Through the review of judicial practice, the Supreme People's Court has received reports from the Courts on a number of problems when dealing with criminal and civil cases. To ensure uniform application of the law, the Supreme People's Court hereby gives advisory opinions as follows:

I. CRIMINAL CASES

1. In a criminal case involving an accomplice, the Court applies an aggravating circumstance of criminal responsibility for "the crime of a gangster-like nature " or an aggravating circumstance of determination of sentence bracket for “the crime of a gangster-like nature" as prescribed in the Criminal Code; as for other accomplices who play an insignificant role and do not directly participate in the commission of crime, can they be given a suspended sentence when they are tried?

According to the guidance in Clause 1, Article 3 of Resolution No. 02/2018/NQ-HDTP dated May 15, 2018 of the Council of Judges of the Supreme People's Court on guidelines for the application of Article 65 of the Criminal Code on suspended sentences, a gangster-like offender shall not be allowed to serve a suspended sentence. So, if the Court applies an aggravating circumstance of criminal responsibility for "the crime of a gangster-like nature" or an aggravating circumstance of determination of sentence bracket for “the crime of a gangster-like nature" to the offender as prescribed in the Criminal Code, he/she shall not be allowed to serve a suspended sentence.

However, as for a criminal case involving accomplices, when adjudicating the case, the Court must consider and assess the nature, role, and criminal behavior of each accomplice to determine whether they fall under "the crime of a gangster-like nature".

2. Due to a conflict, P, L fought with Y. Y used a razor blade to injure P 14%, L 44%. So will Y face a criminal prosecution as prescribed in points c, d, clause 3, or either point c or point d, clause 3, Article 134 of the Criminal Code?

In this case, Y will face a criminal prosecution under point c, clause 3, Article 134 of the Criminal Code. In addition, Y also injures P 14%, so in determining the penalty to be imposed, this consequence must be also considered.

3. In a case where a defendant committed a crime when he was under 70 years old. At the time of trial, if the defendant is over 70 years old, whether the extenuating circumstance of criminal liability for "the offender is 70 years of age or older" may be applied under point o, clause 1, Article 51 of the Criminal Code or not?

The provisions at point o, clause 1, Article 51 of the Criminal Code do not take account of whether the offender is full 70 years old or older at the time of commission of the crime or during the course of criminal prosecution. Therefore, in case the defendant is under 70 years old when committing the crime but during the trial he/she reaches full 70 years old or older, the Court still applies the extenuating circumstance of criminal liability for "the offender is full 70 years old or older" to him/her.

4. If the user of another person's vehicle causes an accident, is the damage to this asset considered as “damage to another person" specified in Clause 1, Article 260 of the Criminal Code?

Damage to another person specified in Clause 1, Article 260 of the Criminal Code is understood as damage excluding damage to the person causing the accident and the vehicle used by that person. Therefore, the above case does not consider damage to the vehicle which he/she drove as "damage to another person" even though it is not his/her asset.

5. What is considered a complete fulfillment of the obligation to compensate for damage in the case of having to perform the support obligation under a court judgment or decision when considering conditional parole?

Clause 1 Article 591 of the Civil Code stipulates “Damage caused by harm to life shall comprise:… c) Support for the dependants of the aggrieved person;…”. Thus, the support obligation is also the obligation to compensate for damage. In the case of having to perform the support obligation under a court judgment or decision to be considered as a complete fulfillment of the obligation to compensate for damage when considering conditional parole if it falls into one of the following conditions:

- Having completely fulfilled the support obligation under the court's judgment or decision;

- Having performed the lump-sum support obligation and certified by a competent authority as having completed the support;

- Partially fulfilled the support obligation and there is an agreement and certification of the legal representative of the person receiving support on the continuation of performance or not having to perform the support obligation according to the court judgment or decision and certified by a competent authority;

- The support obligation has not been fulfilled but there is an agreement and certification of the legal representative of the support recipient that the supporter is not required to perform the support obligation according to the court judgment or decision and certified by a competent authority.

