Nghị quyết 02/2020/NQ-HĐTP áp dụng biện pháp khẩn cấp tạm thời của bộ luật tố tụng dân sự

RESOLUTION

ON GUIDELINES FOR CERTAIN REGULATIONS ON PROVISIONAL EMERGENCY MEASURES OF THE CIVIL PROCEDURE CODE

THE COUNCIL OF JUDGES OF THE PEOPLE’S SUPREME COURT

Pursuant to the Law on Organization of People's Court dated November 24, 2014;

For proper and consistent application of certain regulations on provisional emergency measures of the Civil Procedure Code dated November 25, 2015;

With the consent of Chief Procurator of the Supreme People’s Procuracy and Minister of Justice,

HEREBY RESOLVES:

Article 1. Scope

This Resolution provides guidelines for certain regulations on provisional emergency measures of the Civil Procedure Code No. 92/2015/QH13 dated November 25, 2015 (hereinafter referred to as the Civil Procedure Code).

Article 2. Application of provisional emergency measures specified in clause 1 Article 111 of the Civil Procedure Code

1. The involved parties or their lawful representatives or agencies, organizations or individuals instituting the cases defined in Article 187 of this Code may petition the Courts handling such cases to apply one or more provisional emergency measures provided for in Article 114 of the Civil Procedure Code in the following cases:

a) To temporarily settle urgent requests of the involved party directly related to the case which is being settled by the Court which needs to be resolved immediately, if delayed, which will adversely affect the life, health, honor, dignity and property of the involved party;

For example: A inflicted injuries to B. The Court is resolving a claim for damages due to health infringement. B needs money immediately to treat injuries at the hospital, so B asks the Court to apply provisional emergency measures to force A to perform in advance a part of the obligation to make restitution for the damage caused.

b) To take and protect evidence of a case which is being handled or settled by the Court in a case where the involved party obstructs the taking of evidence or the evidence is being destroyed or likely to be destroyed or difficult to take thereafter;

For example: A sues B for a dispute over the boundary of property adjacent to B, A requests the Court to apply a provisional emergency measure in form of prohibiting the change of the current status of the property in dispute and forcing B to maintain the current status of the boundary separating the land, not to be relocated.

c) To preserve the existing state and avoid causing an incurable damage, i.e. preserving the relationship and subject matters directly related to the case being settled by the Court;

For example: In a divorce case, a passbook saving account at the bank is registered under the name of the wife, the husband requests the Court to apply the provisional emergency measure to block the account in the name of the wife to secure the division of the marital property.

d) In order to secure the resolution of the case or judgment enforcement, i.e. to make sure that the grounds for resolving the case are sufficient so that when the court judgments or decisions are enforced, they fully meet the conditions for judgment enforcement.

For example: A is the plaintiff, asking the Court to compel B to pay A VND 1,000,000,000 on loan. In order to secure the judgment enforcement, A asks the Court to apply provisional emergency measures to freeze the property owned by B which is house X worth VND 900,000,000.

2. For cases where provisional emergency measures are applied, during the period of suspension of resolution of the cases, the judges assigned to settle the cases must monitor and consider the change or cancellation of provisional emergency measures already applied when there is one of the grounds specified at Points a. b, c, d, e, f, Clause 1, Article 138 of the Civil Procedure Code.

During the time of suspension of resolution of a case, if the court is requested to apply provisional emergency measures, the judge in charge shall consider applying the provisional emergency measures.

3. The courts shall not apply provisional emergency measures in resolving civil cases specified in the Part 6 of the Civil Procedure Code.

4. In case of considering petitions for recognition and enforcement in Vietnam of civil judgments or decisions of foreign courts, if the petitioners have petitions for application of provisional emergency measures, the people's courts which are settling the cases according to first-instance procedures shall apply Clause 6, Article 438 of the Civil Procedure Code for settlement.

Article 3. Application of provisional emergency measures and submission of lawsuit petitions specified in clause 2 Article 111 of the Civil Procedure Code

1. When having one of the following grounds, simultaneously with the filing of lawsuit petitions (lawsuit petitions must be made in accordance with Article 189 of the Civil Procedure Code), agencies, organizations, and individuals may request competent courts to issue decisions on application of provisional emergency measures specified in Article 114 of the Civil Procedure Code:

a) Due to the emergency situation, i.e. it needs to be resolved immediately, without delay;

b) It is necessary to immediately protect evidence in cases where the sources of evidence are being destroyed or likely to be destroyed or difficult to take thereafter;

c) Preventing possible serious consequences (material or mental consequences).

