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| A court hearing at the Hanoi People’s Court__Photo: VNA |
This article evaluates and forecasts the responsiveness of Vietnam’s civil procedure law to the Fourth Industrial Revolution’s requirements on the exercise of the right to institute lawsuits for settlement of civil disputes, modes of filing lawsuit petitions, collection of evidences and documents, application of e-transactions in the service of procedural documents and performance of online conciliation procedures.
Le Van Hao, LL.D.
Rapid changes brought about by Industry 4.0 have necessitated the State’s application of new approaches in the formulation, revision and organization of the implementation of laws and adoption of new ways of legal thinking on the basis of a law-ruled and democratic legal system, with priority giving to development and application of the “legal technology” to both substantive law and normative law in order to meet requirements of state administration and international integration.
Elements of Industry 4.0 that exert impacts on settlement of civil cases and matters
The requirements of the national renewal and international integration process and accelerated building and improvement of the socialist law-ruled State of Vietnam in the new period set forth in Resolution 27-NQ/TW dated November 19, 2022, of the 6th plenum of the 13th Party Central Committee (Resolution 27) have made the study and improvement of the civil procedure law become an extremely important and necessary task. From the practice of the adjudication and supervision of the adjudication of civil cases and matters falling under the jurisdiction of people’s procuracies over the recent years, the author suggests effective evaluation and forecasting of the civil procedure law’s responsiveness (adaptation) to Industry 4.0’s requirements as well as analysis of factors that exert direct impacts on the entire process of settlement of civil cases and matters at courts in accordance with the 2015 Civil Procedure Code (the Code), especially in the stages mentioned below.
Exercise of the right to institute lawsuits to settle civil disputes and how plaintiffs file lawsuit petitions at courts
The right to institute civil lawsuits is one of citizens’ basic rights enshrined in the Constitution of Vietnam. Numerous developed countries have carried out digital transformation at their court and public prosecution/procuracy systems in order to change from traditional filing of lawsuit petitions to electronic method, thereby bringing courts’ activities closer to the people.
Usually, in order to file lawsuit petitions and proceed with procedural activities online, litigants are usually required to register their accounts under their real names on online proceeding platforms provided by competent courts. These courts will then verify phone numbers, citizen identity card and passport numbers and names and identifications of litigants. After having his name and identifications verified, a litigant will be granted a personal account for logging into the e-proceeding platform. Litigants are obliged to keep confidential their accounts and passwords. After being granted accounts, all procedural acts may be carried out by litigants on the e-proceeding platform and their account logins will be regarded as procedural acts unless those litigants can prove that their accounts have been stolen or encounter software system errors.
Under Article 4.1 of the Code, agencies, organizations and individuals will exercise their right to institute civil lawsuits by filing lawsuit petitions which are made according to Form No. 23 provided in the List enclosed with Resolution 01/2017/NQ-HDTP of January 13, 2017, of the Council of Judges of of the Supreme People’s Court.
To meet the requirements of administrative and judicial reforms, the Code has undergone some revisions that permit plaintiffs’ online filing of civil lawsuit petitions to courts via the latter’s portals (if any). This aims to extend the lawsuit-instituting right and create favorable conditions for institutional and individual plaintiffs to institute lawsuits online to settle their civil disputes at courts in a public, transparent, fair and timely manner.
Collection of evidences and documents to serve the settlement of civil cases and matters at courts under Article 97 of the Code
In order to have sufficient scientific and legal grounds for proper settlement of civil cases and matters, it is important to identify, preserve, collect, evaluate and use evidences, particularly such highly sensitive ones as those found on electronic appliances, social networks (Facebook, Zalo, Messenger, Viber, etc.), and computer and telecommunications networks since those evidences usually leave electronic traces which can be recorded or transmitted in such e-data forms as logfile, IP, domain, malware, cybertime and cyberspace or in the form of e-signals which can be read, found, preserved and recorded in USB, CD/VCD or printed out in the form of paper sheets or pictures for use as evidences in the settlement of civil cases and matters.
However, to be used as evidences in the settlement of civil cases and matters, e-data must have been lawfully collected, be relevant, necessary and lawful, and satisfy procedural requirements. Every information item obtained from such e-data for use as an evidence must be objective, relevant to proceedings and lawful.
The collection and evaluation of e-evidences must comply with the Code’s relevant provisions, e.g., Article 94 specifying e-data as a source of evidence and Article 95.3 providing that e-data messages are expressed in the form of exchange of e-data, e-documents, emails, telegraphs, telex, fax and in other similar forms as specified by the law on e-transactions.
Application of e-transactions in the service of procedural documents by courts to litigants in civil cases and matters
Civil procedure laws of almost all countries in the world have allowed the online service of procedural documents in addition to the modes of hand-delivery and sending by post. The Code also recognizes the value of e-data messages as evidences on the courts’ proceeding platforms. Article 176.2 of the Code stipulates: “The issuance, service or notification by electronic means shall be effected in accordance with the law on e-transactions.” In practice, these activities have been carried out in accordance with Resolution 04/2016/NQ-HDTP of December 30, 2016, of Council of Judges of the Supreme People’s Court, guiding the implementation of a number of provisions of the Code and the Administrative Procedure Code regarding the filing, sending and receipt of lawsuit petitions, documents and evidences and the provision, service and notification of procedural documents by electronic means (Resolution 04). Accordingly, litigants are allowed to choose to conduct e-transactions with courts by sending and receiving e-data messages to/from courts; or solely receiving e-data messages provided, served or notified by courts.
