Nghị định 15/2014/NĐ-CP hướng dẫn Luật hòa giải ở cơ sở

DECREE

DETAILING A NUMBER OF ARTICLES AND MEASURES FOR IMPLEMENTATION OF THE LAW ON GRASSROOTS CONCILIATION (*)

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the June 20, 2013 Law on Grassroots Conciliation;

At the proposal of the Minister of Justice,

The Government promulgates the Decree detailing a number of articles and measures for implementation of the Law on Grassroots Conciliation.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides in detail the scope of grassroots conciliation; financial support for grassroots conciliation work and conciliators, and some measures for implementation of the Law on Grassroots Conciliation.

Article 2. Encouragement of individuals to participate in grassroots conciliation

Prestigious persons in families, clans and communities participating in grassroots conciliation are entitled to state support in accessing documents and legal knowledge for grassroots conciliation activities; and to commendation for active participation in grassroots conciliation activities as prescribed at Point d, Clause 1; Point d, Clause 2; and Point d, Clause 3, Article 4 of this Decree.

Article 3. Encouragement of organizations and individuals to make contributions to and support grassroots conciliation work

1. Organizations and persons that make contributions to and support grassroots conciliation work are entitled to free provision by the State of information on relevant policies and laws; and to commendation for active participation in grassroots conciliation activities as prescribed at Point d, Clause 1; Point d, Clause 2; and Point d, Clause 3, Article 4 of this Decree.

2. Organizations of the Vietnam Lawyers Association, the Vietnam Bar Federation, other socio-professional law organizations, law practice organizations and legal consultancy organizations that support documents for conciliation activities; disseminate the law on grassroots conciliation; and support training in legal knowledge and skills for conciliators; and create conditions for their members to participate in grassroots conciliation, are entitled to commendation as prescribed at Point d, Clause 1; Point d, Clause 2; and Point d, Clause 3, Article 4 of this Decree.

Article 4. Responsibilities of People’s Committees at all levels for state management of grassroots conciliation

1. Provincial-level People’s Committees shall:

a/ Assume the prime responsibility for, and coordinate with provincial-level Vietnam Fatherland Front Committees in, guiding and organizing the implementation of legal documents on grassroots conciliation in their localities;

b/ Compile and support documents for grassroots conciliation work; provide training in and professional guidance on state management of grassroots conciliation for the district level; guide the district level in training and updating legal knowledge on and skills of grassroots conciliation for conciliators under the Ministry of Justice’s guidance;

c/ Summarize and submit cost estimates for support of grassroots conciliation work in their localities to provincial-level People’s Councils for consideration and decision;

d/ Assume the prime responsibility for, and coordinate with provincial-level Vietnam Fatherland Front Committees in, examining, reviewing and commending grassroots conciliation activities in accordance with the law on emulation and commendation; receive, organize implementation, and commend organizations and persons participating in, making contributions to, and supporting, grassroots conciliation work of provinces and centrally run cities; consider and decide on commendation of organizations and persons participating in and making contributions to grassroots conciliation work of urban and rural districts, towns and provincial cities at the proposal of district-level People’s Committees; biannually, annually and upon request make statistics and reports on the implementation of the law on grassroots conciliation to provincial-level People’s Councils and the Ministry of Justice.

2. District-level People’s Committees shall:

a/ Assume the prime responsibility for, and coordinate with district-level Vietnam Fatherland Front Committees in, guiding and organizing the implementation of legal documents on grassroots conciliation in their localities; guide the incorporation of the implementation of the law on grassroots conciliation into the formulation and implementation of conventions of hamlets, villages or residential groups; provide free information on relevant policies and laws to the organizations and persons specified in Clause 1, Article 3 of this Decree;

b/ Provide training and retraining in and professional guidance on state management of grassroots conciliation for the commune level; train in legal knowledge on and skills of grassroots conciliation for conciliators under the guidance of provincial-level Justice Departments;

c/ Summarize and submit cost estimates for support of grassroots conciliation work in their localities to People’s Councils or competent state agencies for consideration and decision;

d/ Assume the prime responsibility for, and coordinate with district-level Vietnam Fatherland Front Committees in, examining, reviewing and commending conciliation activities in accordance with the law on emulation and commendation; receive, organize implementation, and when necessary, commend or propose provincial-level People’s Committees to commend organizations and persons participating in, making contributions to, and supporting, grassroots conciliation work of urban and rural districts, towns and provincial cities; consider and decide on commendation of organizations and persons participating in, making contributions to, and supporting, grassroots conciliation work of communes, wards and townships at the proposal of commune-level People’s Committees; biannually, annually and upon request make statistics and reports on the implementation of the law on grassroots conciliation to district-level People’s Councils and provincial-level Justice Departments.