2. The courts competent to issue decisions on application of provisional emergency measures are courts competent to handle lawsuit petitions and settle cases according to Article 35, 36, 37, 38, 39 and 40 of the Civil Procedure Code.

3. Where the lawsuit petitions are under the jurisdiction of other courts, the courts which have received the lawsuit petitions immediately transfer the lawsuit petitions and petitions for application of provisional emergency measures to the courts competent to settle them.

4. Where the lawsuit petition already has contents to determine that the acceptance and settlement of the case is under the jurisdiction of the court which received the petition but needs further amendments to other contents, the court shall accept the application of the petition for application of provisional emergency measures immediately according to Clause 3, Article 133 of the Civil Procedure Code and the guidance in the Article 11 of this Resolution. The request for amendments to the lawsuit petition and acceptance of the case shall comply with Article 193 and 195 of the Civil Procedure Code.

Article 4. Cases of non-application of provisional emergency measures

1. Application of provisional emergency measures leading to the shutdown of enterprises or cooperatives.

For example: Application of provisional emergency measure to fully freeze the only account of the enterprise leading to the shutdown of the enterprise.

2. Application of prohibition of the transfer of property right over the property in dispute and  freezing of the property of the obligor as prescribed in clause 7 and clause 11 Article 114 of the Civil Procedure Code:

a) The secured property associated with the security that takes effect against a third party as prescribed in Article 297 of the Civil Code No. 91/2015/QH13 dated November 24, 2015
hereinafter referred to as the Civil Code), unless the petitioner for provisional emergency measure is also the secured party;

b) The property was auctioned by the auction house and the buyer has fully paid for purchase of the auctioned property, unless the auction result is cancelled in accordance with the provisions of law or otherwise agreed upon by the involved parties.

3. Application of measure to freeze an account at a bank or other credit institution as prescribed in clause 10 Article 114 of the Civil Procedure Code if the such account is used by the enterprise for discharge of liability to the credit institution as agreed in a credit agreement.

4. Application of provisional emergency measures for property in the following cases:

a) The property is banned from circulation as prescribed by law; the property serving national defense, security and public interests;

b) Personal property, including: Food for essential needs; drugs to be used for prevention and treatment; necessary items of disabled people, items used to care for sick people; common worship items according to local customs; necessary and not-so-great-value labor tools shall be used as essential means of living of the person who is liable to provisional emergency measure; essential living items;

c) Property of enterprises, cooperatives, business entities including: Drugs serving the prevention and treatment of employees; food, tools and other assets serving meals to workers; daycare centers, schools, health facilities and other equipment, means and assets belonging to these establishments, if the property is not intended for business; equipment, means and tools to ensure occupational safety, fire prevention and safety, prevention and control of environmental pollution.

Article 5. Application of provisional emergency measures at the Court’s discretion as specified in clause 3 Article 111 of the Civil Procedure Code

1. The Court shall issue decisions at their discretion to apply the provisional emergency measures only if all of the following conditions are met:

a) The application of such provisional emergency measure relates to the case being settled;

b) The application of provisional emergency measure is strictly necessary to meet urgent requirements and falls under the cases specified in Clauses 1, 2, 3, 4 and 5, Article 114 and Article 115 to Article 119 of the Civil Procedure Code;

c) The involved party’s failure to make a petition for application of provisional urgent measure is for the account of good reasons or objective hindrance.

For example: The Court shall issue a decision at their discretion to apply the provisional emergency measure of “Forcing the prior performance of part of the support obligation” as prescribed in clause 2 Article 114 and 116 of the Criminal Procedure Code when all the conditions below are met: The resolution of the case is related to the support request; it is deemed that such support is grounded; failure to perform part of the support obligation in advance will affect the health and life of the supported person and the involved party has not yet been able to exercise the right to request the court to apply provisional emergency measures.

2. In applying a provisional emergency measure at their discretion, the Court shall both comply with regulations of the Criminal Procedure Code and other relevant laws.

