Resolution No. 03/2012/NQ-HDTP of December 3, 2012, guiding the implementation of a number of provisions in Part One ‘General provisions” of the Civil Procedure Code, which was amended and supplemented under the Law Amending and Supplementing a Number of Articles the Civil Procedure Code

THE JUDGES’ COUNCIL OF THE SUPREME PEOPLE’S COURT

Resolution No. 03/2012/NQ-HDTP of December 3, 2012, guiding the implementation of a number of provisions in Part One ‘General provisions” of the Civil Procedure Code, which was amended and supplemented under the Law Amending and Supplementing a Number of Articles the Civil Procedure Code

THE JUDGES’ COUNCIL OF THE SUPREME PEOPLE’S COURT

Pursuant to the Law on Organization of the People s Courts;

In order to properly and uniformly implement Part One “General Provisions” of the Civil Procedure Code which is amended and supplemented under the March 29, 2011 Law Amending and Supplementing a Number of Articles of the Civil Procedure Code (below referred to as the Code);

After obtaining agreements of the Chairman of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1. Scope of regulation

This Resolution guides the implementation of a number of general provisions in order to ensure proper and uniform implementation of Part One “General Provisions” of the Code.

Article 2. Tasks and powers of settling civil cases and matters

1.     Pursuant to the Law on Organization of the People’s Courts and Chapter III, Part One of the Code, the tasks and powers of civil tribunals, economic tribunals and labor tribunal of  People’s Courts of provinces and centrally run cities in civil procedures are as follows:

a/ Civil tribunals have the tasks and powers of settling civil, marriage and family disputes and requests prescribed in Articles 25, 26, 27 and 28 of the Code;

b/ Economic tribunals have the tasks and powers of settling business and trade disputes and requests prescribed in Articles 29 and 30 of the Code; business and trade disputes to which one party or all parties has or have no business registration but all of them operate for profit;

c/ Labor tribunals have the tasks and powers of settling labor disputes and requests prescribed in Articles 31 and 32 of the Code;

d/ If, based on the guidance at Points a, b and c, Clause 1 of this Article, it is difficult to determine which tribunal has the tasks and powers to settle such a dispute or request, the president of the People’s Court of the province or centrally run city shall decide to assign it to a tribunal for settlement according to general procedures. If a civil case or matter is detected to fall under the tasks and powers of another tribunal only after it is accepted, the tribunal which has accepted the case shall continue settling the civil case or matter according to general procedures but it needs to write the serial number, code and subject in its judgment or decision under Article 3 of this Resolution.

2.     The civil tribunal, economic tribunal and labor tribunal of the Supreme People’s Court shall try according to cassation or reopening procedures relevant cases or matters as guided in Clause 1 of this Article when legally effective judgments or rulings of provincial-level People’s Courts are protested.

Article 3. The method of writing numbers, codes and subjects in civil judgments and decisions

Apart from writing the number and year of issuance of judgments or rulings settling civil, marriage and family, business, trade and labor disputes and requests, the writing of the code and subject in such judgments and decisions is as follows:

1. For judgments and decisions settling civil disputes

a/ Writing codes:

-           For first-instance judgments, write the code: DS- ST

For example: No. 20/2013/DS-ST

-           For appellate judgments, write the code: DS-PT

For example: No. 10/2013/DS-PT

-           For cassation trial rulings, write the code: DS-GDT

For example: No. 05/2013/DS-GDT

-         For reopening trial rulings, write the code: DS-TT

For example: No. 01/2013/DS-TT

b/ Writing subjects:

-                     It is necessary to determine which clause of Article 25 of the Code governs the dispute which is accepted and settled by the court for writing the subject of a judgment or decision.

For example: For a dispute accepted and settled by the court which arises between individuals over Vietnamese nationality as prescribed in Clause 1, Article 25 of the Code, write: “Re: Dispute between individuals over Vietnamese nationality.”

-        Where a group of disputes is prescribed in a relevant clause, Article 25 of the Code, the settled dispute should be specified.

For example: For a dispute accepted and settled by the court over a civil contract prescribed in Clause 3, Article 25 of the Code, it is necessary to specify the disputed civil contract; if the dispute is over a house rent contract, write: “Re: Dispute over a civil contract on house rent”; if the dispute is over a passenger transportation contract, write: “Re: Dispute over a civil contract on passenger transportation.”

2. For rulings on civil cases

a/ Writing codes:

-         For first-instance rulings, write the code: QDDS-ST

For example: No. 01/2013/QDDS-ST

-         For appellate rulings, write the code: QDDS-PT

For example: No. 10/2013/QDDS-PT

-         For cassation trial rulings, writ® the code: QDDS-GDT

For example: No. 15/2013/QDDS- GDT

-         For reopening trial rulings, write the code: QDDS-TT

For example: No. 10/2013/QDDS-TT

b/ Writing subjects:

It is necessary to determine which clause of Article 26 of the Civil Procedure Code governs the specific request which is accepted and settled by the court for writing the subject of a ruling.

For example: For a request accepted and settled by the court for declaring a person missing as prescribed in Clause 3, Article 26 of the Code, write: “Re: Request for declaring a person missing.”

3.  For judgments and rulings settling marriage and family, business, trade and labor disputes and requests, the writing of codes and extracts must be similar to that of judgments and rulings settling civil judgments and requests with the code “DS” replaced by the code of the dispute or request: “HNGD” (standing for marriage and family); “KDTM (for business and trade); and “LD” (for labor).

For example:

-   For first-instance judgments settling business and trade disputes, write: No. 09/2013/ KDTM/ST.

-   For first-instance rulings settling labor requests, write: No. 10/2013/QDLD-ST.

