation trial of legally effective judgments and rulings mentioned at Point a of this Clause which are complicated, or judgments and rulings for which the Judicial Council of the Supreme People’s Court has conducted cassation trial through forming a trial panel composed of 5 judges who did not reach agreement when voting to approve the decision on the settlement of the case.

3. Complicated cases mentioned at Point b, Clause 1, and Point b, Clause 2, of this Article are those falling in one of the following cases:

a/ The provisions applicable to issues that need to be settled in the case are not clear or not yet guided for uniform application;

b/ There are divergent opinions on assessment of evidences and application of law;

c/ The public pays special attention to the settlement of the case related to public interests, interests of the State or protection of human rights and citizens’ rights.

4. The Chief Justice of a superior people’s court shall consider and decide on the organization of cassation trial in the cases specified in Clause 1 of this Article. The Chief Justice of the Supreme People’s Court shall consider and decide on the organization of cassation trial in the cases specified in Clause 2 of this Article.

5. In case legally effective judgments or rulings on the same administrative case fall within the cassation jurisdiction of a superior people’s court and the Supreme People’s Court, the Supreme People’s Court will have the competence to conduct cassation review of the whole case.

Article 267. Cassation hearing participants

1. A cassation hearing shall be participated by the same-level procuracy.

2. When finding it necessary, the court may summon the involved parties, lawful representatives or defense counsels of lawful rights and interests of the involved parties and other procedure participants involved in the protest to participate in a cassation hearing. The cassation trial panel shall still conduct the court hearing in the absence of these persons.

Article 268. Time limit for opening a cassation hearing

Within 60 days after receiving the protest enclosed with the case file, the court competent to conduct cassation review shall open a court hearing.

Article 269. Preparations for a cassation hearing

The chief justice of the court shall assign a judge to prepare a written presentation on the case at the court hearing. The presentation must summarize the contents of the case and judgments and rulings of the courts at all levels, and contents of the protest. The presentation shall be sent to members of the cassation trial panel at least 7 days before the date of opening the cassation hearing.

Article 270. Procedures at a cassation hearing

1. After the presiding judge opens the court hearing, a member of the cassation trial panel shall summarize the contents of the case, the case trial process, rulings of the legally effective court judgment or ruling protested against, grounds for and reasoning in the protest, and requests of the protester. If the procuracy files a protest, its representative shall present the protest contents.

2. The involved parties, lawful representatives or defense counsels of lawful rights and interests of the involved parties and other procedure participants who are summoned by the court to the cassation hearing shall present their opinions on issues as requested by the cassation trial panel. In case these persons are absent but send their written opinions to the hearing, the cassation trial panel shall disclose their opinions.

3. A representative of the procuracy shall present opinions on the protest decision and settlement of the case.

Right after the end of the court hearing, the procurator shall send a written record of opinions to the court for inclusion in the case file.

4. Members of the cassation trial panel shall present and discuss opinions. The cassation trial panel shall deliberate the judgment, vote on the settlement of the case and disclose the contents of the ruling on the case settlement at the court hearing. Judgment deliberation must adhere to the principles prescribed in Article 191 of this Law.

5. If the Judicial Committee of a superior people’s court conducts trial under Point a, Clause 1, Article 266 of this Law, the trial panel’s ruling shall be voted for by all of its members.

If the trial is conducted under Point b, Clause 1, Article 266 of this Law, the hearing by the entire Judicial Committee of the superior people’s court shall be attended by at least two-thirds of the total members of the Committee; the Committee’s ruling must be voted for by more than half of its total members.

6. If the Judicial Council of the Supreme People’s Court conducts trial under Point a, Clause 2, Article 266 of this Law, the trial panel’s ruling shall be voted for by all of its members.

If the trial is conducted under Point b, Clause 2, Article 266 of this Law, the hearing by the entire Judicial Council of the Supreme People’s Court shall be attended by at least two-thirds of total members of the Council; the Council’s ruling must be voted for by more than half of its total members.

Article 271. Scope of cassation review

1. The cassation trial panel shall only review parts of the legally effective judgment or ruling which are protested against or related to the review of the protested contents.

2. The cassation trial panel may review parts of the legally effective judgment or ruling which are neither protested against nor related to the protested contents if these parts infringe upon public interests, interests of the State, or lawful rights and interests of third parties other than the involved parties in the case.

Article 272. Jurisdiction of cassation review panel

1. To reject the protest and uphold the legally effective judgment or ruling.

2. To annul the legally effective judgment or ruling protested against and uphold the lawful judgment or ruling of a subordinate court which has been annulled or modified.