For example: In a case of paternity establishment, the plaintiff asks the Court to identify Mr. A as father of C (12 years old), mother of C is legally incapacitated,  and C has no one to nurture, care for, no relatives. Deeming that Mrs. D has sufficient conditions specified in Article 49 of the Civil Code to voluntarily assume the guardianship, the Court issues a decision to apply provisional emergency measure at its discretion to assign C to Mrs. D for nurture and care in the course of the Court's resolution of the case.

Article 6. Application of provisional emergency measures specified in points b and c clause 2 Article 113 of the Civil Procedure Code

1. The petitioner for provisional emergency measure shall specify the provisional emergency measure in the petition as prescribed in Article 114 of the Civil Procedure Code. In case the provisional emergency measure is not specific or inaccurate, the Court shall request the amendment or supplementation of the petition.

2. The Court applies a provisional emergency measure different from the provisional emergency measure requested stated in the petition.

For example: Mr. A filed a petition asking the Court to apply the provisional emergency measure of attachment of Mr. B's house X but the Court issued a decision to freeze Mr. B's property Y at the place of deposit.

3. The Court apply provisional emergency measures in excess of the provisional emergency measures requested stated in the petition in terms of scope, size, quantity.

For example: Company C has filed a petition requesting the Court to apply an emergency measure to temporarily block the amount of VND 1 billion in company D's account at bank Z, but the Court applies the provisional emergency measure to block VND 1 billion in the account of company D and apply an additional measure to block company D's Y assets at the place of deposit.

4. Where the involved party changes his/her request for application of provisional emergency measure, the Court shall request him/her to make an additional petition. Procedures for change or supplementation of provisional emergency measures shall comply with Article 133 of the Civil Procedure Code.

Article 7. Attachment of property in dispute specified in Article 120 of the Civil Procedure Code

The Court shall issue a decision to apply provisional emergency measure of attachment of property in dispute if all the conditions below are met:

1. The property in dispute is the subject matter of the dispute relationship being settled by the Court.

2. There are documents and evidence proving that the person holding the property in dispute disperses or destroys such property.

For example: There is a written evidence issued by the bailiff determining that the asset holder has smashed the disputed property.

Article 8. Prohibition or forcing the performance of certain acts specified in Article 127 of the Civil Procedure Code

Application of provisional emergency measure in form of prohibition or forcing the performance of certain acts in the following cases:

1. Affecting the resolution of the case is a case where the involved party or other agency, organization or individual commits or does not commit one or several acts of obstructing the process of taking documents and evidence or other acts that cause prejudice to the resolution of the case.

For example: In an appraisal visit, the defendant, Mr. B, locked the door to prevent the appraisal. At the request of the plaintiff, the Court may apply a measure to force Mr. B to open the door for the appraisal visit.

2. Affecting the legitimate rights and interests of other relevant people in a case being settled by the Court means the affected person is not the involved party in the case but the performance or non-performance of one or several acts of the involved party or agency or organization, other individual affects the rights and interests of such person.

Article 9. Prohibition of the obligors from leaving Vietnam specified in Article 128 of the Civil Procedure Code

1. The exit prohibition may apply if there are two grounds below:

a) The person banned from entry is the involved party who is being asked by another involved party to perform his/her obligations;

b) His/her exit affects the resolution of the case, the interests of the State, the legitimate rights and interests of other agencies, organizations and individuals or to secure the judgment enforcement.

For example: The Court is handling the case, Mr. A initiated a lawsuit asking Mr. B for compensation of ten billion dong, Mr. B has no representative, no property in Vietnam. Mr. B  has applied for exit procedures, so Mr. A asked the Court to apply urgent measure to temporarily ban Mr. B from exit.

2. For foreigners, the courts shall not apply emergency measure to temporarily ban from exit to obligees but apply measures to postpone exit, extend the suspension of exit or relieve the suspension of exit as prescribed in Article 28 and Article 29 of the Law on Entry and Exit , transit and residence of foreigners in Vietnam.

