PHAM DIEM
State and Law Institute of Vietnam
Civil procedure-conducting bodies and participants and their jurisdictions, rights and interests are basic institutions of Vietnam’s civil procedure law.
In the 1989 Ordinance on Procedures for Settlement of Civil Cases, these institutions were arranged in three chapters: Chapter II: Jurisdiction of People’s Courts; Chapter III: Composition of the trial panel; change of judges, people’s jurors, procurators, court clerks, surveyors and interpreters; and Chapter IV: Proceedings participants.
Yet, in the 2004 Civil Procedure Code, they were prescribed in four separate chapters: Chapter III: Jurisdiction of Courts; Chapter IV: Procedure-conducting bodies, procedure-conducting persons and change of procedure-conducting persons; Chapter V: Composition of a panel for settlement of a civil case or matter; and Chapter VI: Proceedings participants.
The structure of the above chapters of the Civil Procedure Code has clearly separated and further concretized the contents of the institutions, raising the responsibility of judicial bodies and officials and further clarifying the rights and obligations of involved parties and proceedings participants.
Civil jurisdiction of courts
Among the procedure-conducting bodies, courts constitute the major ones. Therefore, both the 1989 Ordinance on Procedures for Settlement of Civil Cases and the 2004 Civil Procedure Code devoted a separate chapter to define the courts’ jurisdiction, including general jurisdiction and specific jurisdiction of courts at different levels.
With regard to general jurisdiction, the Ordinance on Procedures for Settlement of Civil Cases provided that courts are competent to settle the following civil cases: disputes over ownership rights, contracts, compensation for damage outside contract or other disputes over rights and obligations under civil law between citizens and between legal persons.
Since Vietnam adopted the open-door and international integration policies and shifted to a market economy, recognizing various forms of ownership and the existence of various economic sectors, civil law relations have strongly developed in a diverse manner into civil cases and civil matters as classified by the 2004 Civil Procedure Code. Therefore, the courts’ jurisdictions are also divided into jurisdiction to adjudicate civil cases and jurisdiction to settle civil requests.
In addition, the Civil Procedure Code also specifically and comprehensively defines civil disputes to be settled by courts, including those newly arising and developing in civil life in the country such as disputes over land use rights, intellectual property rights and technological transfer. Concretely, courts are competent to settle disputes between individuals over Vietnamese nationality, disputes over property ownership, disputes over civil contracts, disputes over intellectual property and technological transfer, disputes over property inheritance, disputes over compensation for damage outside contract, disputes over land use rights and assets attached to land, disputes related to journalistic operations, and other civil disputes prescribed by law.
Courts are also competent to settle the following civil requests:
- Request for declaration of a person loosing his/her civil act capacity or having a restricted civil act capacity; cancellation of a decision to declare a person loosing his/her civil act capacity or a decision to declare his/her restricted civil act capacity;
- Request for issuance of a notice of search for a person absent from his/her residence place and management of his/her property;
- Request for declaration of a person missing, cancellation of a decision to declare a person missing;
- Request for declaration of a person dead or cancellation of a decision to declare a person dead;
- Request for recognition and enforcement in Vietnam a civil judgment or decision of a foreign court;
- Other civil requests prescribed by law.
With regard to the jurisdiction of courts at each level, district-level People’s Courts are competent to adjudicate most of civil cases falling under the general jurisdiction of courts.
According to the Ordinance on Procedures for Settlement of Civil Cases, district-level courts may settle according to first-instance procedures the cases specified in Article 10 of the Ordinance, excluding those falling under the jurisdiction of provincial-level courts.
Meanwhile, under the Ordinance, provincial-level People’s Courts are competent to settle according to first-instance procedures the following civil cases and matters:
- Civil cases involving parties being foreigners (persons without Vietnamese nationality) or Vietnamese in foreign countries (persons with Vietnamese nationality);
- Disputes over industrial property rights and copyright;
- Cases falling under the jurisdiction of district-level courts but picked up by provincial-level courts for trial, including cases where exist divergent opinions among local concerned bodies on the handling method; cases to which the application of law is complicated; cases where investigation and evidence collection face difficulties or complicated technical survey is required; and cases involving key local officials.
Under the 2004 Civil Procedure Code, district-level courts’ jurisdiction is substantially broadened to adjudicate most of civil disputes according to first-instance procedures. Meanwhile, provincial-level courts also adjudicate according to first-instance procedures particularly complicated cases.
With regard to the territory-based jurisdiction of People’s Courts, a general principle is upheld that courts competent to adjudicate cases must be those in localities where exist the most convenient conditions for settlement. Hence, Vietnamese law provides:
- Courts competent to conduct trial are courts of the defendants’ residence or working places, if defendants are individuals; or the defendants’ headquarters, if defendants are legal persons; unless otherwise provided for by law.
- For disputes over real estate, the competent courts will be those of the localities where such real property exists.
- In a number of cases, the competent courts will be courts of the plaintiff’s residence places, if so agreed upon by the involved parties.
