>>Courts’ jurisdiction to settle civil cases
Pham Diem
State and Law Institute of Vietnam
In the Vietnamese legal system, the civil law and the marriage and family law are two different law branches which share the same procedures for settlement of civil disputes and marriage and family-related disputes. In other words, marriage and family-related procedures are compliant with the civil procedure law.
To the oriental people in general and Vietnamese in particular, marriage and family relationship is not purely a civil but also a sentimental relationship which is more valuable and sacred than property relationship. Hence, marriage and family-related matters and cases should be settled under specific and peculiar provisions pursuant to the civil procedure law.
Marriage and family-related procedures are prescribed not only in the 1989 Ordinance on Procedures for Settlement of Civil Cases and the 2004 Civil Procedure Code but also in many other legal documents, including:
- Marriage and Family Laws of 1959, 1986 and 2000.
- October 3, 2001 Government Decree detailing the implementation of the 2000 Marriage and Family Law.
- July 10, 2002 Government Decree detailing the implementation of the Marriage and Family Law regarding marriage and family relations involving foreign elements.
- Supreme People’s Court’s documents:
. April 29, 1960 Circular guiding the adjudication of divorce cases;
. April 17, 1961 Circular on the adjudication of divorce cases for people who deliberately conceal their addresses;
. September 29, 1965 Official Letter on the application of law upon voluntary divorces;
. March 3, 1966 Official Letter guiding the divorce-settling order;
. January 21, 1972 Circular guiding the case hearing, transfer, shelving or temporary shelving of marriage and family- related matters and civil disputes;
- July 12, 1974 Circular guiding a number of issues related to the principles and procedures for settlement of divorce cases involving foreign elements;
. July 30, 1986 Official Letter guiding the application for cancellation of child adoption;
Court jurisdiction
Before the emergence of the 2004 Civil Procedure Code, Vietnamese law only provided courts’ jurisdiction to settle marriage and family-related matters and cases, but mainly disputes.
Yet, under the 2004 Civil Procedure Code, marriage and family-related matters and cases are classified into marriage and family-related disputes and requests, which both fall under court jurisdiction. Such new provisions suit Vietnamese realities in recent years when marriage and family-related disputes have constantly increased and become more complicated, while marriage and family-related cases, though dispute free, have become urgent issues in the legal life of individuals and families in a civil society. These matters should now be settled by judicial measures, not by administrative measures as before.
Concretely, before the promulgation of the Civil Procedure Code, courts had jurisdiction to settle the following marriage and family-related matters and cases:
- Cancellation of illegal marriages.
- Divorce.
- Division of common property of husband and wife when their marriage still exists or upon divorce, the nurturing of children after divorce.
- Supports provided for family members.
- Determination of father and mother for out-of-wedlock children.
- Cancellation of child adoption.
- Change of minors’ sponsors.
- Marriage and family-related cases involving foreign elements.
Under the 2004 Civil Procedure Code, marriage and family-related disputes falling under the courts’ jurisdiction include divorces; disputes over the nurturing of children and property division upon divorce; common property of husband and wife in the marital period; change of direct raisers of children after divorces; determination of father or mother for children or determination of children for father or mother; alimonies; and other disputes over marriage and family as prescribed by law.
Courts are also competent to settle the following requests related to marriage and family: cancel illegal marriage; recognize voluntary divorce, child adoption, property division after divorce; recognize agreement on change of direct raiser of children after divorce; limit father’s or mother’s rights towards a minor child or to visit children after divorce; terminate child adoption; recognize and enforce in Vietnam marriage and family-related judgments or rulings of foreign courts or not to recognize marriage and family-related judgments or rulings of foreign courts without requests for their enforcement in Vietnam; and other related requests as prescribed by law.
Settling family disputes
The settlement of marriage and family-related matters and cases must comply with the civil procedures, i.e., through the following steps: initiation of a lawsuit, hearing, investigation, conciliation, trial and enforcement of court judgments or rulings.
Moreover, it must also follow a number of specific procedures, which are prescribed by law and not contrary to the civil procedure law.
Wives, husbands, fathers, mothers, children of married couples, child protection and care offices and Women’s Unions may request courts to cancel illegal marriages. Meanwhile, individuals, agencies and other organizations may request People’s Procuracies to consider and request courts to annul illegal marriages.