Article 10. Procedures for application of provisional emergency measures specified in clause 2 Article 133 of the Civil Procedure Code

1. In cases where the Court receives the petition for the application of provisional emergency measures before the opening of the court session, the following actions shall be taken:

a) Within 03 working days from the date of receipt of the petition for the application of provisional emergency measures, the judge must consider the petition and accompanying documents and evidence proving the necessity of application of the temporary emergency measures. If a petition for application of provisional emergency measures does not contain the contents specified in Clause 1, Article 133 of the Civil Procedure Code, the Judge may request amendments and supplementation of the petition. If the evidence to support the petition for the application of provisional emergency measures is not sufficient, the Judge will request them to provide additional documents and evidence within 24 hours from the time of receiving the request of the Judge. The Judge can also ask for their opinion.

The Judge may ask the person subject to the provisional emergency measures to present an opinion prior to making a decision if such presentation guarantees the correct decision-making and does not interfere with the implementation of the decision on application of the provisional emergency measures. The Judge may not request the person subject to the provisional urgent measure to present their opinions in the case of the application of the provisional emergency measures at the request of the intellectual property right holder as provided for in Clause 2, Article 206 of the Intellectual Property Law;

b) After considering the petition, documents, evidences and listening to the presentation of the petitioner or the person subject to the application of provisional emergency measures (if any), if the request for application of urgent measures is accepted as specified in Clauses 1, 2, 3, 4, 5, 9, 12, 13, 14 and 17, Article 114 of the Civil Procedure Code, the Judge shall issue a decision to immediately apply the provisional urgent measure; if accepting the request for application of provisional emergency measures specified in Clauses 6, 7, 8, 10, 11, 15 and 16, Article 114 of the Civil Procedure Code, the Judge shall force the petitioner to furnish security. Immediately after the person presents the evidence that the security has been taken as prescribed in Clause 1, Article 136 of the Civil Procedure Code, the Judge shall issue a decision to immediately apply the provisional emergency measure.

2. Where the Trial Panel receives the petition for the application of provisional emergency measures at the court session, the Trial Panel shall consider, discuss and settle it in the court room, the Judge shall resolve as follows as the case may be:

a) If accepting the request for application of the provisional emergency measure and the petitioner does not have to furnish security, the Trial Panel shall immediately issue a decision to apply the provisional emergency measures;

b) If there are grounds to apply the provisional emergency measures and the petitioner has to furnish security, the Trial Panel shall issue a decision to apply the provisional emergency measures right after that person presents evidence that the security has been completely provided for as provided for in Clause 1, Article 136 of the Civil Procedure Code;

c) If documents and evidence proving the need for application of provisional emergency measures are insufficient, the Trial Panel shall suspend the court hearing as prescribed at Point c, Clause 1, Article 259 of the Civil Procedure Code within 02 working days and request the petitioner to provide additional evidence;

d) If the petition for application of provisional emergency measures is not accepted, the Trial Panel must immediately notify the petitioner in the court room and be recorded in the court session minutes.

Article 11. Procedures for processing petitions for application of provisional urgent measures and submission of lawsuit petitions specified in clause 3 Article 133 of the Civil Procedure Code

1. In case a petition for the application of provisional emergency measures is received as provided for in Clause 3, Article 133 of the Civil Procedure Code outside working hours (including days off), the recipient must report immediately with the Chief Justice of the Court. The Chief Justice of the Court shall immediately assign a Judge to accept and settle the petition.

2. Within 48 hours from the time of receiving the petition for the application of provisional emergency measures, the Judge must consider the lawsuit petition and accompanying evidence to determine whether the petition falls within the jurisdiction of the Court. If the lawsuit petition falls within its jurisdiction, the Court shall continue to consider and settle the petition for application of provisional emergency measures under the guidance in Clause 1, Article 10 of this Resolution. If the lawsuit petition does not fall under its jurisdiction, the lawsuit petition, petition for application of provisional emergency measures and accompanying evidence shall be returned to them.