6. A drug addict leases a place to other drug addicts or lets them use a place, or commits other acts to conceal drug addicts in order to use narcotic substances illegally. Shall he face a criminal prosecution for concealment of illegal use of narcotic substances according to Article 256 of the Criminal Code?

According to the guidance at point b, section 7.3, section 7, part II of the Joint Circular No. 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP dated December 24, 2007 of the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Justice on guidelines for certain provisions in Chapter XVIII "Narcotic crimes" of the Criminal Code 1999: "b) Drug addicts who let other drug addicts jointly illegally use narcotics at a place under their ownership, possession or management, they shall not be held criminally liable for concealment of illegal use of narcotics; for those who have sufficient elements constituting the crime of illegal use of narcotics, they shall bear criminal liability for the crime of illegal use of narcotics specified in Article 199 of the Criminal Code".

According to the guidance at Article 3 of the Joint Circular No. 08/2015/TTLT-BCA-VKSNDTC-TANDTC-BTP dated November 14, 2015 of the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Justice on amendments to the Joint Circular No. 17/2007/TTLT-BCA-VKSNDTC-TANDTC-BTP dated December 24, 2007 of the Ministry of Public Security, the Supreme People's Procuracy, the Supreme People's Court, the Ministry of Justice on guidelines for certain provisions in Chapter XVIII "Narcotic crimes" of the Criminal Code 1999: “…Annul the instructions at point dd. 3.7 Section 3 Part II; point b, Item 7.3, Section 7, Part II; Section 8 Part II of Joint Circular No. 17/2007/TTLT”. So far, there has been no legal document guiding the replacement of this content of the Joint Circular No. 08/2015/TTLT-BCA-VKSNDTC-TANDTC-BTP.

According to Clause 1, Article 256 of the Criminal Code: “A person who leases, let others use a place or engages in any other act of concealing the illegal use of narcotics, if not in the cases specified in Clause 1 of this Article. prescribed in Article 255 of this Code…”. This provision does not preclude criminal prosecution of drug addicts who conceal illegal use of narcotics. Therefore, for cases where drug addicts lease a place to other drug addicts or let them use a place in order to use narcotics together, if they do not fall into the cases specified in Article 255 of the Criminal Code, they shall be imposed criminal prosecution for concealment of illegal use of narcotics as prescribed in Article 256 of the Criminal Code, if there are sufficient elements to constitute a crime.

7. A bought narcotics back home (B did not know A bought narcotics). A and B went to C's house to hang out. When they came to C's house, A took out the narcotics and said "let's do drugs". At that time, all three people used narcotics together, then D went to C's house and saw narcotics on the table, so he used them himself. A, B, C and D are all drug addicts. So, shall A be criminally prosecuted for the crime of organizing the illegal use of narcotics?

According to Official Dispatch No. 89/TANDTC-PC dated June 30, 2020 of the Supreme People's Court on replies to inquiries related to practices: “Organization of illegal use of narcotics is understood to commit one of the acts of arranging and managing people and instruments; supplying narcotics, arranging places, means, instruments, etc. for the illegal use of narcotics”.

In this case, A is a narcotics supplier to B, C, and D so that they can illegally use narcotics. The act of providing narcotics for other people to use is one of the acts of "organizing illegal narcotics use". Therefore, A shall be imposed the criminal prosecution for organization of illegal use of narcotics according to Article 255 of the Criminal Code.

II. CRIMINAL PROCEDURES, CRIMINAL JUDGMENT ENFORCEMENT

1. The People's Procuracy of the same level breaches the time limit for issuing a decision on prosecution of the accused and the time limit for handing over the indictment as prescribed in Clauses 1 and 2, Article 240 of the Criminal Procedure Code, or there is a suspicious correction of the date of recording the minutes of handing over the case files from the investigating agency to the Procuracy to conform to the statutory time limit. Will the Court return the case file for additional investigation?