Article 4. On the provisions of Clause 9, Article 25 and Clause 6, Article 26 of the Code

1. In case there is a dispute over declaring a notarized document invalid between a notarization requester, witness or person with related rights and interests and a competent state agency defined in the law on notarization, they may request a court to declare such notarized document invalid under Clause 9, Article 25 of the Code.

2. In case notarization requesters, witnesses, persons with related rights and interests and competent state agencies defined in the law on notarization consider the notarization unlawful and jointly request a court to declare a notarized document invalid, they may request the court to declare the notarized document invalid under Clause 6, Article 26 of the Code.

Article 5. On the provisions of Clause 10, Article 25 and Clause 7, Article 26 of the Code

1. For assets confiscated for judgment execution but subject to an ownership dispute, involved parties and disputing parties (as defined in Article 75 of the Law on Execution of Civil Judgments) may initiate a lawsuit on the dispute ‘over confiscated assets for judgment execution as prescribed in Clause 10, Article 25 of the Code, to request a court to identify ownership portions for division of common assets.

Example 1: Under a court judgment, A has to pay VND 500 million to B. As A fails to voluntarily implement the judgment, the judgment execution agency notifies A of the confiscation of land use rights of A. C and D claim that land use rights are a common asset of A, C and D, and they initiate a lawsuit to request a court to identify their ownership portions of C and D in the common asset. In this case, the court shall base itself on Clause 1, Article 74 of the Law on Execution of Civil Judgments and Clause 10, Article 25 of the Code to accept and settle the case according to general procedures.

Example 2: Under a court judgment, A has to pay VND 500 million to B. As A fails to voluntarily implement the judgment, the judgment execution agency confiscates A’s land use rights for judgment execution. C claims that such land use rights are his own asset which he has asked A to represent, and therefore initiates a lawsuit to request a court to rule that it is his own asset. In this case, the court shall base itself on Article 75 of the Law on Execution of Civil Judgments and Clause 10, Article 25 of the Code to accept and settle the case according to general procedures.

2. Requests for identification of asset ownership and use right; requests for division of common assets for judgment execution according to the law on execution of civil judgments (Clause 1, Article 74 of the Law on Execution of Civil Judgments) fall under court jurisdiction as prescribed in Clause 7, Article 26 of the Code, specifically as follows:

a/ If there is a ground to believe that such asset is under the ownership of the judgment debtor, the requester shall request identification of ownership' of the judgment debtor to secure the judgment execution;

b/ If there is a ground to believe that such asset is a common asset, in which the judgment debtor has a portion, the requester shall request identification of the ownership portion of the judgment debtor to secure the judgment execution;

c/ If there is a ground to believe that the land use rights belong to the judgment debtor, the requester shall request the identification of the land use rights of such person to secure the judgment execution;

d/ If there is a ground believe that the land and use rights are a common asset, in which the judgment debtor has a portion, the requester shall request identification of the ownership portion of the judgment debtor to secure the judgment execution;

Example: Under a court judgment, A has to pay VND 500 million to B. As A fails to voluntarily implement the judgment, the judgment execution agency notifies A of the confiscation of A’s land use rights but A claims that the land use rights are a common asset of A and C. A and C cannot divide by themselves their portions in the common asset and do not initiate a lawsuit. In this case, if B requests identification of the asset portion of the judgment debtor in the common asset, the court shall base itself on Clause 1, Article 74 of the Law on Execution of Civil Judgments and Clause 7, Article 26 of the Code to accept and settle the case according general procedures.

Article 6. On the provisions of Article 29 of the Code

1. Individuals or organization that have business registration are those having obtained business registration certificates from agencies with business-registering competence in accordance with law, specifically:

a/ Individuals, households, cooperative groups (as defined in the 2005 Civil Code, the Commercial Law and other legal documents on business registration);     

b/ Enterprises (as defined in the Enterprise Law and legal documents guiding the implementation of the Enterprise Law);

c/ Cooperatives and unions of cooperatives (as defined in the Cooperative Law and legal documents guiding the implementation of the Cooperative Law);

d/ Other individuals and organizations as defined in the law on business registration.

2. Profit purpose of individuals and organizations in business and trade activities is their wish to make profits regardless of whether or not profits are generated from their business and trade activities.

3. Business and trade activities means activities for the profit-making purpose, including goods purchase and sale, service provision, investment, trade promotion and other activities for the profit-making purpose defined in Clause 1, Article 3 of the Commercial Law. Business and trade activities include not only registered ones but also other activities promoting and raising the efficiency of business and trade .activities.

For example: Limited liability company A is granted a business registration certificate for doing business in the field of garment. Its activities include not only making textile and garment products to serve the market but also purchasing materials and raw materials for production, building workshops, procuring equipment, renting cars for workers’ commutation to workplaces or travel on annual leaves under prescribed regimes or purchasing television sets to entertain workers after working hours, etc.

4. For disputes prescribed in Clause 2, Article 29 of the Code, individuals and organizations are not required to have business registration; all of them are only required to conduct their business and trade activities for the profit purpose; if only one party has the profit purpose while the other party does not, their dispute is a civil one as prescribed in Clause 4, Article 25 of the Code.