3. To annul the legally effective judgment or ruling protested against for retrial according to first-instance or appellate procedures.

4. To annul the judgment or ruling of the court that has settled the case, and terminate the settlement of the case.

5. To modify part or the whole of the legally effective court judgment or ruling.

Article 273. Annulment of legally effective judgments or rulings which are protested against and upholding of lawful judgments or rulings of subordinate courts which have been annulled or modified

The cassation trial panel shall issue a decision to annul the legally effective judgment or ruling protested against and uphold the lawful judgment or ruling of a subordinate court which has been annulled or partially or wholly modified by the legally effective judgment or ruling protested against.

In case the court judgment or ruling has been partly or wholly executed, the cassation trial panel shall redress consequences of such execution.

Article 274. Annulment of legally effective judgments or rulings which are protested against for retrial according to first-instance or appellate procedures

The cassation trial panel shall issue a decision to annul the legally effective judgment or ruling protested against for retrial according to first-instance or appellate procedures in the following cases:

1. The evidence collection and burden of proof have been carried out inadequately or in contravention of Chapter VI of this Law;

2. The conclusions in the judgment or ruling do not conform to the objective circumstances of the case or there is a serious mistake in the application of law;

3. The composition of the first-instance or appellate trial panel is incompliant with this Law or there is another serious procedural violation.

Article 275. Annulment of judgments or rulings of courts that have settled the cases and termination of settlement of the cases

The cassation trial panel shall issue a decision to annul the judgment or ruling of the court that has settled the case and to terminate the settlement of the case if, during the first-instance or appellate trial, there arises one of the cases specified in Clause 1, Article 143 of this Law. The cassation court shall return the case file to the court that has conducted the first-instance trial for returning the lawsuit petition together with enclosed documents and evidences to the plaintiff, if so requested.

In case the court judgment or ruling has been partly or wholly executed, the cassation trial panel shall redress consequences of such execution.

Article 276. Modification of part or whole of legally effective court judgments or rulings

1. The cassation trial panel shall issue a decision to modify part or the whole of the legally effective court judgment or ruling when the following conditions are fully satisfied:

a/ Documents and evidences in the case file are adequate and clear; there are enough grounds for clarifying circumstances in the case;

b/ The modification does not affect the rights and obligations of other agencies, organizations or individuals.

2. In case the court judgment or ruling has been partly or wholly executed, the cassation ừial panel shall redress consequences of such execution.

Article 277. Cassation ruling

1. The cassation trial panel shall make a cassation ruling in the name of the Socialist Republic of Vietnam.

2. A cassation ruling must have the following contents:

a/ Date and venue of the cassation court hearing;

b/ Full names of members of the cassation trial panel; or full name and position of the presiding judge and number of members participating in trial, in case the cassation trial panel is the Judicial Committee of a superior people’s court or the Judicial Council of the Supreme People’s Court;

c/ Full names of the court clerk and procurator participating in the court hearing;

d/ Name of the case brought to cassation trial by the panel;

dd/ Full names and addresses of the involved parties in the case;

e/ Summary of the contents of the case, rulings of the legally effective judgment or ruling protested against;

g/ Protest decision; reason for making the protest;

h/ Reasoning by the cassation trial panel, including an analysis of the grounds for accepting or rejecting the protest; and reasoning by the cassation trial panel on the legal issues raised and settled in the case (if any);

i/ Points, clauses and articles of the Law on Administrative Procedures which the cassation trial panel refers to in making the ruling;

k/ Ruling of the cassation trial panel.

3. A ruling of the cassation trial panel of the Judicial Council of the Supreme People’s Court must have reasoning to clarify provisions which are understood in different ways; analyze and explain legal issues and events, and point out causes, solutions and legal norms that need to be applied (if any).

Article 278. Effect of cassation rulings

A cassation ruling takes legal effect on the date it is made by the cassation trial panel.

Article 279. Sending of cassation rulings

Within 5 working days after making a cassation ruling, the cassation trial panel shall send it to:

1. The involved parties;

2. The court that has rendered the legally effective judgment or ruling protested against, annulled or modified;

3. The same-level procuracy and procuracy competent to supervise the judgment execution;

4. The competent civil judgment enforcement agency;

5. The immediate superior agency of the defendant;

6. Cassation rulings shall be posted by the cassation court on its e-portal (if any), except those containing information mentioned in Clause 2, Article 96 of this Law.