The above case will be determined to be a serious procedural error. However, the Court will return the case file for additional investigation only if this error infringes on the lawful rights and interests of the participants in the proceedings as provided for in Article 280 of the Criminal Procedure Code and the guidance at Article 280 of the Criminal Procedure Code and guidance in Article 6 of Joint Circular No. 02/2017/TTLT-VKSNDTC-TANDTC-BCA-BQP dated December 22, 2017 of the Supreme People's Procuracy, Supreme People's Court, Ministry of Public Security, Ministry of National Defense on the coordination between presiding agencies in the implementation of a number of provisions of the Criminal Code on the return of case files for additional investigation.

If the Court fails to return the case file, when adjudicating and issuing a judgment, the Court must evaluate and analyze the legitimacy of the procedural actions and decisions of investigators and procurators in accordance with regulations at point e, clause 2, Article 260 of the Criminal Procedure Code.

2. Because the prison term is equal to or shorter than the time the defendant has been detained, the Trial Panel has announced the release of the defendant right at the court hearing. In this case, does the Court have to issue a decision to impose the prison sentence on the convict?

In the above case, the Court does not have to issue a decision to impose the prison sentence but a decision to release the accused at the court hearing. When the judgment takes legal effect, the Court shall enclose with the judgment the decision to release the accused at the court hearing to the criminal judgment enforcement agency as prescribed.

3. How is the Court's jurisdiction over combination of multiple sentences specified in Clause 3, Article 56 of the Criminal Code?

The Court's jurisdiction over combination of multiple sentences specified in Clause 3, Article 56 of the Criminal Code is as follows:

- As for legally effective judgments of the same Court, the Chief Justice of that Court shall issue a decision to combine the sentences;

- As for the legally effective judgments from different courts but at the same level (same district level in the same province or different province; the same area level in the same military zone or different military zones; the same first instance level of province, the same military zone level, and the same appellate court at the Superior People's Court), the Chief Justice of the Court that issues the final judgment (in terms of time) shall issue a decision to combine the sentences.

- As for the legally effective judgments from courts of different levels, the Chief Justice of the higher court which has the legally effective judgment shall issue a decision to combine the sentences, regardless of whether the judgment of the higher court has been issued before or after the judgment of the lower court.

- In case among the legally effective judgments, there are judgments of the People's Courts and judgments of the Military Courts, the combination of sentence shall be carried out similarly to the cases of legally effective judgments from different courts of the same level and in the case of legally effective judgments are those of courts not of the same level as above.

III. CIVIL CASES

1. The house and land are owned by Mr. A and Mrs. B (married couple). Mr. A forged Mrs. B's signature to transfer the house and land to C (the forgery of the signature has been proven through the assessment). After the transfer, Mr. A and Mrs. B still own and use the house and land. Then, C put this property up as collateral for a bank loan. So, is this mortgage transaction at the Bank null and void? If it is null and void, is it contrary to Section 1, Part II of Official Dispatch No. 64/TANDTC-PC dated April 3, 2019 of the Supreme People's Court on the notification of online answers to a number of problems in criminal cases, civil cases, administrative proceedings (hereinafter referred to as Official Dispatch No. 64/TANDTC-PC)?

Article 123 of the Civil Code 2015 stipulates: “Civil transactions with objectives and contents which breach legal prohibitions or which contravene social ethics shall be declared null and void.

Legal prohibitions mean provisions of law which do not permit entities to perform certain acts.

Social ethics are common standards of conduct as between persons in social life, which are recognized and respected by the community”.

Clause 2 Article 133 of the Civil Code 2015 stipulates: “In cases where a civil transaction is invalid but the transacted property being a moveable property is not required to be registered and such property has already been transferred to a bona fide third party through another transaction, the transaction with the third party shall remain valid, except for the case specified in Article 167 of this Code”.