5. For disputes between a company and its members or between members of a company which are related to the establishment, operation, dissolution, merger, consolidation, division, splitting or transformation of the company prescribed in Clause 3, Article 29 of the Code, they should be distinguished as follows:

a/ Disputes between a company and its members are disputes over the capital portion contributed by each member to the company (this contributed capital portion is usually in cash but possibly in kind or is the value of industrial property rights); over the par value of stocks and the quantity of stocks issued by the joint-stock company; over the right to own part of the company’s asset corresponding to the capital portion contributed to the company; over the right to receive shared profits or the obligation to incur a loss corresponding to the capital portion contributed to the company; over claims for the company to exchange or pay its debts, liquidate assets and contracts signed by the company before its dissolution; over other matters related to the founding, operation, dissolution, merger, consolidation, division, splitting or conversion of the organizational form of the company;

b/ Disputes between members of a company are disputes between members of a company over the value of capital portions contributed to the company by its members; over the transfer of capital portions contributed to the company among the company’s members or over the transfer of capital portions contributed to the company between the company’s members and non-members; over the transfer of bearer stocks and registered stocks; over the par value of stocks and the quantities of issued stocks and bonds of the joint-stock company or over the right to own assets corresponding to the quantity of stocks of the company’s members; over the right to receive shared profits or the obligation to incur losses and pay debts for the company; over the liquidation of assets, the division of debts between the company’s members in case of dissolution of the company; over other matters related to the establishment, operation, dissolution, merger, consolidation, division, splitting or transformation of the company;

c/ When implementing the guidance at Points a and b, Clause 5 of this Article, if disputes arising between a company and its members or between members of a company are not related to the establishment, operation, dissolution, merger, consolidation, division, splitting or transformation of the company but only related to other relations such as labor or civil relations (for example; disputes over social insurance, allowances for employees, labor contracts, asset borrowing contracts, etc.), they are not business and trade disputes prescribed in Clause 3, Article 29 of the Code. On a case-by-case basis, such disputes may be considered civil or labor ones.

Article 7. On the provisions of Clause 3, Article 33 of the Code

1.     Involved parties in foreign countries include:

a/ Involved parties being foreigners who do not permanently reside, do business, study or work in Vietnam and are or are not present in Vietnam at the time the court accepts the civil case or matter;

b/ Involved parties being Vietnamese who permanently reside, do business, study or work overseas and are or are not present in Vietnam at the time the court accepts the civil case or matter;       

c/ Involves parties being foreigners who permanently reside, do business, study or work in Vietnam and are not present in Vietnam at the time the court accepts the civil case or matter;

d/ Involved parties being Vietnamese who permanently reside, do business, study or work in Vietnam and are not present in Vietnam at the time the court accepts the civil case or matter;

dd/ Agencies and organizations, foreign or domestic, that have no Vietnam-based offices, branches or representative offices the time the courts accepts the civil case matter.

2.               Under Clause 3, Article 102 of the Law on Marriage and Family, requests for invalidation of illegal marriages, settlement of divorce, disputes over the rights and obligations of spouses, parents and children, for recognition of parents and children, for child adoption and guardianship between Vietnamese citizens residing in border areas and citizens of neighboring countries residing in areas bordering on Vietnam fall under the jurisdiction of people’s courts of urban districts, rural districts, townships or provincial cities where concerned Vietnamese citizens reside.

3.     Assets in foreign countries

Assets in foreign countries are assets determined under the Civil Code to be outside the territory of the Socialist Republic of Vietnam at the time the court accepts the civil case or matter.

4.               The need for judicial mandate to representative missions of the Socialist Republic of Vietnam in foreign countries, to competent foreign courts or agencies.

The need for judicial mandate to representative missions of the Socialist Republic of Vietnam in foreign countries, to foreign competent courts or agencies is the case where in the process of settling a civil case or matter, it is necessary to carry out one or more than one civil procedure in a foreign country but the Vietnamese court cannot carry out it and needs to request a representative mission 0f the Socialist Republic of Vietnam in the foreign country or a foreign competent court or agency to carry out such activity in accordance with the international agreement to which ,Vietnam is a contracting party or on the principle of reciprocity.

5.     Not changing the jurisdiction of courts

a/ For civil cases or matters not falling into any of the cases prescribed in Clause 3, Article 33 of the Code and guided in Clauses 1, 2, 3 and 4 of this Article and accepted and settled by district-level people’s courts according to their jurisdiction, if there appear changes only in the process of settlement, such as there is an involved party or asset abroad or a need for judicial mandate to a representative mission of the Socialist Republic of Vietnam in a foreign country or a foreign competent court or agency, according to Article 412 of the Code, the district-level people’s court which has accepted the civil case or matter shall continue settling it;

b/ For civil cases or matter not falling into any of the cases prescribed in Clause 3, Article 33 of the Code and guided in Clauses 1, 2, 3 and 4 of this Article and accepted and settled by provincial-level people’s courts according to their jurisdiction, if there appear changes only in the process of settlement, such as an involved party or asset is no longer abroad or there is no need for judicial mandate to a representative mission of the Socialist Republic of Vietnam in a foreign country or a foreign competent court or agency according to Article 412 of the Code, the provincial-level people’s courts which have accepted the civil cases shall continue settling them.

Article 8. On the provisions of Article 35 of the Code

1. On general principle, the territorial jurisdiction of courts to settle civil cases is determined according to Point a, Clause 1, Article 35 of the Code.

2. In case all involved parties agree in writing that they may request the court of the locality where the plaintiff resides or works, if the plaintiffs is an individual, or where the plaintiff is headquartered, if it is an agency or organization, to settle the civil case. Such agreement must not be contrary to Articles 33 and 34 of the Code.

Example: In a civil case, plaintiff A resides in district M of province N and respondent B resides in district X of province Y. On principle, the court of district X, province Y where respondent B resides has jurisdiction to settle the case. If the parties agree that the court of the locality where plaintiff A resides will settle the case, they shall assure that such court is at the competent level. If the case falls under the competence of district-level courts, their agreement may be accepted only when they agree that the court of district M, province N will settle the case. If the parties agree that the court of province N will settle the case, their agreement is not accepted.

3. Only courts of localities where real estate exists prescribed at Point c, Clause 1, Article 35 of the Code are competent to settle disputes over such real estate.