With regard to fathers or mothers who have been sentenced for crimes of deliberately infringing upon the health, dignity or honor of their minor children or for acts of seriously breaching upon the obligations to look after, nurture and educate their children or dispersing their children’s property, or have lived a debauched life, incited or compelled their children to act against law or social ethics, courts may issue rulings on their own to restrict the rights of such fathers or mothers.
Also for these cases, relatives of minor children, People’s Procuracies, child protection and care offices and Women’s Unions may also request courts to restrict the rights of such parents. Meanwhile, individuals, agencies or other organizations can propose People’s Procuracies to consider and request courts to restrict the rights of such fathers or mothers to their minor children.
For the performance of the duty to provide alimonies, alimony creditors or their guardians, People’s Procuracies, child protection and care offices or Women’s Unions have the right to themselves request courts to coerce persons who fail to voluntarily provide alimonies to fulfill their duty, while individuals, agencies or other organizations are entitled to propose People’s Procuracies to consider and request courts to force such persons to perform their obligations.
Fathers, mothers or guardians, People’s Procuracies, child protection and care offices or Women’s Unions may themselves request courts to determine fathers or mothers for minor children or adult children who have lost their civil act capacity or determine children for fathers or mothers who have lost their civil act capacity. Meanwhile, individuals, agencies or other organizations have the right to propose People’s Procuracies to consider and request courts to make such determination.
Grown-up adopted children, their blood parents or guardians, People’s Procuracies, child protection and care offices and Women’s Unions may themselves request courts to issue rulings on termination of child adoption if the adopted children have been sentenced for one of the crimes of infringing upon the lives, health, dignity or dispersing the property of their adoptive parents or maltreating them, or if the adoptive parents have abused the child adoption to exploit the children or traffic them, to infringe upon the lives, health, dignity of their adopted children or ill-treat them.
At present in Vietnam, acts of domestic violence are not rare, which are, however, taken for granted by not a few people as their internal affairs and should not be revealed to outsiders or brought to courts. For such reason, that the law permits certain organizations and agencies (especially child protection and care offices and Women’s Unions) to directly file lawsuits or propose People’s Procuracies to take legal action is of great and practical effect in daily life.
Investigation of marriage and family cases falls under the jurisdiction of courts which shall conduct investigation from the date the cases are received in order to determine matters which must be testified. For instance, in a divorce case, it is necessary to examine if the sufferings in marital life cannot last any longer or the marriage objectives have not been attained and to conduct investigations on the couple’s children and property.
The parties involved may make requests and are obliged to supply evidences to prove their requests and protect their lawful interests. They are equal in the supply of evidences and entitled to request courts to conduct investigations through necessary measures.
Under the 2004 Civil Procedure Code, the investigation time limit is four months from the date a case is received or over six months for a complicated case or when the investigation meets with difficulties.
Conciliation is compulsory in civil procedures, especially in marriage and family-related procedures. Conciliation means the voluntary settlement by the parties of their matters or cases in accordance with law under courts’ guidance. In principle, courts should reconcile all matters and cases, except for the following matters and cases which the parties involved are not entitled to conciliation:
- Cancellation of illegal marriage. Upon request for cancellation of an illegal marriage, the court will issue a ruling to abrogate such marriage without conducting conciliations.
- Lawsuit for divorce where the defendant is insane.
For a number of specific cases in which a wife, who has been ill-treated and pitilessly beaten by her husband, applies for divorce while conciliation is deemed unreasonable and the possibility for spousal reunion extremely slim, courts will not conduct conciliation.
According to oriental traditions, Vietnamese people, who have, for long now, been bound together in community relations (blood, village, guild and friendship relations), greatly treasure family relations.
So, conciliation in marriage and family-related cases is extremely important and effective. Fully aware of this, Vietnamese lawmakers have recognized conciliation in the 2000 Law on Marriage and Family (Article 86): “The State and society encourage grassroots conciliations when husbands or wives request divorce and conciliations shall be conducted in accordance with the law on grassroots conciliations.”
Upon completion of investigation and failure of conciliation, courts will bring the cases to trial. Like other civil cases, a marriage and family-related case will be adjudicated through two levels: first-instance and appellate (in case of appeal or protest).
In addition, courts may review effective court judgments or rulings according to cassation procedures when errors are detected in the application of substantive or procedural laws or according to reopening procedures upon detection of new circumstances of the case.-