3. Commune-level People’s Committees shall:

a/ Assume the prime responsibility for, and coordinate with commune-level Vietnam Fatherland Front Committees in, guiding and organizing the implementation of legal documents on grassroots conciliation; guide the incorporation of the implementation of the law on grassroots conciliation into the formulation and implementation of conventions of hamlets, villages or residential groups; support documents and disseminate laws for conciliation activities for the persons specified in Article 2 of this Decree;

b/ Coordinate with commune-level Vietnam Fatherland Front Committees in guiding Front Working Boards in coordinating with heads of hamlets or street residential groups in forming and strengthening conciliation teams and recognizing or relieving from duty heads and members of conciliation teams;

c/ Make and submit cost estimates for support of conciliation activities to People’s Councils of the same level or competent state agencies for consideration and decision; provide financial support for conciliation activities in communes, wards and townships;

d/ Assume the prime responsibility for, and coordinate with commune-level Vietnam Fatherland Front Committees in, examining, reviewing and commending conciliation activities in accordance with the law on emulation and commendation; receive, organize implementation, and when necessary, commend or propose district-level People’s Committees to commend organizations and persons participating in, making contributions to, and supporting, grassroots conciliation work of communes, wards and townships; biannually, annually and upon request make statistics and reports on the implementation of the law on grassroots conciliation to commune-level People’s Councils and district-level Justice Sections.

Chapter II

SCOPE OF GRASSROOTS CONCILATION

Article 5. Scope of grassroots conciliation

1. Grassroots conciliation shall be carried out for the following conflicts, disputes and violations of law:

a/ Conflicts between parties (caused by different views about life, lifestyles or characters or conflicts over the use of passage through houses, public access, electricity or water facilities or auxiliary works, living timetable or causing insanitation in public places, or for other reasons);

b/ Disputes arising from civil relations such as disputes over ownership right, civil obligations, civil contracts, inheritance or land use rights;

c/ Disputes arising from marriage and family relations such as disputes arising from husband and wife relation; parent and child relation, grandparent and grandchild relation, sibling relation and relation between other family members; alimony; identification of parents and children; child adoption; divorce;

d/ Violations of law which are not subject to penal liability examination or administrative sanctioning as prescribed by law;

dd/ Violations of the criminal law in the following cases:

Violations not being subject to institution of criminal cases as provided in Article 107 of the Criminal Procedure Code and not being administratively handled by competent state agencies as prescribed by law;

Violations for which criminal cases, as prescribed by law, shall be instituted only at the request of victims but victims do not request such, and which are not administratively handled by competent state agencies as prescribed by law;

Violations for which criminal cases have been instituted but later investigation termination decisions or criminal case termination decisions are issued by procedure-conducting agencies under Clause 2, Article 164, or under Clause 1, Article 169 of the Criminal Procedure Code, and which are not administratively handled by competent state agencies as prescribed by law;

e/ Violations of law subject to the measure of education in communes, wards or townships under the Government’s Decree No. 111/2013/ND-CP of September 30, 2013, on application of the administrative handling measure of education in communes, wards or townships, or violations eligible for application of measures substituting administrative handling under Chapter II, Part 5 of the Law on Handling of Administrative Violations;

g/ Other cases and matters not prohibited by law.

2. Grassroots conciliation shall not be carried out in the following cases:

a/ Conflicts and disputes that infringe upon the State’s interests or public interests;

b/ Violations of the law on marriage and family which, as prescribed by law, must be settled by competent state agencies, and civil transactions which are prohibited by law or against social ethics;

c/ Law violations which, according to regulations, are subject to penal liability examination, except the cases specified at Point dd, Clause 1 of this Article;

d/ Law violations which, according to regulations, are subject to administrative handling, except the cases specified at Point e, Clause 1 of this Article;

dd/ Other conflicts and disputes which must not be conciliated at the grassroots under Point d, Clause 1, Article 3 of the Law on Grassroots Conciliation, including:

Conciliation of commercial disputes, which must comply with the Commercial Law and its guiding documents;

Conciliation of labor disputes, which must comply with the Labor Code and its guiding documents.

Article 6. Settlement of cases and matters not to be conciliated at the grassroots

When determining a case or matter outside the scope of conciliation under Article 3 of the Law on Grassroots Conciliation and under Clause 2, Article 5 of this Decree, a conciliator shall explain the reason to involved parties and guide them in carrying out necessary procedures to request settlement by a competent state agency.