However, in reality the sending of procedural documents in the form of e-data messages is not yet common for the reason that it depends on the will of litigants and is legally binding as mentioned in Article 173.2 of the Code which stipulates: “The issuance, service or notification is carried out by electronic means at the request of the litigant or other proceeding participants in accordance with the law on e-transactions.”
Provision of documents and evidences by litigants in civil cases and matters
For documents and evidences submitted or provided by litigants via courts’ portals, Article 19.1 of Resolution 04 provides: “Plaintiffs and proceeding participants that have sent documents and evidences via courts’ portals are required to submit the originals or lawfully certified copies of such documents and evidences no later than dates of meetings for checking the handover, access and disclosure of evidences and mediation or meetings for checking the handover, access and disclosure of evidences and dialogue.”
For documents and evidences submitted or provided by litigants to courts by electronic means after the conclusion of meetings for checking the handover, access and disclosure of evidences and mediation or meetings for checking the handover, access and disclosure of evidences and dialogue, the time limit for handover of the originals and lawfully certified copies of such documents and evidences must comply with the procedure law.”
Procedures for online conciliation in civil proceedings
The shift from the mode of face-to-face mediation at courts to online conciliation on digital platforms is an inevitable development trend of civil proceedings in many countries around the world since it helps save time and costs for proceeding participants and bring into full play technological advantages in order to achieve higher efficiency as compared to the traditional mode.
Holding of video court hearings and meetings in civil proceedings
The organization of video court hearings and meetings in civil proceedings has become an inevitable trend in the context of Industry 4.0 that requires the application of the Internet, Internet of Things and cloud computing in civil proceedings, thus enabling courts to hold video court hearings and meetings. However, since the holding of court hearings and meetings to settle civil cases and matters constitutes a truly important stage in civil proceedings as it might greatly affect litigants’ right to fair procedure in civil cases and matters, it should be carefully considered and requires thorough preparations in terms of technological platform, physical facilities and human resources (the trial panel). Particularly, the protection of basic and legitimate rights and interests of citizens and organizations should also be taken into careful consideration before video court hearings and meetings are held.
The Code’s provisions on e-proceedings and online/video proceedings have laid an initial ground for holding video court hearings, including those for adjudication of civil cases and matters. To date, people’s courts and people’s procuracies have been intensively applying information technology, such as encryption of case files, documents and records and mind-mapping for case reporting and scene mapping in criminal, civil and administrative cases, etc.
Courts’ application of international and domestic regulations on entrustment of collection of documents and evidences for settlement of civil cases and matters involving foreign elements (under Article 475 of the Code)
On May 17, 2021, the Supreme People’s Procuracy issued Directive 03/CT-VKSNDTC on intensified application of information technology and promotion of digital transformation in the procuracy sector. The Directive regards intensified application of information and digital transformation as the entire procuracy sector’s key breakthrough in 2021 and subsequent years which aim toward building the sector’s modern information system with modern professional processes and rational organizational structures to meet the requirements of the judicial reform and reform of people’s procuracies in the new situation.
In light of this, the Supreme People’s Procuracy has directed the formulation of the Overall Master Plan on development of information technology system of the people’s procuracy sector for the 2021-2030 period, with orientations for the development of e-procuracies and eventually digital procuracies and promotion of digital transformation. The Master Plan sets the targets that by 2025, the building of e-procuracies will be basically completed with all of their working domains and activities computerized and applying information technology at the highest level and digital transformation synchronously and comprehensively completed.
By 2030, most professional operations of e-procuracies will be performed in the digital environment (digital procuracies). As a result, operations of procuracies in the settlement of civil cases and matters will meet requirements of an electronic justice system in synchrony with the people’s court system and other agencies in the justice system.
Recommendations
Firstly, it is suggested to revise Article 97.2 of the Code as it provides measures to be applied by courts to collect evidences but is silent about measures to collect e-data sources and procedures for courts to collect e-data sources. It is also a need to learn experiences of developed countries in the world in this domain with a view to completing the building of e-courts for settlement of civil cases and matters, thereby increasing citizens’ access to justice and judicial information, reducing courts’ administrative jobs, and helping judges improve transparency of their adjudicating activities.
Secondly, people’s courts and people’s procuracies should continue evaluating and forecasting impacts of Industry 4.0 on their sectors in a multi-dimensional manner in order to advise the National Assembly on revising the existing legal system in general and the civil procedure law’s provisions in particular and promulgating more specific ones. This is expected to facilitate the effective implementation of the judicial reform and building of the socialist law-ruled Vietnamese State of the people, for the people and by the people in the spirit of Resolution 27.-
