Chương XVIII Luật tố tụng hành chính 2015: Thủ tục giải quyết vụ án hành chính có yếu tố nước ngoài

Chapter XVIII

PROCEDURES FOR SETTLEMENT OF ADMINISTRATIVE CASES INVOLVING FOREIGN ELEMENTS

Article 298. Principles of application

1. This Chapter prescribes procedures for settlement of administrative cases involving foreign elements. If this Chapter does not prescribe such procedures, other relevant provisions of this Law shall be applied to settle such cases.

2. Administrative case involving foreign elements means an administrative case falling in any of the following cases:

a/ An involved party is a foreigner, foreign agency or organization, branch or representative office of a foreign agency or organization, or an international organization or its representative agency in Vietnam;

b/ An involved party is an overseas Vietnamese citizen;

c/ The administrative legal relationship is established, changed or terminated overseas;

d/ The case involves overseas assets.

Article 299. Procedural rights and obligations of foreign agencies, organizations and individuals, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam

1. Foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam may institute lawsuits at Vietnamese courts to request review of administrative decisions or administrative acts when having grounds to believe that such decisions or acts are illegal and infringe upon their lawful rights and interests.

2. When participating in administrative procedures, foreign agencies, organizations and individuals, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam have procedural rights and obligations like Vietnamese citizens, agencies and organizations.

3. The Vietnamese State may apply the principle of reciprocity to restrict relevant administrative procedural rights of foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam which the courts of their countries have restricted toward Vietnamese citizens, agencies and organizations, and branches and representative offices of overseas Vietnamese agencies and organizations.

Article 300. Administrative procedure legal capacity and administrative procedure act capacity of foreigners

1. Administrative procedure legal capacity and administrative procedure act capacity of a foreigner shall be determined as follows:

a/ Under the law of the country of which he/she is a citizen. For a stateless foreigner, his/ her administrative procedure legal capacity and administrative procedure act capacity shall be determined under the law of the country where he/she resides. For a stateless foreigner residing in Vietnam, his /her administrative procedure legal capacity and administrative procedure act capacity shall be determined under Vietnamese law;

b/ Under the law of one of the countries of which he/she is a citizen and where he/she resides, if he/she has different foreign citizenships.

For a foreigner who has different citizenships and resides in a country of which he/she is not a citizen, his/her administrative procedure legal capacity and administrative procedure act capacity shall be determined under the law of the country of which he/she is a citizen for the longest time;

c/ Under Vietnamese law, if he/she has different citizenships including Vietnamese citizenship, or if he/she has a card for permanent residence or temporary residence in Vietnam.

2. A foreigner may have his/her administrative procedure act capacity recognized at a Vietnamese court if he/she has such capacity in accordance with Vietnamese law in spite of not having it in accordance with the law of the relevant foreign country.

Article 301. Administrative procedure legal capacity of foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam

1. Administrative procedure legal capacity of a foreign agency or organization shall be determined in accordance with the law of the country where such agency or organization is established.

Administrative procedure legal capacity of a branch or representative office of a foreign agency or organization in Vietnam shall be determined in accordance with Vietnamese law.

2. Administrative procedure legal capacity of an international organization or its representative agency shall be determined under the treaty based on which such organization is established, the working regulation of such organization, or the treaty to which the Socialist Republic of Vietnam and such organization are contracting parties.

If the international organization declares to waive its privileges or immunities, its administrative procedures legal capacity shall be determined in accordance with Vietnamese law.

Article 302. Protection of lawful rights and interests of involved parties being foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam

The involved parties being foreigners, foreign agencies and organizations, branches or representative offices of foreign agencies and organizations, and international organizations or their representative agencies in Vietnam that participate in procedures at Vietnamese courts may ask lawyers to defend their lawful rights and interests in accordance with Vietnamese law.

Article 303. Modes of delivering and notifying courts’ procedural documents to overseas involved parties

1. The court shall deliver or notify its procedural documents by any of the following modes:

a/ The mode prescribed in the treaty to which the Socialist Republic of Vietnam is a contracting party;

b/ Through the diplomatic channel, for the involved party residing in the country that, like the Socialist Republic of Vietnam, is not a contracting member to a relevant treaty;

c/ By post to the address of the involved party currently residing in a foreign country if this mode is accepted by the law of such country;

d/ By post to the overseas representative mission of the Socialist Republic of Vietnam for being delivered to the involved party being an overseas Vietnamese citizen;

dd/ Through its representative office or branch in Vietnam in accordance with this Law, for foreign agencies or organizations having representative offices or branches in Vietnam;

e/ By post to the Vietnam-based at-law representative or authorized representative of the involved party in a foreign country.

2. The modes of delivery specified at Points a and b, Clause 1 of this Article must comply with the law on mutual judicial assistance.

3. If the modes of delivery specified in Clause 1 of this Article are unsuccessfully applied, the court shall post up the procedural document at the head office of the relevant overseas representative mission of the Socialist Republic of Vietnam, the court currently settling the case, or the last place of residence of the involved party in Vietnam for 30 days and on the court’s e-portal (if any) and the e-portal of the relevant overseas representative mission of the Socialist Republic of Vietnam. When necessary, the court may notify the procedural document in the global channel of the central radio or television 3 times in 3 consecutive days.