In this case, the fact that Mr. A forged Mrs. B's signature to transfer the house to C without Ms. B's consent, so based on Article 123 of the 2015 Civil Code, the above house transfer transaction is null and void.

After receiving the transfer, C put this property up as collateral for the bank loan, but when signing the mortgage of property, the Bank did not assess and verify it, so it did not know that Mr. A and Mrs. B still managed and used the property or it has assessed but there are no documents or evidence to prove that Mr. A and Mrs. B know the mortgage of this property. In this case, the mortgagee (the Bank) is not a bona fide third party as prescribed in Clause 2, Article 133 of the Civil Code 2015 and Section 1, Part II of Official Dispatch No. 64/TANDTC. -PC, so the mortgage contract is also void.

2. Mr. A borrowed 1 billion dong from the Bank, the loan term is 1 month from January 2, 2017, the interest rate is 2% per month. After 1 month, Mr. A defaulted on the principal and interest. Within 03 years from February 3, 2017 to February 3, 2020, the Bank did not initiate a lawsuit to request Mr. A to repay the debt. Up to now, if the Bank sues to request Mr. A to repay the debt, does Mr. A have the right to request the application of the prescriptive period before the first-instance court issues a judgment or decision to settle the case?

Article 429 of the Civil Code 2015 stipulates: “The prescriptive period for initiating legal action to request a court to resolve a dispute relating to a contract is three years from the date on which the party entitled to request knows or should know that their lawful rights and interests are infringed”.

Pursuant to the above provisions, the prescriptive period for initiating a lawsuit to request the Court to settle the credit contract dispute has expired. However, according to Clause 2, Article 155 of the 2015 Civil Code, the prescriptive period for initiating a lawsuit does not apply in the case of "request for protection of property rights, unless this Code or other relevant laws provide for otherwise". Therefore, the Bank can sue Mr. A to claim the property (principal debt) and the Court shall accept and settle the case, regardless of whether the parties request the application of the prescriptive period before the first-instance court issues a judgment or decide whether to settle the case or not.

3. Regarding certain types of civil contracts such as house leases, property leases, property loan contracts between individuals and groups (not a credit contract), will the prescriptive period for initiating lawsuits apply as prescribed in Article 429 of the Civil Code 2015?

Clause 2 and Clause 3 Article 155 of the Civil Code 2015 stipulates: “A prescriptive period for initiating legal action for a civil case shall not apply in any of the following cases:

...2. Request for the protection of ownership rights, unless otherwise provided by this Code or relevant laws.

3. Dispute over land use right as prescribed in the Law on land…”

According to Article 429 of the Civil Code 2015: “The prescriptive period for initiating legal action to request a court to resolve a dispute relating to a contract is three years from the date on which the party entitled to request knows or should know that their lawful rights and interests are infringed”.

According to Clause 2, Article 184 of the Civil Procedure Code: “The Courts shall apply the regulations on prescriptive period according to the requests for application of prescriptive period of one or multiple parties, provided that such requests are made before the first-instance courts issue the judgments/decisions on such cases.

Therefore, for disputes over ownership and property reclaiming, the court does not apply the prescriptive period regardless of whether or not one party or the parties have requested the application of the prescriptive period. For disputes arising from civil transactions such as house leases, property leases, property loan contracts between individuals and groups (not a credit contract), will the prescriptive period for initiating lawsuits apply as prescribed in Article 429 of the Civil Code 2015 and ?Article 184 of the Civil Procedure Code.

4. According to Official Dispatch No. 64/TANDTC-PC, in case the house and land transfer transaction is null and void, the transferee has been granted a certificate of house ownership and land use rights and has put up the house and land as collateral for the Bank in accordance with the law, based on Article 133 of the Civil Code 2015, the mortgage transaction is not null and void. So, does this guide apply to mortgage transactions arising before January 1, 2017 that is now in dispute?