4. For marriage and family or inheritance cases involving disputes over real estate, the courts competent to settle them must be determined according to Points a and b, Clause 1, Article 35 of the Code.

5. Places of residence, workplaces or head offices defined in Article 3s of the Code are determined at the time of filing of lawsuit petitions or requests for settlement of civil cases or matters by courts.

Article 9. On the provisions of Article 36 of the Code

1. When considering a plaintiff’s request to select a court to settle a civil case or matter, apart from complying with Articles 33 and 34 of the Code on the jurisdiction of courts at all levels, the following should be distinguished:

a/ In cases where Article 36 of the Code provides that a request to select a court to settle a civil case is conditional, the court shall only accept the request when the required condition exists.

For example: Point a, Clause 1, Article 36 of the Code states: “If the plaintiff does not know the residence, workplace or head office of the respondent, the plaintiff may request settlement by the court of the place where the respondent last resides or works or his/her last head office is located or where his/her asset is situated.” So, only in cases where the plaintiff does not know the residence, workplace or head office of the respondent, the plaintiff may request settlement by the court of the place where the respondent last resides or works or his/her last head office is located or where the respondent’s asset is situated;

b/ In cases where Article 36 of the Code provides that a request to select a court to settle a civil case or matter is unconditional, the court shall accept that request.

For example: Point d, Clause d, Article 36 of the Code states: “For a dispute over compensation for damage outside the contract, the plaintiff may request settlement by the court of the place where the plaintiff resides or works or is headquartered or the damage-causing act occurs.” So, in this case, the request to select a court to settle a civil dispute is unconditional, and the plaintiff may request settlement by the court of the place where the plaintiff resides or works or is headquartered or the damage- causing act is committed and the court shall accept such request.

2. In case a plaintiff or requester may select more than one competent court to settle a civil case or matter (for example, the court of the place where the respondent last resides or works or the respondent’s last head office is located or where the respondent’s property is situated - Point a, Clause 1, Article 36 of the Code), when receiving the lawsuit petition or request, the court shall explain to the plaintiff or requester that they may select only one of the courts which, as specified in this Article, have jurisdiction to settle civil cases or matter. So, the plaintiff or requester shall pledge in the lawsuit petition (Request neither to initiate a lawsuit nor to file a request with another court.

In case the plaintiff or requester files his/her lawsuit petition or request with different courts as prescribed in the Article, the court which first accepts the case will have the jurisdiction to settle the civil case or matter. Other courts which have not yet accepted the case shall, pursuant to Point dd, Clause 1, Article 168 of the Code, return the lawsuit petition or request; if they have accepted the case, they shall, pursuant to Point dd, Clause 1, Article 168 and Point i, Clause 1, Article 192 of the Code, issue decisions to stop the settlement of the civil case or matter, delete its name in the acceptance book and return the lawsuit petition or request together with enclosed documents and evidences to the involved party.

If the involved parties have advanced a court fee, the court shall, pursuant to Clause 3, Article 193 of the Code, refund it to the payers.

Article 10. On the provisions of Clause 1, Article 37 of the Code

When a court sees that it has accepted a civil case or matter not falling under its jurisdiction but falling under the jurisdiction of a people’s court of another locality at the same or a different level, it shall issue a decision to transfer its file to the competent court and delete the civil case or matter from the acceptance book. In case the involved party has advanced a court fee, the court that has transferred the file is not required to refund the advanced court fee to the involved party; the advanced court fee will be handled when the competent CQurt settles the civil case or matter. The decision on transferring the case file must be signed by the judge assigned to settle the civil case or matter and affixed with the seal of the court. This decision must be immediately sent to the same-level procuracy, involved party and related individuals, agencies and organizations. The competent court shall, upon receiving the decision on the civil case file transfer and the civil case file, record it in the acceptance book and proceed with settling such case or matter under general regulations.

Article 11. Court rulings in some specific cases

1. In case a dispute arises and a lawsuit petition is filed to request a court to settle the dispute, if after the court accepts the case and during the preparation for first-instance trial involved parties are able to reach agreement on the settlement of the whole case, the court shall make a minutes on such agreement and issue a decision to recognize the agreement of the involved parties under Article 187 of the Code.

2. In case involved parties request recognition of their consent to divorce, child rearing and division of assets after divorce; request recognition of their agreement on the change of the person who will personally rear children after divorce under Clauses 2 and 3, Article 28 of the Code, but after the court accepts and in the process of settling their civil cases, the involved parties change their agreement, the following cases should be distinguished:

a/ If the parties replace their agreement (partially or wholly) with a new agreement, the court shall continue settling the civil matter according to general procedures;

b/ If either party changes or both parties change the agreement (partially or wholly), but cannot reach agreement on the matter previously agreed upon and a dispute arises, they are considered having withdrawn the request. The court shall, pursuant to Article 311 and Point c, Clause 1, Article 192 of the Code, issue a decision to stop settling the civil matter. In this case, the court should explain to the involved parties that if they still request the court’s settlement, they shall initiate a lawsuit according to general procedures.

Article 12. On the provisions of Article 43 of the Code

“Court clerks” referred to in Article 43 of the Code are civil procedure-conducting persons holding the civil servant rank of “court clerk” or “legal expert” or “appraiser”, who are assigned by court presidents to conduct procedures for civil cases and matters and perform the tasks and exercise the powers provided in Article 43 of the Code.

Article 13. On the provisions of Article 46 of the Code

1. Under Clause 1, Article 46 of the Code, procedure-conducting persons shall refuse to conduct procedures or be replaced if they are relatives of involved parties (including plaintiffs, respondents, persons with related interests and obligations) in civil cases.