Article 304. Notification of acceptance of, and date for opening, sessions or court hearings

1. The court shall send a notice of acceptance of the case to overseas involved parties, clearly stating the time and venue for holding a session to examine the handover of, access to, and disclosure of evidences and dialogues (the session), or resumption of the session, and opening or resumption of the court hearing.

2. The time limit for opening a session or court hearing shall be determined as follows:

a/ A session shall be opened within 4 months to 6 months after the issuance of a written notice of acceptance of the case. The date of resumption of a session (if any) shall be fixed within 30 days after the date of opening such session.

b/ A court hearing shall be opened within 6 months to 8 months after the issuance of a written notice of acceptance of the case. The date of resumption of a court hearing (if any) shall be fixed within 30 days after the date of opening such court hearing, except the case specified in Clause 4, Article 305 of this Law.

Article 305. Handling of results of delivery of courts’ procedural documents to overseas involved parties

Upon receiving results of delivery of the court’s procedural document and results of collection of evidences in a foreign country, the court shall, on a case-by-case basis:

1. Not hold a session when it has received the delivery results by one of the modes specified in Clause 1, Article 303 of this Law and the involved parties have provided sufficient testimonies, documents and evidences, and the administrative case falls into the case where no dialogue can be held prescribed in Article 135 of this Law.

2. Postpone the session if the court has received the notice of delivery completion but until the date of holding the session, it receives no testimonies, documents or evidences from the involved parties that do not ask for permitted absence from the session. In case overseas involved parties are still absent on the date of session resumption, the court shall consider it impossible for holding a dialogue in the case.

3. Postpone the court hearing in the following cases:

a/ Overseas involved parties request in writing the postponement of the initial court hearing;

b/ Overseas involved parties are absent from the initial .court hearing, unless they make a written request for trial to be conducted in their absence.

4. Postpone the court hearing, if it receives no notice of delivery results or testimonies, documents or evidences of overseas involved parties and, on the date of opening the court hearing, these involved parties are still absent and make no written request for trial to be conducted in their absence.

Right after the postponement of the court hearing, the court shall request in writing the Ministry of Justice or overseas representative mission of the Socialist Republic of Vietnam to notify the delivery of the court’s procedural document to the involved parties in case the court makes the delivery via this mission by one of the modes prescribed at Points a, b and d, Clause 1, Article 303 of this Law.

Within 30 days after receiving the court’s request, the overseas representative mission of the Socialist Republic of Vietnam shall notify the court of the result of delivery of the procedural document to the overseas involved parties.

Within 10 days after receiving the court’s request, the Ministry of Justice shall request in writing the competent foreign agency to give a reply on the result of judicial mandate.

Within 5 working days after receiving the reply from the competent foreign agency, the Ministry of Justice shall give a reply to the court.

Past the 3-month time limit from the date of transferring the court’s request to the competent foreign agency, if receiving no reply, the Ministry of Justice shall notify such to the court for use as a ground for settlement of the case.

5. Conduct trial in the absence of overseas involved parties in the following cases:

a/ It has received the result of delivery of the procedural document to the involved parties by one of the modes prescribed in Clause 1, Article 303 of this Law and the involved parties have provided sufficient testimonies, documents or evidences and requested the court to conduct trial in their absence;

b/ It receives no notice from the competent agency mentioned in Clause 4 of this Article regarding the delivery result;

c/ It has taken the measures mentioned in Clause 3, Article 303 of this Law.

Article 306. Recognition of papers and documents made, issued or certified by competent foreign agencies or sent by post to Vietnamese courts by overseas individuals

1. Vietnamese courts shall recognize papers and documents made, issued or certified by competent foreign agencies or organizations in the following cases:

a/ Papers, documents and notarized or certified Vietnamese translations have been legalized by consular offices;

b/ Papers and documents are exempt from consular legalization in accordance with Vietnamese law or treaty to which the Socialist Republic of Vietnam is a contracting party.

2. Vietnamese courts shall recognize papers and documents made by overseas individuals in the following cases:

a/ Foreign-language papers and documents already translated into Vietnamese are lawfully notarized or certified in accordance with the Vietnamese law;

b/ Papers and documents made in a foreign country are notarized or certified in accordance with the law of that country and have been legalized by consular offices;

c/ Papers and documents made in Vietnamese by overseas Vietnamese citizens with their signatures certified in accordance with Vietnamese law.

Article 307. Time limit for appealing against court judgments or rulings on trial of administrative cases involving foreign elements

1. Involved parties present in Vietnam may appeal against a court judgment or ruling within the time limit specified in Article 206 of this Law.

2. For overseas involved parties who are absent from the court hearing, the time limit for them to appeal against a court judgment or ruling is 30 days after such judgment or ruling is duly delivered or posted up in accordance with law.

3. In case the court conducts trial in the absence of overseas involved parties under Point b, Clause 5, Article 305 of this Law, the time limit for filing an appeal is 12 months after the judgment is pronounced.

Article 308. Delivery or notification of procedural documents of appellate courts to overseas involved parties and handling of delivery or notification results

Appellate courts shall deliver or notify procedural documents to overseas involved parties and handle delivery or notification results in accordance with Articles 303, 304 and 305 of this Law.