Clause 1, Article 156 of the Law on Promulgation of Legal Documents in 2015 as amended and supplemented according to Law No. 63/2020/QH14 in 2020 stipulates: Legislative documents are applicable from their effective date. Legislative documents shall be applied to the acts committed at the time such documents are effective, except for those that have retrospective effect.

Thus, in general, the law at the time when an act occurs shall apply. When specific legal documents contain other provisions, such as retroactive regulations, then they will be applied differently from the general principles mentioned above.

Pursuant to the above provisions, the guidance in Part 1, Section I of Official Dispatch No. 64/TANDTC-PC is applicable to civil transactions performed since January 1, 2017 but not to civil transactions performed before January 1, 2017.

IV. CIVIL PROCEDURES

1. Mr. A must pay Mr. C an amount of VND 500 million, but Mr. A does not voluntarily execute the judgment. The judgment enforcement agency has determined that the married couple Mr. A has the land use right of 156m2 together with property on land, but has not made a notice as prescribed in clause 1 Article 74 of the Law on Enforcement of Civil Judgments, or the judgment against Mr. A has not been enforced. Mr. C initiates a lawsuit to request the Court to determine the part of Mr. A's property ownership and land use rights in the common property. After accepting the case, the People's Court of District H issued a decision to suspend the settlement of the case on the grounds that Mr. C did not have sufficient conditions to initiate a lawsuit. So, is this suspension decision of the People's Court of District H correct?

According to point d clause 1 Article 7 of the Law on Enforcement of Civil Judgments, the civil judgment creditor has the right to: “Initiate civil lawsuits to protect his/her lawful rights and interests if there is a dispute over assets related to judgment enforcement”.

Clause 1 Article 74 of the Law on Enforcement of Civil Judgments stipulates: “In case of failing to identify the proportion of asset ownership or land use rights of the judgment debtor in the common assets for judgment enforcement, the enforcer shall notify the judgment debtor and co-owners of assets or land use rights so that they reach an agreement on division of common assets or request the court to settle the case according to civil procedure.

Past 30 days after receiving the notification, if no agreement is reached by the parties or their agreement violates the provisions of Article 6 of this Law or they cannot reach an agreement or do not request the court to settle the case, the enforcer shall notify the judgment creditor of his/her right to request a court to identify the proportion of asset ownership or land use rights of the judgment debtor in the common assets according to civil procedure…”

Clause 12, Article 26 of the Civil Procedure Code stipulates: “Disputes relating to properties forfeited to enforce judgments in accordance with the law on enforcement of civil judgments” is one of the civil disputes falling under the jurisdiction of the Court.

In this case, the judgment enforcement agency has only determined that the married couple Mr. A has the land use right of 156m2 together with property on land, but has not made a notice as prescribed in clause 1 Article 74 of the Law on Enforcement of Civil Judgments. Mr. C (the judgment creditor) has initiated a lawsuit to request the Court to determine the part of Mr. A's property ownership and land use rights in the common property. However, Mr. C has not enough grounds for doing so. Therefore, the People's Court of District H issued a grounded decision to suspend the settlement of the civil case.

2. According to Official Dispatch No. 141/TANDTC-KHXX dated September 21, 2011 of the Supreme People's Court on the jurisdiction to handle requests for return of the certificate of property ownership, the certificate of land use right is not a valuable paper, if there is a request to the Court to force the occupier to return this kind of paper, the Court will not accept such a case. However, according to Clause 2, Article 4 of the Civil Procedure Code, "the court may not refuse to settle civil cases because there is no applicable law". So, can the Court handle these cases?

Clause 8 Article 6 of the Law on the State Bank of Vietnam 2010 stipulates: “Valuable paper means a proof evidencing the debt-payment obligation of the issuer towards the owner in a certain duration under the interest payment condition and other conditions”. The Law on Negotiable Instruments 2005 stipulates that valuable papers are: bills of exchange, promissory notes, cheques.