Article 7. Guidance on determination of scope of grassroots conciliation

When unable to determine whether a case or matter is conciliated at the grassroots, a conciliator shall request guidance from the justice and civil-status officer.

Chapter III

GRASSROOTS CONCILIATION ACTIVITIES

Article 8. Conciliation for parties from different hamlets or street residential groups

1. When the involved parties come from different hamlets or street residential groups, the heads of conciliation teams or assigned conciliators of those hamlets or street residential groups shall collaborate, exchange information and discuss conciliation measures and notify the heads of the Front Working Boards of those places for coordinated settlement.

2. Conciliators shall coordinate in conducting conciliation and promptly notify conciliation results to heads of conciliation teams.

Article 9. Responsibilities of individuals and organizations for monitoring and urging implementation of successful conciliation agreements

Conciliators and conciliation team heads shall comply with Article 26 of the Law on Grassroots Conciliation. In case a conciliation team head reports on problems arising in the implementation of a successful conciliation agreement, the Front Working Board head shall assume the prime responsibility for, and coordinate with the hamlet or street residential group head and families, clans and prestigious persons in, mobilizing and persuading the involved parties and taking measures to promptly solve those problems.

Article 10. Settlement of unsuccessful conciliation cases

1. When the involved parties fail to reach agreement and request further conciliation, the conciliator shall conduct conciliation.

2. When the involved parties fail to reach agreement and a party requests further conciliation but there are grounds to believe that further conciliation will be not be successful, the conciliator shall decide to terminate conciliation according to Clause 3, Article 23 of the Law on Grassroots Conciliation and guide the involved parties in requesting settlement by competent state agencies in accordance with law.

3. When the involved parties request to make a document on unsuccessful conciliation, the conciliator shall make such document which clearly indicates basic information on the parties; major contents of the case or matter; requests of the parties; reasons for unsuccessful conciliation; and signature of the conciliator.

Article 11. Monitoring registers of conciliation activities

1. A monitoring register of conciliation activities must contain the following major information:

a/ Date, month, year of receipt of the case or matter for conciliation;

b/ Full names, ages and addresses of parties and persons involved in the case or matter;

c/ Full names of the conciliator and persons invited to the conciliation (if any);

d/ Major contents of the case or matter and requests of parties;

dd/ Conciliation results;

e/ Signatures of the conciliator and witnesses and persons invited to the conciliation (if any).

2. After terminating conciliation, the conciliator shall record contents of the case or matter in the monitoring register of conciliation activities and take responsibility for the accuracy of the recorded information.

3. Heads of conciliation teams shall keep and urge the recording in monitoring registers of grassroots conciliation activities.

Chapter IV

FINANCIAL SUPPORT FOR GRASSROOTS CONCILIATION WORK AND CONCILIATORS

Article 12. Funds for grassroots conciliation work

The funds for grassroots conciliation work prescribed in Clause 1, Article 6 of the Law on Grassroots Conciliation are as follows:

1. Funds for the state management of grassroots conciliation shall be provided from the state budget according the current budget decentralization.

2. Provinces and centrally run cities that can balance their budgets shall arrange and use local budget revenues to provide financial support for grassroots conciliation work.

3. The central budget shall allocate additional funds for provinces that cannot yet balance their budgets to provide financial support for grassroots conciliation at the proposal of provincial-level People’s Committees.

4. The use of financial support for grassroots conciliation work must comply with the current budget decentralization.

Article 13. Contents of financial support for conciliation teams and conciliators

1. Expenses for purchase of stationery; purchase and copying of documents for activities of conciliation teams; organization of meetings, preliminary and final reviews of activities of conciliation teams.

2. Remuneration for conciliators on a case-by-case basis; supports for conciliators who, when carrying out conciliation activities, suffer accidents or risks affecting their health or life.

Article 14. Conditions for conciliators to receive remuneration on a case-by-case basis

1. The case or matter has been conciliated and terminated according to Article 23 of the Law on Grassroots Conciliation.

2. The conciliator does not violate Article 10 of the Law on Grassroots Conciliation.

Article 15. Procedures for payment of remuneration to conciliators

1. The conciliation team head shall make a dossier of request for payment to a conciliator, which comprises a request for payment to a conciliator, clearly stating the full name and address of the conciliator; name and address of the conciliation team; the amount requested for payment; contents of payment (including a list of cases and matters in case of requesting payment for many cases and matters); signature of the conciliator; and signature for certification of the conciliation team head, and produce the monitoring register of conciliation activities for comparison when necessary.

