Pham Diem
State and Law Institute of Vietnam
Civil procedures means the process of solving civil cases or matters, starting from the time legal proceedings are instituted and the cases or matters are dealt with and ending when the judgments or court rulings are enforced and the rights and interests of individuals, organizations or the State are protected, recovered or identified.
In Vietnam, civil procedures were for the first time defined in a systematic manner in the 1989 Ordinance on Procedures for Settlement of Civil Cases, which was later amended and renewed in the 2004 Civil Procedure Code.
Instituting legal proceedings against, and dealing with, civil cases
These constitute the initial stage of the process of civil procedures. This stage begins when a subject of the lawsuit right initiates his/her lawsuit and ends when a competent court deals with the case.
According to the Ordinance on Procedures for Settlement of Civil Cases, individuals and legal persons may file lawsuits at a court to protect their lawful rights and interests against infringements. In some cases prescribed by law, People’s Procuracies also have the right to request courts to settle civil cases, which is called the right to institute legal proceedings against civil cases. When cases fall under the instituting right of People’s Procuracies which, however, decline to institute legal proceedings against the cases, social organizations will have the right to request courts to settle such cases to protect common interests, which is called the right to institute lawsuits for common interests.
So, under the Ordinance on Procedures for Settlement of Civil Cases, there are four types of holders of the lawsuit right, namely individuals, legal persons, social organizations and People’s Procuracies, and lawsuits are classified into lawsuit institution and legal proceeding institution.
When the country’s first-ever Civil Procedure Code was promulgated in 2004, the rights to institute civil lawsuits are classified into:
- The right to institute lawsuits to protect one’s own lawful rights and interests. Individuals, agencies and organizations (economic or social organizations) may initiate lawsuits by themselves or through others to protect their own lawful rights and interests; and,
- The right to institute lawsuits to protect lawful rights and interests of others, public interests and state interests. Concretely, the population, family and children agency or the women’s union may take legal action related to marriage and family cases; trade unions are entitled to institute labor lawsuits to protect the rights and interests of labor collectives; and agencies and organizations may, within the ambit of their tasks and powers, file lawsuits to protect public interests or state interests.
So, the legal proceedings-instituting right of People’s Procuracies no longer exists in the Civil Procedure Code, which now belongs to agencies and organizations, including People’s Procuracies. Meanwhile, the holders of the civil lawsuit right in the Civil Procedure Code are broadened and specified. These new provisions of the Civil Porcedure Code aim at nothing but protecting all civil rights and interests.
Lawsuit institution must satisfy the following conditions:
i) The lawsuit institutor has the right to institute lawsuit. For example, an individual instituting a lawsuit must have the civil procedure act capacity and concurrently have his/her interests infringed upon; a legal person instituting a lawsuit must acquire the full legal entity status.
ii) The statute of limitations for the lawsuit has not yet expired.
iii) The case has not yet been settled by a court with a legally effective judgment or ruling.
iv) If the case is required to be settled in advance by a competent state body, the settlement decision of such body is required.
v) The case falls under the jurisdiction of the court.
A lawsuit is instituted in the form of a statement, which is supplied together with evidence and necessary documents to the court for timely and objective settlement.
Accepting the statement is the first task of a court in legal proceedings. When examining and dealing with a case, the court may return the statement if the lawsuit fails to meet all the above five conditions. If deeming that a civil case does not fall under its jurisdiction, the court which has accepted such case for settlement should issue a decision to transfer it to a competent court for settlement.
Investigation of civil cases
By accepting a civil case for settlement, the court has officially confirmed its responsibility to settle the case and will conduct investigations to collect, study and initially assess evidence for proper settlement of the case. Investigations can be conducted throughout the process of trial preparation. When concluding investigations, the court should make one of the following decisions:
1. To suspend the settlement of the case in one of the following circumstances:
- The involved parties have died, for individuals; or been merged, separated or dissolved, for agencies or organizations, while no other individuals, agencies or organizations take over their procedural rights and obligations.
- Either party being an individual has lost his/her civil act capacity meanwhile his/her representative at law is unidentifiable.
- The involved parties’ lawful representatives have terminated without replacements.
- Pending the results of other relevant cases or prior settlement by other agencies or organizations as required by law.
2. To cease the settlement of the civil case in one of the following circumstances:
- The plaintiff or defendant has died while his/her rights and obligations have not been taken over by anyone.
- Agencies or organizations are dissolved or go bankrupt while no individuals, other agencies or organizations take over their procedural rights and obligations.
- The lawsuit institutor withdraws the statement with the court’s approval.
- Agencies or organizations withdraw their claims in case of absence of the plaintiff or the plaintiff requests not to continue settling the cases.
- The involved parties have mutually agreed to request the court to stop settling the cases.
- The plaintiff is still absent even though he/she has been lawfully summoned twice by the court.
3. To recognize the agreement between the involved parties (successful conciliation).
4. To adjudicate the case.
Conciliation of civil cases
Through conducting investigations and completing the case file, the court is able to grasp the contents and causes of the case and conditions giving rise to the case as well as the inmost feelings and sentiments of the involved parties. If having no grounds for suspending or ceasing the settlement of the case, the court must conduct conciliation before bringing the case to trial.