Besides, the plaintiff have the right to choose courts in certain cases. If defendants’ residence places are not known or they have no residence places in Vietnam, the plaintiffs may request courts of the localities where exist the assets or where the defendants last reside to settle their disputes.
If a case arises from the operation of a legal person’s branch, the plaintiff may request the court of the locality where such legal person is headquartered or where such branch is located to settle the case. If claiming for alimony, the plaintiff may request the court of his/her residence place to settle the claim. If claiming compensations for loss of life or bodily injury, he/she may request the court of his/her residence place or the locality where the incident occurs or the court of the defendant’s residence place to settle the claim.
People’s procuracies can also act as procedure-conducting bodies. At the first-instance level, they participate in legal proceedings by instituting and investigating civil cases and joining agreements at court hearings. They may institute a number of cases or matters if nobody does so. They may request courts to investigate or investigate by themselves cases or matters and give their viewpoints on the settlement of cases at court hearings.
In appellate, cassation and review trials, the procuracies participate in legal proceedings by protesting civil judgments or rulings of courts and directly join in court hearings.
Particularly, the 2004 Civil Procedures Code provides for the first time comprehensive and specific responsibilities and powers of proceeding participants, including court presidents, judges, people’s jurors, court clerks, procuracy chiefs and members in order to ensure the fair and lawful settlement of cases and matters, and protect the legitimate interests of involved parties.
Civil procedure participants
As compared to the 1989 Ordinance on Procedures for Settlement of Civil Cases, the 2004 Civil Procedure Code has new provisions classifying civil procedure participants into involved parties and other participants. It also defines their respective rights and obligations more specifically and comprehensively.
The parties involved in civil cases can be individuals, agencies or organizations, including plaintiffs, defendants and persons with related interests and obligations.
Plaintiffs can be individuals, agencies or organizations that initiate lawsuits to request courts to settle civil cases when they think that their legitimate rights and interests are infringed upon.
Defendants can also be individuals, agencies or organizations, against whom the plaintiffs initiate lawsuits to request courts to settle civil cases.
Persons with related interests and obligations are those who neither initiate lawsuits nor are sued, but the settlement of civil cases is related to their respective interests and obligations and they themselves request or other involved parties request courts and the courts agree to recognize them as legal proceeding participants.
It is provided by law that individuals, agencies and organizations all have equal civil law capacity in requesting courts to protect their legitimate rights and interests. For individuals, this capacity will arise when a person is born and disappear when he/she dies. Individuals with civil procedure capacity have the civil procedure rights and obligations but they can only exercise these rights and obligations by themselves only when they have civil procedure act capacity.
For legal persons, the civil procedure law capacity will arise from the time competent state bodies establish them or permit their establishment or from the time of establishment registration if such registration is required by law. When the legal persons no longer exist, their civil procedure capacity will disappear.
Under Vietnamese law, involved parties being individuals are those who are full 18 years of age or older and have full civil procedure act capacity, excluding those who have lost their civil procedure act capacity or have a restricted civil procedure act capacity (persons suffering from mental disease or being physically handicapped). For persons under 18 years old or having lost their civil procedure act capacity or having a restricted civil procedure act capacity, the protection of their legitimate rights and interests at a court will be undertaken by their lawful representatives.
For involved parties being legal persons, their lawful representatives will participate in legal proceedings.
As provided for by law, when participating in legal proceedings, the involved parties have equal rights and obligations, including:
- Before the opening of a court hearing, the lawsuit initiators may change their lawsuit requests.
- The defendants are entitled to protest against the plaintiffs’ requests and to put forward their requests related to the plaintiffs’ requests.
- The involved parties are equal in furnishing evidence to protect their legitimate rights and interests, have the right to know the evidence furnished by the other parties, may request the court to apply necessary investigative measures and temporary urgent measures, request the change of procedure-conducting persons, interpreters or surveyors, join in conciliations, take part in the argument at court hearings, and appeal court judgments or rulings.
- The involved parties are obliged to furnish evidence, comply with decisions and requests of the court, and to appear under court subpoenas.
Apart from the plaintiffs, defendants and persons with related interests and obligations, other persons can participate in legal proceedings, including defenders of the legitimate rights and interests of parties involved, who are asked by the latter and approved by courts. Under Vietnamese law, the following persons can be approved by courts to act as such defenders:
- Lawyers participating in legal proceedings under the law on lawyers.
- Vietnamese citizens who have full civil act capacity, have not yet been convicted or have been convicted and entitled to criminal record remission, who are not confined to a medical treatment establishment or education camp, or not subject to administrative probation, or who are not public employees in a court, procuracy or police office.
Witnesses are those who know circumstances related to cases and may be summoned by courts for participation in legal proceedings. Persons who have lost their civil act capacity cannot act as witnesses.
Surveyors are those who possess necessary knowledge required by law about the fields they survey, are selected by the involved parties or ordered by the court to conduct a survey at the request of one or all parties concerned.