TUONG DUY LUONG
President of the Civil Tribunal
Supreme People’s Court
Many agencies protect consumer interests through different administrative and judicial measures. Such measures must be performed in a coordinated manner to ensure effectiveness. Among these agencies, courts play a special role. When handling infringements of consumer interests on behalf of the State, courts must comply with very strict legal procedures. The court’s rulings are enforceable to thoroughly protect consumer interests. In many cases, penalties imposed by courts are harsh to educate and deter people from breaking the law. In case of necessary and at the request of litigants, before accepting a case and during the process of handling it, courts may take temporary urgent measures to immediately protect the interests of the parties involved. They may impose civil sanctions according to the Civil Procedure Code or criminal penalties in line with the criminal procedure code. Administrative tribunals also play a particular role in protecting consumer interests when dealing with administrative acts or decisions issued by people competent to handle infringements of consumer interests against which lawsuits are filed with these courts.
Protection of consumer interests according to civil litigation procedures
There is no specialized court in
Right to sue
When finding there has been an infringement of their lawful rights and interests, consumers may sue for damages before a court. Consumer interest protection associations may also initiate a lawsuit if they are authorized in writing by consumers.
In the course of a lawsuit before the court, the litigants are considered equal in their negotiation and reconciliation in settling their case.
When initiating a lawsuit and during settlement, consumer and provider must provide proof of their claims. The court may verify and collect evidence only in cases provided for by the Civil Procedure Code.
Competence to settle lawsuits
A lawsuit to protect consumer interests, whether it is under contract law or the law on compensation for damage outside a contract, falls under the jurisdiction of district-level people’s courts (Article 33 of the Civil Procedure Code).
However, under Clause 2, Article 34 of the Civil Procedure Code, provincial-level People’s Courts may, when considering it necessary, pick up civil cases falling under the jurisdiction of district-level People’s Courts and settle them according to first-instance procedures.
Litigation procedures
Consumers who want to initiate legal proceedings against a provider must make a lawsuit petition.
Together with the lawsuit petition, the litigator must submit to the court documents and evidence to prove his/her request is grounded and lawful. For example, the consumers must give evidence they have bought the goods from the provider, that the damage is real and that the provider has violated the law on consumer interest protection.
The consumer may send, either in person or by post, a lawsuit petition and evidence to the relevant court. The date of the lawsuit is determined to be the date the petition is filed or the date shown on the post office postmark.
The court must receive the petition filed by the consumer in person or by post and record it in the petition receipt book. Within five working days after receiving the petition, the court must consider it and issue one of the following decisions:
- To continue with procedures to accept the case if it falls under the court’s jurisdiction;
- To transfer the lawsuit petition to a relevant court and notify the litigator if the case falls under another court’s jurisdiction; or,
- To return the lawsuit petition to the litigator if the subject matter does not fall under court jurisdiction.
If the court accepts the case, subsequent procedures will be carried out under the Civil Procedure Code.
Advance payment of court fees and other procedural expenses
According to regulations, the suing consumer must pay an advance court fee. When requesting the court to solicit a survey, the litigator must also pay survey expenses in advance.
Application of temporary urgent measures
The consumer may request the court to apply urgent temporary measures, such as requiring the party being sued to recall products that might have serious consequences, particularly irreparable damage to people or property.
Enhancing the role of courts in protecting consumer interests
Since current legislation makes no separate provisions for consumer-related disputes, the courts keep no statistics of lawsuits filed. However, through monitoring the adjudication of civil cases, it was found there were a few lawsuits of this kind in the recent past. The number of criminal cases in this area was also small. However, this does not mean there are not many cases of consumer interest infringements. In reality, there are many cases involving infringements of consumer rights, but nobody sued. For example, the 2006 case of petrol containing engine-damaging acetone, thousands of people in
Though the right of consumers to take legal action has been clearly defined in the 1999 Ordinance on Protection of Consumer Interests, the Civil Code and the Civil Procedure Code, there are a number of reasons consumers do not to initiate lawsuits.