2. A relative of an involved party is a person who is:

a/ The spouse, a blood or adoptive parent, blood or adopted child of the involved party;

b/ A paternal or maternal grandparent or blood sibling of the involved party;

c/ A paternal or maternal blood uncle or aunt of the involved party;

d/ A paternal or maternal grandchild, paternal or maternal blood cousin of the involved party.

3.                 There are clear grounds to believe that they may not be impartial when performing their duties means that apart from the cases stated in Clauses 1 and 2, Article 46 of the Code, in other cases (such as in emotional ties, in-law relationships, working relationships, economic relationships, ect.) there are clear grounds to assert that judges, people’s jurors, procurators or court clerks will not be impartial when performing their duties. For example: a people’s juror and a plaintiff are sworn brothers; a judge is a son-in-law of the respondent; a person with related interests and obligations is the head of the agency where the judge’s wife is working, etc., and there are clear grounds to prove that they have close emotional ties or economic relationships, etc.

There are clear grounds to believe that they may!3lot be impartial when performing their duties also means that in the same court hearing to try a civil case, the procurator, the judge, the people’s juror and the court clerk are relatives or that the judge, the people’s juror or the procurator assigned to conduct appellate trial of a civil case is a relative of the judge, people’s juror or procurator who participated in the first-instance trial of such case.

Article 14. On the provisions of Clauses 2 and 3, Article 47 of the Code

1.               Under Clause 2, Article 47 of the Code, judges or people’s jurors shall refuse to conduct procedures or be replaced if they are in the same trial panel and are relatives. However, when two members of a trial panel are relatives, only either of them shall refuse to conduct procedures or be replaced. Before the opening of a court hearing, the court president shall decide on who will be replaced; during a court hearing, the trial panel shall decide on who will be replaced. The determination that a judge and a people’s juror in the same trial panel are relatives must comply with the guidance in Clause 2, Article 13 of this Resolution.

2.               Under Clause 3, Article 47 of the Code, judges and people’s jurors shall refuse to conduct procedures or be replaced if they “have participated in the first-instance, appellate... trial of that case.” Having participated in the first-instance, appellate... trial of a case means having participated in settling the case and having issued a first-instance or appellate judgment or a decision recognizing the agreement of the involved parties or a decision terminating the case settlement.

Article 15. On the provisions of Clause 2, Article 51 of the Code

1.               At a court hearing, persons requesting replacement of a procedure-conducting person shall clearly state the reason and grounds for their request.

The trial panel shall listen to statements of the person requested to be replaced regarding the replacement request.

Requests for replacement of procedure- conducting persons and statements of requesters and persons requested to be replaced must be fully recorded in the court hearing’s minutes. The trial panel shall hold discussions in the judgment deliberation room and shall, pursuant to Articles 46, 47, 48 and 49 of the Code and the guidance in Articles 13 and 14 of this Resolution, make decision by majority to replace or not to replace procedure-conducting persons.

In case of deciding to replace procedure- conducting persons, the decision must clearly state that the court hearing is postponed and propose the competent person to appoint a person to replace the procedure-conducting person concerned within three days from the date of receipt of the decision, and specify the time limit for postponement of the court hearing.

2.               Decisions to replace or not to replace procedure-conducting persons must be publicly announced at court hearings by trial panels. Decisions to replace procedure-conducting persons must be immediately sent to competent persons defined in Clause 2, Article 51 of the Code.

Article 16. On the provisions of Clause 3, Article 57 of the Code

Under Clause 3, Article 57 of the Code, “involved parties are those aged full eighteen years or older and having full civil procedure act capacity, excluding those who have lost their civil act capacity, persons who have their civil act capacity restricted, or otherwise provided for by law.” Thus, apart from the exclusion of those who have lost their civil act capacity and persons who have their civil act capacity restricted, if it is otherwise provided by law, persons who have not yet reached full eighteen years of age may still have full civil procedure act capacity or persons aged full eighteen years or older may still not have full civil procedure act capacity. Therefore, in order to correctly determine the civil procedure act capacity of a particular person, apart from the provisions of the Code, courts shall consider whether or not there are other legal documents providing differently for civil procedure act capacity.

Example 1: In case of persons having not yet reached full eighteen years of age but having full civil procedure act capacity, Article 9 of the Law on Marriage and Family stipulates that females aged eighteen years or older may get married and Resolution No. 02/2000/NQ- HDTP of December 23, 2000, of the Judges’ Council of the Supreme People’s Court, guiding the application of a number of provisions of the 2000 Law on Marriage and Family, guides (at Point a, Section 1) that it is not a breach of the condition on marriage age if females who have just turned eighteen get married; accordingly, when there are requests for courts to settle marriage and family cases or matters, these females may participate on their own in civil procedures.

Example 2: In case of persons having reached full eighteen years of age but not having full civil procedure act capacity, Article 41 of the

Law on Marriage and Family stipulates that a court may issue a decision disallowing a parent to raise and educate his/her children, manage his/her children’s own assets or act as his/her children’s at-law representative* therefore, during the time that parent is banned by the court from acting as his/her children’s at-law representative, he/she may not participate in civil procedures in the capacity as his/her children’s at-law representative in civil cases or matters.

Article 17. On the provisions of Point dd, Clause 2, Article 58 of the Code

1.               Involved parties may only ask for permission to take note of and copy documents and evidence in the case file before the opening of a court hearing to try the case. If having the need to take note of and copy documents and evidence, they shall send written requests to competent courts. If they come in person to a court to present their requests to take note of and copy documents and evidence, they shall also make such requests in writing and submit them to the court. If the involved parties are illiterate, the court shall make a written record of their requests and read it to the requesters who will sign or press their fingerprints there on.

Written requests must specifically indicate names of documents or evidence which need to be taken/note of or copied.