Conciliation is compulsory and is regarded as a typical principle in civil procedures. This stems from the involved parties’ right to self-determination and the court’s responsibility to protect the involved parties’ rights and interests. The involved parties are subjects of conciliation, having full rights to voluntarily agree with each other on the settlement of their dispute. Courts are not subjects of conciliation relations, but play a particularly important role as intermediaries to assist the involved parties in conducting negotiations.
For cases against which legal proceedings are instituted by state bodies or social organizations, such bodies or organizations have no right to reconcile with defendants as they are neither plaintiffs nor subjects of civil dispute relations.
Conciliation is legally valid only when the following both conditions are fully met:
- It is conducted voluntarily by the involved parties without any coercion.
- Agreements between the involved parties are not contrary to law.
Civil conciliation has a very important and practical significance. If it succeeds, court sessions are not required, skipping a prolonged and complex procedural stage and saving time and money for the State and people while contradictions between involved parties are resolved. Even when conciliation fails, it also helps the court understand more clearly the case’s circumstances, the inmost feelings and thoughts of the involved parties and, as a result, come up with proper ways to settle the case in the course of adjudication.
Court sessions
If there are no grounds for suspending or ceasing the civil case, or conciliation fails, the court will decide to bring the case to trial. Court trials are conducted at two levels: first-instance and appellate.
First-instance trial is the most important trial level as it directly dwells on the entire contents of the case. First-instance trial falls under the jurisdiction of district- and provincial-level courts. As the market economy has strongly developed in the country, the number of civil cases is on the constant rise; hence, the jurisdiction of district-level courts has been broadened to adjudicate most of civil cases.
Meanwhile, appellate trial is neither automatic nor obligatory. It will be conducted only upon appeals or protests against first-instance judgments or rulings which have not yet taken legal effect. It aims to ensure the principles of legality and democracy in legal proceedings.
The involved parties and their representatives or state bodies or social organizations instituting lawsuits for common interests all have the rights to appeal while the procuracies of the same or immediate higher level can protest against first-instance civil judgments or rulings which have not yet taken legal effect.
The jurisdiction to conduct appellate trials rests with the courts immediate superior to the first-instance courts. Concretely, provincial-level courts are competent to conduct appellate trials over first-instance judgments and rulings of district-level courts. The Supreme People’s Court is competent to conduct appellate trials over first-instance judgments and rulings of provincial-level courts. Similarly, the jurisdiction of provincial-level courts has been constantly broadened to cover almost all appellate trials.
While a first-instance judgment or ruling takes effect 15 days after it is pronounced, an appellate judgment or ruling takes immediate effect.
A court may also open cassation sessions and reopen procedures. Cassation means re-trial of a case or a legally effective ruling which is protested against due to discovery of mistakes or violations of law on procedures. Reopening means re-trial of a case or a legally effective ruling which is protested against due to discovery of new important circumstances.
The president of the Supreme People’s Court and the chairman of the Supreme People’s Procuracy have the right to protest against judgments and rulings of courts at all levels. Presidents of provincial-level courts and chairmen of provincial-level procuracies may protest against judgments and rulings of district-level courts.
Cassation and reopening of procedures are special adjudicating procedures, helping inspect and supervise law observance in adjudicating activities, correct errors of legally effective judgments or rulings and protect justice and social equality. Cassation and reopening of procedures do not constitute a third adjudication level.
Enforcement of civil judgments and rulings
Enforcement of effective judgments and rulings is the final stage of civil procedures.
Agencies competent to enforce civil judgments include the Civil Judgment Enforcement Department of the Justice Ministry and the Civil Judgment Enforcement Sections of provincial-level Justice Services. If debtors do not voluntarily perform their obligations, they will be coerced by judgment enforcement bodies. At present, a great number of civil judgments cannot be enforced for various reasons. Therefore, judgment enforcement work has been actively renewed in Vietnam, which is considered a crucial and urgent judicial reform task in the building of a civil society.
Procedures for settlement of civil matters
Civil matters constitute a new institution in the 2004 Civil Procedure Code.
A civil matter arises when an individual, agency or organization requests a court to recognize or not to recognize a legal event as a ground giving rise to civil, marriage and family, business, trade or labor rights and obligations of his/her/its own or of another, or requests a court to recognize his/her/its civil, marriage and family, business, trade or labor rights and obligations.
Before the Civil Procedure Code was promulgated, such civil matters were not so numerous and often dealt with by administrative agencies through administrative procedures. Meanwhile, the 1989 Ordinance on Procedures for Settlement of Civil Cases largely prescribed the procedures for settlement of civil disputes. Yet, since Vietnam shifted to a multi-sectoral market economy and a civil society, civil matters constantly increase in number and develop in a complicated manner. They must be settled through judicial procedures other than administrative procedures. Consequently, the Civil Code has distinguished civil disputes from civil matters and subjected them to different procedures.
The procedures prescribed in the Civil Procedure Code for settlement of civil matters are much simpler than those for settlement of civil cases. Upon request of parties concerned, a court will open meeting sessions (not court sessions) to handle them. First-instance court rulings will be settled through appellate procedures if they are appealed or protested.
The Civil Code has also specified the following procedures for settling several civil matters:
- Request to declare a person losing his/her civil act capacity or having civil act capacity restricted.
- Request to issue notices of search of a person absent from his/her residence place.
- Request to declare a person missing.
- Request to declare a person dead.
- Civil affairs related to activities of Vietnamese commercial arbitration.
The above specific civil matters are often directly related to civil rights and obligations, civil disputes and the settlement of civil cases.-