Clause 16 Article 3 of the Land Law 2013 stipulates: “Certificate of land use rights and ownership of houses and other property on land is a legal certificate in which the State certifies the lawful land use rights and ownership of houses and other property on land of the person who has land use rights and ownership of houses and other property on land”. Section 1, Part I of the Official Dispatch No. 02/GD-TANDTC dated September 19, 2016 of the Supreme People's Court in reply to certain problems in criminal civil cases, and civil procedures gives the guidance as follows: "The certificate of land use right is an administrative decision; if it falls under one of the cases specified in Clause 2, Article 3 of the 2015 Law on Administrative Procedures, it shall be the subject matter of an administrative lawsuit” . Accordingly, a land use right certificate is an administrative decision, not the evidence of debt liability”. Therefore, it is not a valuable paper. Therefore, the guidance in Official Dispatch No. 141/TANDTC-KHXX which determines that a certificate of land use right is not a valuable paper is still in accordance with the Civil Code 2015 and other laws in force.

Article 164 of the Civil Code 2015 stipulates: “Each owner or holder of other property-related rights shall have the right to request a court or another competent authority to compel the person infringing upon their rights to return the property and terminate the acts of illegally obstructing the exercise of their ownership rights or other property-related rights, and to request compensation for any damage.”

Thus, if there is a request to the Court to force the occupier to return the certificate of land use right, stop the act of obstructing the exercise of the land user's rights, the People's Court will accept such a case for settlement as prescribed in Clause 2, Article 26 of the Civil Procedure Code.

3. In the course of settling disputes over contracts on transfer of land use rights or contracts on asset purchase and sale, on mortgage of assets, etc. Does the court have to bring a notarial practice organization to the proceedings as a person with related rights and obligations?

According to Points d and g, Clause 2, Article 17 of the Notary Law amended in 2018, notaries have obligations to explain to notarization requesters their lawful rights, obligations and interests, and legal significance and consequences of notarization; if refusing notarization requests, to clearly state the reasons to notarization requesters and to take responsibility before law and notarization requesters for documents they have notarized. 

According to Article 38 of the Notary Law amended in 2018:

“1. Notarial practice organizations shall pay compensation for damage caused to notarization requesters and other organizations and individuals due to faults of their notaries or employees or interpreters being their collaborators in the process of notarization.

2. Notaries, employees or interpreters being collaborators who cause damage shall indemnify the notarial practice organization for the compensation amount already paid by this organization to the damage sufferer in accordance with law; in case they fail to indemnify such amount, the notarial practice organization may request a court to settle”.

Clause 4 Article 68 of the Civil Procedure Code stipulates: “The persons with related interests and/or obligations in civil lawsuits are those who neither initiate lawsuits nor are sued, but the resolution of the civil lawsuits is related to their interests and/or obligations and, therefore they themselves, or other involved parties, request to include them in the proceedings in the capacity as the persons with related interests and/or obligations and such requests are accepted by courts.

Where the resolution of a civil lawsuit is related to the interests and/or obligations of a person but no one requests to include him or her in the proceedings in the capacity as the persons with related interests and/or obligations, the Court shall have to include that person in the proceedings in the capacity as the person with related interests and/or obligations”.

Thus, based on the above provisions, depending on the case, the Court considers whether to bring a notarial practice organization to the proceedings as a person with related interests and obligations. Where the settlement of a contract dispute is related to the notary's obligation to explain according to point d, clause 2, Article 17 of the Notary Law amended in 2018, the responsibility to pay compensation for damage to the notarization requester, the court shall consider bringing the notarial practice organization to the proceedings as a person with related interests and obligations.

4. Vietnam Asset Management Company (VAMC) bought non-performing loans of a credit institution, then, VAMC re-authorized the credit institution to initiate lawsuits and participate in legal proceedings at Court to request settlement of non-performing loans. When accepting and settling the case, does the Court have to summon and serve court papers to both VAMC and credit institutions?