Article 12. Determination of equivalent value upon freezing accounts, assets as prescribed in clause 4 Article 133 of the Civil Procedure Code

In the course of application of provisional emergency measures specified in Articles 124 and 125 of the Civil Procedure Code, the following should be distinguished:

1. The determination of the property obligations which the person subject to the provisional emergency measure is obliged to perform must be based on the defendant's lawsuit petition, counter-petition and independent claim of the person with related interests and obligations;

2. The Court may only freeze accounts and property with a value equal to or lower than the property obligations that the person subject to the provisional emergency measure is obliged to carry out. The petitioner for application of provisional emergency measures is obliged to prove the value of the frozen account or property. The petitioner for the application of provisional emergency measures is responsible for the truthfulness and accuracy of the documents relating to the determination of the value of the property and the account to be frozen. The Court shall take account of documents, evidence and relevant legal provisions to determine the value of the property subject to the application of provisional emergency measures;

3. Where the property requested to be frozen is indivisible property (which cannot freeze part of the property) with a value higher than the property obligation that the person subject to the provisional emergency measures has obligations to comply with the petition, the Court shall explain to the petitioner so that they make a petition for the application of property freezing or other provisional emergency measures. If petitioner still keeps the petition, the Court shall, pursuant to Clause 4, Article 133 of the Civil Procedure Code, refuse the petition for application of provisional emergency measures.

Article 13. Forced furnishing of security specified in clause 1 Article 136 of the Civil Procedure Code

1. The Judge or Trial Panel shall issue a decision to apply the provisional emergency measures when the petitioner has completely provided for a security at a bank, credit institution or court. A Judge's or Trial Panel's decision on enforcement of security takes immediate effect.

2. In order to impose an amount of money, precious metal, gemstones or papers equivalent to loss or damage that may arise as a result of the improper application of the provisional emergency measure, the Judge or the Trial Panel must anticipate and temporarily calculate the actual damage that can actually occur but not less than 20% of the provisional value of the property subject to the provisional emergency measures, unless there is clear evidence that the loss or damage is less than 20% of the provisional value of the property subject to the provisional emergency measure.

3. The anticipation and provisional calculation of possible actual damage depends on each specific provisional emergency measure, each specific case and is done as follows:

a) The Judge or Trial Panel shall request the petitioner to apply provisional emergency measures and temporarily calculate the actual damage that may occur. In case the opinions of the person subject to the application of the provisional emergency measures are sought as guided in Clause 1, Article 10 of this Resolution, they are requested to estimate and temporarily calculate the actual damage that may occur;

b) The estimated and provisional actual damage that may occur must be made in writing, clearly stating the damage amount and possible damage level, the grounds and rationale for the estimate and provisional calculation; in the court session, it is not required to be made in writing but must be recorded in the Court's minutes;

c) The Judge or the Trial Panel considers the estimate and provisional actual damage that may occur, based on the provisions of relevant legal documents to impose an amount of money, precious metal, gems or valuable papers and compel the petitioner for the application of provisional emergency measures to furnish security.

For example: Mr. A holds a truck, Mr. B assumes that that truck belongs to both of them (A and B). Mr. B thinks that Mr. A intends to sell the truck, so he requests the Court to apply an emergency measure to temporarily seize the property in dispute which is the truck. After Mr. A estimates and temporarily calculate the actual damage that may occur due to improper application of the provisional emergency measure (if the court later decides that the truck belongs to Mr. A), the imposition of an amount of money, precious metals, gems or valuable papers, depending on each specific case as follows:

In case Mr. B has grounds to believe that Mr. A sells the truck (with a copy of the sale and purchase contract), the sale and purchase contract, the provisions of the law on sale and purchase contracts shall prevail for the imposition. Assuming that there is a deposit in the contract that if the truck is not delivered in due date, the buyer will not buy and the seller must pay the buyer a deposit and an amount equal to the deposit; if the truck is distrained and still handed over to Mr. A for management and use, the actual damage that may occur is only a deposit amount; if the truck is distrained and handed over to a third party to preserve, the actual damage that may occur also includes remuneration, payment of maintenance costs to the custodian and damage caused by non-operation of the use of the truck.

In case Mr. B only has information that Mr. A wants to sell the truck and the truck is distrained and assigned to a third person to manage, the actual damage that may occur includes remuneration and payment of preservation expenses for the custodian and the damage caused by non-operation of the car; if the distrained truck is still handed over to Mr. A for management and use, no actual damage occurs.

Article 14. Forced furnishing security in form of sums of money, precious metals or valuable papers specified in clause 2 Article 136 of the Civil Procedure Code

1. As a general rule, sums of money, precious metals, gemstones or valuable papers must be put into blocked accounts at banks of where the Court making decisions to apply provisional emergency measures are located. If the place where such Court is located has many banks, the person required to furnish security may select one of those banks and notify the name, the address of the bank he/she chooses to the Court to make a decision on forced furnishing of security.