2.                 On the basis of involved parties’ requests, courts shall create conditions for them to take note of and copy documents and evidence, However, according to regulations on the preservation of case files and on responsibilities of public employees of procedure-conducting agencies ^ preserving case files, courts shall ask involved parties to exercise their right to take note of and copy documents and evidence in case files as follows:

a/ Courts provide involved parties with documents and evidence which the latter need to take note  and copy and let them take note and copy by their own cameras or other technical devices. Such documents and evidence must be related to the cases and unrelated to state secrets, professional secrets, business secrets or personal secrets. For any documents that cannot be provided at involved parties’ request, reasons must be clearly stated;

b/ If involved parties have no camera or other technical devices for photographing or copying by themselves and ask courts to photograph or copy for them, depending on practical conditions and availability of their staff, courts may photograph or copy documents and evidence for involved parties who will have to pay photographing and copying expenses according to general regulations. The photographing and copying may be carried out promptly or within a reasonable time limit set by courts;

c/ The note taking and copying must be carried out at court’s offices under the supervision of court staffs and comply with regulations on protection of state secrets, professional secrets, business secrets and personal secrets.

Article 18. On the provisions of Article 63 of the Code

1.               On a case-by-case basis, persons who are requested by involved parties to act as defense counsels of the rights and legitimate interests of involved parties shall produce to courts the following papers and documents:

a/ Lawyers shall produce to courts letters of introduction issued by law firms of which they are members or with which they have signed working contracts to designate them participate in court proceedings, and their lawyer cards;

b/Attorneys at law or legal aid participants  shall produce to courts letters of introduction aid organizations that designate them to participate in proceedings and their attorney at law or legal aid collaborator cards;

c/ Other persons shall produce to courts  documents expressing the will of involved to settle cases shall consider and make decision. If all conditions are met, they shall grant certificates of defense counsels of the rights and legitimate interests of involved parties for such defense counsels to participate in civil procedures. If all conditions are not met, they will not accept and notify in writing involved parties and persons who are not accepted, clearly stating the reason for non- acceptance.

In the process of settling cases, if defense counsels of the rights and legitimate interests of involved parties commit any of acts prescribed in Article 385 of the Code, judges assigned to settle the cases shall make written records of violations

committed by such defense counsels. Such written records must contain signatures of record makers, violators and witnesses. If violators refuse to sign records, judges shall write such refusal in these records. When seeing that if violators are allowed to continue participating in proceedings in the capacity as defense counsels of the rights and legitimate interests of involved parties, the case settlement will not be not impartial, courts may not allow violators to continue participating in proceedings in the capacity as defense counsels of the rights and legitimate interests of involved parties, and shall concurrently notify such in writing to involved parties and such violators.

4.       If, during a court hearing^ involved parties ask for help from defense counsels of their rights and legitimate interest^ the trial panel shall accept their defense counsels if the latter meet the conditions guided in Clause 1 of this Article, and such acceptance will not prevent the trial panel from continuing trying the case.

Trial panels shall refuse involved parties’ request for postponement of court hearings in order to ask others to defend their rights and legitimate interests.

Article 19. On the provisions of Clause 2, Article 64 of the Code

The provisions that defense counsels of the rights and legitimate interests involved parties may take note of and copy necessary documents in case files in order to defend the rights and legitimate interests of involved parties are implemented under the guidance in Article 17 of this Resolution.

Article 20. On the provisions of Clauses 3, 8 and 9, Article 66 of the Code

1.     On Clause 3, Article 66 of the Code

a/ Being related to state secrets means being related to matters (information, news, contents, etc.) in competent state agencies’ legal documents which are classified by law as “top secret”, “strictly confidential” or “secret”;

b/ Being related to professional secrets, business secrets or personal secrets means being related to law-protected professional secrets, business secrets or personal secrets of witnesses themselves;

c/ Adversely affecting or harming involved parties in a case who are relatives of witnessed

c.l/ The identification of relatives of witnesses complies with the guidance in Clause 2, Article 3 of this Resolution;

c.2/ Adversely affecting involved parties means that if witnesses report what they know, this will adversely affect the happiness, honor, dignity, deputation or otherwise adversely affect the life, work, production or business activities of involved parties who are relatives of witnesses;

d/ If witnesses refuse to give statements for reasons guided at Points a, b, and c, Clause 1 of this Article, judges shall explain to them that if their refusal to give statements is groundless, they shall bear responsibility in accordance with law.

2.     On Clause 8, Article 66 of the Code

a/ The trial panel may issue decisions to escort witnesses to court hearings only when the following conditions are fully met:

a. 1/ Witnesses have been duly summoned;

a.2/ Witnesses fail to show up at court hearings without plausible reasons;

a.3/ The absence of witnesses from court hearings hinders the trial;

a.4/ Witnesses are escorted to court hearings before the trial panel enters the judgment deliberation room.

b/ Decisions to escort witnesses must be promptly handed to the competent security and judicial assistance police of the People’s Public Security Force for execution under the Public Security Ministry’s Circular No. 15/2003/TT- BCA (VI9) of September 10, 2003, guiding judicial assistance activities of the security and judicial assistance police of the People’s Public Security Force.

3.     On Clause 9, Article 66 of the Code

In the stage of preparation for trial and in court hearings to try a case, judges or the trial panel shall request witnesses to pledge before court to exercise their rights and fulfill their obligations, except minor witnesses. A pledge of witnesses must have the following contents:

a/ Pledging that the court has clearly explained about their rights and obligations;

b/ Pledging to give truthful statements before court;

c/ Pledging to bear full responsibility before law for their statements.

In the stage of preparation for trial, witnesses’ pledges must be recorded in minutes of witnesses’ testimonies. During court hearings, witnesses’ pledges must be recorded in court hearings’ minutes.