By law only those who directly suffer damage are permitted to initiate lawsuits against providers. This means the litigator must file a lawsuit petition and is obliged to, according to court summons, supply relevant evidence and documents, as well as participate in mediation and court sessions. If the litigator does not want to personally participate in legal proceedings, they must authorize in writing another person to do so on their behalf. On the other hand, though the aggregate damage for a group of consumers can be huge, the damage caused to individual consumers is sometimes a lot less. When the conditions, order and procedures for initiating a lawsuit are rather complex and time-consuming, and the payable costs (e.g., travel, survey and lawyer costs) are possibly bigger than the damages the suing party may receive if their lawsuit is successful, consumers have little motivation to launch a lawsuit. In addition, Vietnamese are not in the habit of initiating legal proceedings.
In addition, the current law fails to make clear who in the chain of distribution - producer, distributor or retailer - will be sued. This can confuse consumers when deciding whether or not to initiate a lawsuit.
Litigators are also required by law to pay court fees in advance, creating another barrier for consumers deciding to take their claim to court.
Another problem arises in the fact that consumers are not in the habit of keeping receipts or invoices from purchased goods. So when they want to make a claim, it is difficult to provide sufficient evidence to prove they have bought and used the product in question.
In many cases, in order to prove a product contains toxic chemicals that harms consumers, a strict process of tests and examinations is required. However, the existing testing system is currently incapable of providing the necessary evidence for consumers who want to initiate a lawsuit.
The obligation to prove damage and the causal relation between the provider and the damage suffered by the consumer is very complicated, especially in cases involving harmful products that do not have immediate consequences, such as foods that do not cause immediate sickness or disease. In these cases, consumers find it difficult to prove and convince the court that their sickness or other damage is inflicted by their consumption of such products. The litigator will not receive any damages if they are unable to prove a direct link between the provider’s product and the resultant effect or harm.
Finally, the law on the protection of consumer interests remains rather formal and is difficult to use as an effective tool for protecting consumer interests.
Courts play a very important role in protecting consumer interests. However, they may deal with violations of the law on consumer protection only when they receive consumers’ or concerned organizations’ petitions or police prosecutions (for cases showing signs of a crime). Therefore, a number of measures should be taken to bring into play the role of courts in this work.
1. Because many consumers still hesitate to initiate a lawsuit, it is necessary to immediately introduce a special regime of court fee payments for lawsuits filed by consumers or consumer interest protection associations. Under this regime, litigators would not be required to pay court fees in advance when they file lawsuits and to pay such fees even when their lawsuits fail. Once consumers begin to report and sue infringements, advance payment of court fees can be reconsidered.
2. There should be additional provisions allowing consumers to sue any party in the product distribution chain, whether producer, wholesaler or retailer, when they find such lawsuit reasonable and that the possibility of receiving damages is high.
3. The mechanism of class action should be studied and applied. Consumers associations may take the initiative in filing a lawsuit in cases in which a business causes damage to consumers on a broad scale.
4. There should be provisions obligating the damage-causing party to pay all expenses incurred by the litigator (travel, lawyer and related expenses). At present, Vietnamese courts do not yet consider these expenses in most civil disputes.
5. Survey organizations should be established in every locality to conduct quick and accurate surveys of food items containing substances harmful to consumer health, inferior-quality products and faulty products and of possible harms caused by these products when consumers use them.
6. The network of consumer interest protection organizations should be strengthened, with particular attention paid to enhancing the capacity of local organizations. It should be clearly stipulated in the consumer protection law that such organizations have the right to represent consumers and initiate a lawsuit in the common interest of the public without having to obtain any specific written authorization by consumers.
7. Producers, distributors and suppliers should be obliged to pay damages on different scales and consumers should not be obliged to prove diseases and harm caused by products or obliged to prove the fault of producers. Consumers should only be required to prove that they have used the products in question and have suffered damage or are likely to suffer future disease or damage.
8. Producers, distributors and suppliers should be asked to issue and publicize specific regulations and levels of payable damages in cases in which they are liable to pay damages directly to consumers. This would be an effective tool for raising producer and supplier responsibility and enabling consumers to directly claim damages from producers and suppliers when they use substandard or toxic products which cause damage to them.-