In case the person who must furnish security has an account or has money, precious metals, gems, valuable papers deposited at the bank where the head office of the court which decides to apply the provisional emergency measure is located and he/she request the Court to block part of the account or part of the money, precious metals, gems, and valuable papers deposited at that bank equivalent to their property obligations, the Court shall accept it.

2. The time limit for furnishing security is distinguished as follows:

a) For the case specified in Clause 1, Article 111 of the Civil Procedure Code, for the period from the acceptance of the case to the opening of the court hearing, the time limit for furnishing security is 2 working days from the time the Court issues the decision on forced furnishing security. In cases where there is a grounded reason, such time limit may be longer, but in all cases it must be done before the date the court opens the court hearing.

If at the court session, the furnishing security shall commence from the time when the Trial Panel issues a decision to force the furnishing security, but must present evidence that the security has been furnished before the Trial Panel enters the deliberation room to deliberate.

In case of receiving a request for application of provisional emergency measures at the court hearing, the Trial Panel shall consider, discuss and settle it in the court room. If the Trial Panel accepts the involved party's request to apply the provisional emergency measure and that is a case where security is required and he/she needs time to furnish the security and he/she cannot appear in court, the Trial Panel shall suspend the court session within 2 working days as provided for at Point b, Clause 1, Article 259 of the Civil Procedure Code.

b) For cases prescribed in Clause 2, Article 111 of this Code, the time limit for furnishing security provided for in this clause must not exceed 48 hours from the time of filing the petition and accepted by the Court.

3. If the security is furnished on a holiday or a day off, the Court shall accept only Vietnamese Dong (VND) and proceed as follows:

a) The judge requests the Court cashier to come to the headquarters of the Court and invite additional witnesses;

b) The depositor and the Court cashier shall give and receive each type of cash. The judge shall make a record of the handover and seal it, which must fully specify and describe the correct circumstance in the record;

c) Necessary measures must be taken to preserve them while the security is furnished at the Court.

The judge requires the depositor, the Court cashier and the witness to appear on the next working day after the end of the holiday or day off to open the seal and return the money;

d) On the next working day after the end of the holiday or day off, those who were present when sealing shall witness the opening of the seal. The cashier and depositor shall give and receive each type of cash according to the handover record and seal. The judge must make a record of opening the seal and re-handover;

dd) The person who must furnish security shall bring such money to the blocked account at the bank under the supervision of the Court cashier. The Court cashier requires the bank to hand over the record of receipt of the money to the blocked account at the bank and submit it to the Judge for keeping in the case file.

In case the person who must furnish security does not appear in court, the judge will invite more witnesses (possibly the people's jurors) to the Court to witness the opening of the seal and assign the court cashier to deposit money into a blocked account at the bank. The judge must make a record on the opening of the seal in the absence of the person who must  furnish security and assign the court cashier to do the deposit. The person who must furnish security shall be held responsible for the failure to comply with the Court's request;

e) The sealing and opening of the seal must comply with the provisions of law. The record of handover and sealing, the record of opening the seal and the re-handover must be made in two copies and signed by the judge, the depositor, the court cashier and the witness. One copy is given to the depositor and one is kept in the case file.

Article 15. Change and supplementation of provisional emergency measures specified in Article 137 of the Civil Procedure Code

1. Where the petitioner for application of provisional emergency measures files a petition requesting the Court to change or supplement other provisional emergency measures, the procedures for change or supplementation of other provisional emergency measures comply with Article 133 of the Civil Procedure Code and instructions in Articles 10, 11 and 12 of this Resolution.

2. In case of change of the provisional emergency measure but the petitioner does not have to furnish security or is required to furnish security less than the one that he/she has furnished, the Court shall consider and decide to allow him/her to receive back all or part of the money, precious metals, gems or valuable papers that he/she has deposited in the blocked account at the bank in accordance with the Court's decision, except for the case specified in Clause 1, Article 113 of the Civil Procedure Code.