Article 21. On the provisions of Article 73 of the Code

According to Clause 2, Article 73 of the Code, agencies or organizations that initiate lawsuits to protect the rights and legitimate interests of other persons are also the protected persons’ at-law representatives in civil procedure. In this case, these agencies or organizations may participate in the procedure through their at-law or proxy representatives.

Article 22. On the provisions of Article 75 of the Code

1.     According to Point b, Clause 1, Article 75 of the Code, persons who are acting as at-law representatives in civil procedure for an involved party may not act as at-law representatives for another involved party in the same case where the rights and legitimate interests of these involved parties are contrary. In this case, they may only act as at-law representatives for the involved party for whom they are acting as at- law representatives in the case concerned.

For example: Mr. B is currently acting as an at-law representative for his wife who has lost her civil act capacity. He may not act as an at-law representative for his younger blood brother who is a minor in the same case if the rights and legitimate interests of his wife and his brother are contrary. In this case Mr. B may only act as an at-law representative for his wife in civil procedure.

2.     According to Clause 3, Article 75 of the Code, cadres and civil servants in the court, procuracy or police service may only act as representatives in civil procedure in any of the following cases:

a/ When they act as at-law representatives or proxy representatives for their agencies;

b/ When they act as at-law representatives for involved parties (other than their agencies) in cases.

Article 23. On the statute of limitations for initiation of lawsuits' prescribed in Clause 3, Article 159 of the Code

1. For civil disputes for which the statute of limitations for initiation of lawsuits is prescribed in relevant legal documents, the prescribed statute of limitations is applied.

Example 1: For disputes over insurance business contracts, according to Article 30 of the Insurance Business Law, the statute of limitations for initiation of lawsuits regarding insurance business contracts is three years, counting from the time of arising of disputes.

Example 2: For individual labor disputes, according to Clause 2, Article 202 of the Labor Code, the statute of limitations for initiation of lawsuits regarding individual labor disputes is one year, counting from the date of detection of the act which is regarded by each disputing party as having infringed upon its/his/her rights and legitimate interests.

Example 3: For a dispute over division of an estate, certification of one’s rights to inheritance or disclamation of others’ rights to inheritance, according to Article 645 of the 2005 Civil Code, the statute of limitations for initiation of lawsuits is ten years, counting from the time of opening the inheritance.

2. For the following civil disputes, the statute of limitations for initiation of lawsuits is not applied:

a/ Disputes over ownership of assets, over who have the rights to possess, use and dispose of such assets;

Example: A dispute over ownership of a house; if a lawsuit is initiated, a court shall accept the lawsuit. The acceptance or non- acceptance of the lawsuit must be based on law.

b/ Disputes over claiming back assets managed or possessed by others, which are disputes over assets under one’s lawful ownership and use rights but currently managed or possessed by others;

For example: A house is owned by A but currently managed by B; A has documents proving that the house is under its/his/her ownership and initiates a lawsuit to claim back the house and a court accepts the case. The acceptance or non-acceptance of the claim must be based on law.

c/ Disputes over land use rights provided in the land law, which are disputes over who have such land use rights.

3.                 Civil disputes arising from civil transactions (asset borrowing contracts, asset consignment and keeping contracts, asset lease contracts, asset package lease contracts, processing contracts, transportation contracts, land use rights transfer contracts, land use rights lease contracts, land use rights sub-lease contracts) may be settled as follows:

a/ For civil disputes arising from civil transactions, the statute of limitations prescribed in legal documents relevant to such type of transaction is applied.

Example: For a dispute over a house lease contract, the statute of limitations for initiation of lawsuits regarding asset lease contracts prescribed in Article 427 of the 2005 Civil Code is two years.

b/ For civil disputes over asset ownership, claiming back assets or land use rights managed or possessed by other persons through civil transactions, the statute of limitations for initiation of lawsuits is not applied.

Example 1: On January 1, 2008, A lent to B VND 500 million for a term of 1 year. B failed to pay the loan and its interest on January 1, 2009. On April 3, 2011, A initiated a lawsuit to request B to pay the loan and its interest. The court refuses to settle the request for payment of the interest for the reason that the statute of limitations for lawsuit initiation has expired. The court accepts the request for repayment of the loan principal, for which the statute of limitations for lawsuit initiation is not applied, for settlement according to general procedures.

Example 2: In case an asset lesser is involved in a dispute over the asset lease contract, the statute of limitations for initiation of lawsuits regarding asset lease contracts is that prescribed in Article 427 of the 2005 Civil Code. For a dispute over claiming back leased assets which are currently managed or possessed by other persons, according to the guidance at Point a, Clause 3, Article 159 of the Code and Point b, Clause 3 of this Article, the statute of limitations is not applied.

Example 3: For a dispute over who holds intellectual property rights, the statute of limitations for lawsuit initiation is not applied. For a dispute over transactions involving intellectual property rights, the statute of limitations prescribed for such transactions is applied.

4. For civil disputes for which the statute of limitations for initiation of lawsuits is not prescribed in relevant legal documents and which do not fall into the cases prescribed at Point a, Clause 3, Article 159 of the Code and are not guided in Clause 2 and at Point b, Clause 3 of this Article, the statute of limitations for initiation of civil cases is two years, counting from the date individuals, agencies or organizations know that their rights and legitimate interests are infringed upon.

For example: Article 111 of the Railway Law stipulates “The statute of limitations for initiation of lawsuits to request settlement of disputes over railway business contracts complies with the civil procedure law and commercial arbitration law.”