2. Within 5 working days after receiving a complete and valid dossier, the commune- level People’s Committee shall consider, decide and pay remuneration to a conciliator through the conciliation team. In case of non-payment, it shall issue a written reply clearly stating the reason.

3. Conciliation teams shall pay conciliators under decisions of the commune-level People’s Committee within 3 days after receiving the remuneration money.

Article 16. Cases of support for conciliators who, when carrying out conciliation activities, suffer accidents or risks affecting their health or life

1. Suffering an accident or a risk when conducting conciliation.

2. Suffering an accident or a risk on the way to or from the place of conciliation on a reasonable route and during a reasonable time.

Article 17. Supports for conciliators who, when carrying out conciliation activities, suffer accidents or risks affecting their health or life

1. A conciliator who, when carrying out conciliation activities, suffers an accident or a risk affecting his/her health, is entitled to the following supports:

a/ Necessary and reasonable expenses for treatment and rehabilitation of health or functions lost or decreased;

b/ Actual incomes lost or decreased; if the conciliator’s actual incomes are not stable or cannot be determined, to apply the average daily income of a salaried employee calculated by urban and rural area and non-state economic sector during the time of receiving treatment and recovering health and functions lost or decreased.

2. The family of a conciliator who dies when carrying out conciliation activities is entitled to one-off monetary support for the treatment of and care for the conciliator before he/she dies; the person who holds the burial service is entitled to financial support for this service.

Article 18. Procedures for support of conciliators who, when carrying out conciliation activities, suffer accidents or risks affecting their health or life

1. A dossier of request for support, made in 1 set, comprises:

a/ A written request for support by the conciliator or his/her family in case the conciliator dies, which is certified by the conciliation team head (in case the conciliator dies) or the Front Working Board head. This request must clearly indicate the full name and address of the requester and the reason for support;

b/ A written record of the condition of the conciliator suffering an accident, which is certified by the commune-level People’s Committee or the police office of the locality where the accident occurs (the original or certified copy, for a dossier sent by post; or a copy and the original for comparison, for a dossier submitted directly);

c/ The hospital discharge certificate, invoices for medical examination and treatment (the original or certified copy, for a dossier sent by post; or a copy or the original for comparison, for a dossier submitted directly);

d/ Valid documents and papers on the accident sufferer’s monthly salary-based actual income certified by the employer, which serve as a basis for competent state agencies to determine the actual income lost or decreased (the original or certified copy, for a dossier sent by post; or a copy and the original for comparison, for a dossier submitted directly), including the labor contract, the employer’s decision on salary increase or statement showing the actual income of the accident-suffering conciliator and other lawful documents proving actual incomes (if any);

dd/ The death certificate in case the conciliator dies (the original or certified copy, for a dossier sent by post; or a copy and the original for comparison, for a dossier submitted directly).

2. A conciliator or his/her family in case he/she dies shall submit a dossier of request for support provided in Clause 1 of this Article to the commune-level People’s Committee which has issued the decision recognizing the conciliator.

3. Within 3 working days after receiving a complete and valid dossier, the commune- level People’s Committee shall consider it and send a written request together with the dossier of request for support to the district-level People’s Committee.

4. Within 5 working days after receiving a complete and valid dossier, the district-level People’s Committee chairperson shall consider it and issue a decision on support. In case of refusal, he/she shall issue a written reply clearly stating the reason.

5. Within 3 working days after receiving a decision of the district-level People’s Committee, the commune-level People’s Committee shall pay the support money.

Chapter V

IMPLEMENTATION PROVISIONS

Article 19. Effect and transitional provisions

1. This Decree takes effect on April 25, 2014.

This Decree replaces the Government’s Decree No. 160/1999/ND-CP of October 18, 1999, detailing a number of articles of the Ordinance on Organization and Operation of Grassroots Conciliation.

2. Conciliation teams formed under the Ordinance on Organization and Operation of Grassroots Conciliation whose number and composition of members fail to comply with Clause 1, Article 12 of the Law on Grassroots Conciliation shall additionally elect conciliators according to the order and procedures specified in Article 8 of the Law on Grassroots Conciliation within 3 months after the effective date of this Decree.

Article 20. Implementation responsibilities

1. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall organize the implementation of this Decree according to their assigned functions, tasks and powers.

2. The Ministry of Finance shall assume the prime responsibility for, and coordinate with the Ministry of Justice in, guiding the estimation, management, use and settlement of state budget funds for grassroots conciliation work; and the procedures, dossiers and levels of remuneration for conciliators and supports for conciliators who, when carrying out conciliation activities, suffer accidents or risks affecting their health or life.-