Article 16. Settlement of complaint, motion for decisions on application, change or cancellation or non-application, non-change, non-cancellation of provisional emergency measures specified in Clauses 1 and 2, Article 141 of the Code Civil Procedure

1. After receiving the involved parties 'complaint or procuracy motion for a decision on application, change or cancellation of provisional emergency measure or the Judge's failure to issue a decision to apply or change and, to cancel the provisional emergency measure, the Chief Justice of the Court shall immediately transfer it to the Judge who issued the decision against which the complaint or motion is made.

For the case of complaint or motion on the application of exit suspension, extension of exit suspension, or clearance of exit suspension as guided in Clause 2, Article 9 of this Resolution, within 03 days after receiving the complaint or proposal, the Chief Justice shall, at his/her discretion, consider and issue one of the decisions specified in Clause 3 of this Article.

2. Within 24 hours from the time of receiving the complaint or motion, the judge must consider and proceed as follows:

a) If the judge finds that the application, change or cancellation of a provisional emergency measure or the failure to apply, change or cancel the provisional emergency measure is incorrect, the Judge shall issue a decision to change or supplement the provisional emergency measure; to cancel the provisional emergency measure already taken or make a decision to take the provisional emergency measure; at the same time report the results to the Chief Justice of the Court;

b) If the Judge finds that the application, change or cancellation of a provisional emergency measure, or non-application, change or cancellation of provisional emergency measure are justified, the Judge shall report the foundation of his/her decision-making to the Chief Justice of the Court for consideration.

3. Within 48 hours from the time of receiving the judge's report, the Chief Justice of the Court must consider and settle the complaint or motion and issue one of the following decisions:

a) Reject the complaint of the involved party, motion of the procuracy if the complaint or motion is unfounded.

b) Accept the complaint of the involved party, motion of the procuracy if the complaint or motion is grounded. In this case, the Chief Justice of the Court must decide to change or supplement provisional emergency measures; to cancel the provisional emergency measure already taken or decide to take the provisional emergency measure.

4. The Chief Justice' decision on settlement of complaint, motion shall be the final one and must be issued or sent immediately according to the provisions of Clause 2, Article 139 of the Civil Procedure Code.

Article 17. Settlement of complaint, motion about decision on application, change or cancellation or non-application, non-change, non-cancellation of provisional emergency measure specified in Clause 3, Article 141 of the Code Civil Procedure

1. Before the opening of the court hearing, the Judge shall issue a decision on application, change or cancellation of a provisional emergency measure or non-application, non-change or non-cancellation of provisional emergency measure against which the complaint or motion is made but has not yet been considered and settled by the Chief Justice of the Court. At the court session, if the involved party or procuracy makes a request for settlement of such complaint or motion, the Trial Panel shall explain to the involved party that, according to Article 140 of the Civil Procedure Code, only the Chief Justice in charge shall have the authority to consider and settle such complaint or motion; at the court hearing, they have the right to request the Trial Panel to change or supplement provisional emergency measures; cancel the provisional emergency measure already taken or issue a decision to apply provisional emergency measure in accordance with the general provisions of the Civil Procedure Code and the guidance in this Resolution.

2. In case where the involved party makes complaint or the procuracy makes motion on the decision on application, change or cancellation of the provisional emergency measures or non-application, change or cancellation of the provisional emergency measure at the court hearing, the Trial Panel shall consider, discuss and approve in the court room.

3. If the Trial Panel does not accept the complaint or motion, it is not required to issue a written decision but must publicly announce it at the court session of rejection, clearly state the reasons and must be recorded in the minutes of the court session. If the Trial Panel accepts the complaint or motion, its decision must be made in writing. The Court must issue or send this decision according to the provisions of Clause 2, Article 139 of the Civil Procedure Code. The Trial Panel's decision on settlement of complaint or motion shall be the final one.

Article 18. Decision on application, change and cancellation of provisional emergency measure specified in Article 291 of the Civil Procedure Code

1. In the stage of preparation for appellate trial or at appellate court session, the settlement of any request to the appellate court for application, change or cancellation of the provisional emergency measure shall comply with the provisions of the corresponding articles of Chapter VIII "Provisional emergency measures" of the Civil Procedure Code and the guide in this Resolution.

2. In cases where the involved party files an appeal against the first-instance judgment or ruling with the first-instance Court and in the appeal, the involved party complains about the decision on application, change or cancellation of the provisional emergency measure of the first-instance court, the first-instance court shall notify the involved party that the first-instance court has no jurisdiction to settle such a complaint.