5. Starting time of the statute of limitations for initiation of lawsuits is the date the rights and legitimate interests of individuals, agencies or organizations or public interests or state interests are infringed upon and is determined as follows:

a/ For civil obligations of which the time limit for fulfillment has been agreed upon by involved parties or is provided by law, if, past this time limit, the party having the obligation fails to fulfill it, the date of expiration of the time limit for fulfillment of the obligation is the date the infringement occurs;

b/ For civil obligations of which the time limit for fulfillment has not been agreed upon by involved parties or is not provided by law, if, as prescribed by law, involved parties may perform their obligations or request for performance of the obligations at any time provided that one party shall inform such in advance to the other party within a reasonable time limit. If, past this time limit, the party having the obligation fails to fulfill it, the date of expiration of the informed time limit is the date the infringement occurs;

c/ Upon the expiration of the time limit for fulfillment of a civil obligation, if involved parties agree to prolong this time limit, the determination of the date of infringement upon rights and legitimate interests must be based on the date of termination of the involved parties’ agreement and comply with the guidance at Points a and b, Clause 5 of this Article;

d/ In the course of contract performance, if a contractual obligation is breached, the date of breach of the obligation is the date that breach is committed, unless otherwise agreed by contracting parties. If one party unilaterally ceases the contract performance, the date of unilateral cessation is the date of breach;

dd/ For claims for compensation for damage caused by acts of infringing upon assets, health, life, etc., the date such an act is committed is the date of infringement;

e/ In a legal relation or civil transaction, if acts of infringement are committed at different times, the starting time of the statute of limitations for initiation of lawsuits is the time the last act of infringement is committed;

g/ In the cases guided at Points a, b, c, d, dd and e, Clause 5 of this Article, if contracting parties otherwise agree on the starting time of the statute of limitations for initiation of lawsuits, the starting time of the statute of limitations for initiation of lawsuits is determined according to the agreement of contracting parties.

6. According to Article 160 of the Code, the provisions of the 2005 Civil Code on the statute of limitations apply to civil procedure; therefore the non-application of the statute of limitation for initiation of lawsuits, the time not included in the statute of limitations for initiation of lawsuits, the re-counting of the statute of limitations... comply with the 2005 Civil Code.

Article 24. On the statute of limitations for making requests prescribed in Clause 4, Article 159 of the Code

1. For requests for settlement of civil matters for which the statute of limitations for making requests is prescribed in relevant legal documents, such legal documents apply.

Example 1: The time limit for making a request for invalidation of an arbitration award is thirty days from the date of receipt of such arbitration award as prescribed in Article 69 of the Commercial Arbitration Law.

Example 2: The time limit for making a request for non-recognition of a civil judgment or ruling of a foreign court not requested to be executed in Vietnam is thirty days from the date of receipt of such civil judgment or ruling as prescribed in Article 360 of the Code.

2. For requests for settlement of civil matters for which the statute of limitations for making requests is not prescribed in relevant legal documents, the statute of limitations for requesting courts to settle civil matters is one year from the date the right to request arises, except the cases prescribed in Clause 4, Article 159 of the Code and guided in Clause 3 of this Article.

For example: For requests for declaring notarized documents invalid prescribed in Clause 6, Article 26 of the Code and Article 45 of the Notarization Law, the statute of limitations for requesting courts to declare notarized documents invalid is one year from the date the right to request arises.

3.For the following requests for settlement of civil matters related to personal civil rights of individuals, the statute of limitations for making requests is not applied:

a/ Requests for declaration of a person’s loss of civil act capacity or restricted civil act capacity; requests for cancellation of a decision on a person’s loss of civil act capacity or restricted civil act capacity as prescribed in Articles 319 and 322 of the Code;

b/ Requests for declaration of a missing person or cancellation of a decision declaring a missing person prescribed in Articles 330 and 333 of the Code;

c/ Requests for declaration of the death of a person’s death or cancellation of a decision declaring the death of a person as prescribed in Articles 335 and 338 of the Code;

d/ Requests for limitation of a number of parental rights to minor children as prescribed in Article 41 of the Marriage and Family Law;

dd/ Other cases prescribed by law.

4. The starting time of the statute of limitations for making requests

The starting time of the statute of limitations for making requests is the date when the right to request arises.

Example: According to Article 45 of the Notarization Law, notaries, notarization requesters, witnesses, persons with related rights and interests and competent state agencies may request courts to declare notarized documents invalid when having grounds to believe that the notarization is unlawful. In this case, the starting time of the statute of limitations for making requests is the date when the right to request arises. The date when the right to request arises is the date when the requester knows that the notarization is unlawful.

Article 25. Forms of procedural documents

The following forms of procedural documents are promulgated together with this Resolution:

1. First-instance civil judgment (Form No. 01);

2. Certificate of defense counsel of rights and legitimate rights of involved parties (Form No. 02).

Article 26. Effect

1.  This Resolution was adopted by the Judges’ Council of the Supreme People’s Court on December 3, 2012, and takes effect on July 1,2013.

Resolution No. 01/2005/N^DTP of March 31, 2005, of the Judges’ Council of the Supreme People’s Court, guiding the implementation of a number of provisions of Part One “General Provisions” of the Civil Procedure Code, and the Supreme People’s Court’s guidance issued before the effective date of this Resolution regarding the matters guided in this Resolution, cease to be effective on July 1, 2013.

2.     For civil, marriage and family, economic and labor cases which have been accepted by courts but not yet brought for first-instance or appellate trial or cassation or reopening trial, the guidance in this Resolution will apply to the settlement thereof.

For court judgments and rulings which become legally effective before the effective date of this Resolution, the guidance in this Resolution will not apply to their protests according to cassation or reopening procedures, unless there are other grounds for protest.

On behalf of the Judges ’ Council of the Supreme People s Court

President

TRUONG HOA BINH