In cases where the involved party files an appeal against the first-instance judgment or ruling with the appellate court and in the appeal, the involved party complains about the decision on application, change or cancellation of the provisional emergency measure of the first-instance court, the appellate court shall explain to the involved party that the appellate court has not accepted the case under appellate procedure so it has no jurisdiction to settle such a complaint about application, change or cancellation of the provisional emergency measure of the first instance court, After the appellate court accepts the case according to appellate procedures, the appellate court shall settle it upon request.

Article 19. The declaration of the application of provisional emergency measures in the Court's judgment

1. The Court shall apply, change or cancel provisional emergency measures prior to the opening of the court hearing or at the court hearing with a separate decision and pronounced in the judgment. The declaration in the judgment is guided in Clauses 2 and 3 of this Article.

2. In case there is no ground to change or cancel the provisional emergency measure already taken, the Trial Panel shall declare in the judgment as follows: “Continuing to maintain the provisional emergency measure in the Decision No. dated .... of the People's Court .... on the application of provisional emergency measure .... ” The statement of provisional emergency measure in the judgment shall not be appealed or protested. The cancellation of provisional emergency measure shall comply with Chapter VIII of the Civil Procedure Code.

For example: Example: Before the opening of the court hearing, the judge assigned to settle the case issued Decision No. 02/2020/QD-BPKCTT dated December 5, 2020 of the People's Court of district A applying provisional emergency measures in form of attachment of property to secure judgment enforcement in case X. At the court hearing to resolve case X, the Trial Panel finds that there are no grounds to cancel this provisional emergency measure, so the Trial Panel declares in the judgment as follows: “Continuing to maintain provisional emergency measure in Decision No. 02/2020/QD-BPKCTT dated December 5, 2020 of the People's Court of District A on the application of provisional emergency measure in form of attachment of property in dispute”.

3. Where the content of the decision on application of provisional emergency measure has been settled in the court judgment, the Trial Panel shall declare in the judgment as follows: “From the date this judgment takes legal effect by law, the decision on application of provisional emergency measure No ... dated ... of the People's Court ... in the process of settling the case is canceled ”.

For example: For example: Before the hearing, the judge assigned to resolve the case has issued a decision to take provisional emergency measure to grant temporary custody of the child to the father. At the court hearing, the Trial Panel grant the official custody of the child to the mother. In this case, the content of the decision on application of provisional emergency measure has been settled in the court judgment. Therefore, the decision on provisional emergency measure to grant temporary custody of the child to the father will be canceled from the date that such judgment of the Court takes legal effect.

Article 20. Entry into force

1. This Resolution is passed by the Council of Judges of the Supreme People's Court on September 24, 2020 and takes effect on December 1, 2020.

2. This Resolution replaces Resolution No. 02/2005/NQ-HDTP dated April 27, 2005 of the Council of Judges of the Supreme People's Court on guidelines for certain provisions in Chapter VIII “Provisional emergency measures” of the Civil Procedure Code.

3. Issued together with this Resolution are the following forms:

a) Form No. 01-DS Decision on forced furnishing of security (for judges)

b) Form No. 02-DS Decision on forced furnishing of security (for the Trial Panel of First Instance and Appellate Trial Panel)

c) Form No. 03-DS Decision on application of provisional emergency measures (for judges)

d) Form No. 04-DS Decision on application of provisional emergency measures (for the Trial Panel of First Instance and Appellate Trial Panel)

dd) Form No. 05-DS Decision on change of provisional emergency measures (for judges)

e) Form No. 06-DS Decision on change of provisional emergency measures (for the Trial Panel of First Instance and Appellate Trial Panel)

g) Form No. 07-DS Decision on cancellation of provisional emergency measures (for judges)

h) Form No. 08-DS Decision on cancellation of provisional emergency measures (for the Trial Panel of First Instance and Appellate Trial Panel)

4. Forms from Form 15-DS to Form No. 22-DS, issued together with Resolution No. 01/2017/NQ-HDTP dated January 13, 2017 of the Council of Judges of the Supreme People's Court cease to be effective on the effective date of this Resolution.

5. Difficulties that arise during the implementation of this Circular should be reported to the Department of Legal and Science management affiliated to the Supreme People’s Court for consideration./.

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