Clause 1 Article 138 of the Civil Procedure Code 2015 stipulates: “Each natural or juridical person may authorize an another natural or juridical person to enter into and perform a civil transaction”.

Clause 4 Article 85 of the Civil Procedure Code stipulates: “The authorized representatives as defined in the Civil Code shall be the authorized representatives in the civil procedures”.

Clause 2 Article 86 of the Civil Procedure Code stipulates: “The authorized representatives in civil procedures shall exercise the procedural rights and obligations of the involved parties according to the written authorization”.

According to point b clause 1 Article 5 of the Resolution No. 03/2018/NQ-HDTP dated May 15, 2018 on guidelines for implementation of certain regulations in settlement of dispute over settlement of non-performing loans, collateral associated with non-performing loans at People’s Court, A juridical person is entitled to authorize another juridical person or natural person to file a lawsuit at the competent court to settle a dispute over settlement of non-performing loans or collateral associated with non-performing loans.

In this case, VAMC bought non-performing loans of the credit institutions, then VAMC gave a written authorization to the credit institution with the content that the credit institution could initiate a lawsuit and participate in court proceedings to settle a dispute over the settlement of non-performing loans or collateral, the authorized credit institution shall have the civil procedural rights and obligations of the involved party. Therefore, when settling the case, the Court must summon and serve the court papers to the authorized credit institution, not summon and serve the court papers to VAMC.

5. During the course of settlement of a civil case, if the plaintiff fails to pay the valuation expenses according to Point dd, Clause 1, Article 217 of the Civil Procedure Code, the court shall issue a decision to terminate the settlement of the case. So, in this case, does the plaintiff have the right to re-file the lawsuit as if the plaintiff withdraws the lawsuit petition?

Point dd Clause 1 Article 217 of the Civil Procedure Code stipulates:

“After accepting cases which fall within their respective jurisdiction, the Courts shall issue decisions to terminate the resolution of the civil lawsuits in the following circumstances:

...dd) Plaintiffs fail to advance the charges for property price appraisal and other procedural charges prescribed in the Code…”

Clause 1 Article 218 of the Civil Procedure Code stipulates: “When the decisions to terminate the resolution of civil lawsuits are issued, the involved parties shall not be entitled to initiate lawsuits to request the Courts to re-settle such civil lawsuits if the institution of the subsequent cases does not bring in any difference from the previous cases in terms of the plaintiff, defendant and the disputed legal relations, except for cases prescribed in clause 3 Article 192, point c clause 1 Article 217 of this Code and cases otherwise provided for by law…”.

Thus, according to the above provisions, in case the Court issues a decision to suspend the settlement of a civil case for the reason "The plaintiff does not pay an advance for asset valuation cost and other procedural cost", then the plaintiff does not have the right to re-initiate lawsuits to request the Court to continue handling the case as in the case of withdrawal of lawsuit petitions.

6. Mr. A transferred the land to Mr. B for 02 billion VND, Mr. B paid Mr. A 500 million VND but then the two parties had a dispute, Mr. B asked to declare the contract between him and Mr. A. A null and void. The court declared that the contract for transfer of land use right between Mr. A and Mr. B null and void and the parties shall return to each other what they had received. So, in this case, does Mr. A have to bear the court fee of the amount of VND 500 million to be paid to Mr. B?

According to Clause 3, Article 27 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of National Assembly on collection, exemption, reduction, collection, payment, management, and use of court fees and charges (hereinafter referred to as Resolution No. 326/2016/UBTVQH14):

"Regarding disputes over property purchase and sale contracts, if the contract is null and void, the obligation to bear the first-instance civil court fee is determined as follows:

a) In case one party requests the recognition of the property purchase and sale contract or land use right transfer contract and the other party declares such contract null and void and there is no other claim; if the Court declares the contract null and void, the party requesting recognition of the contract shall bear the same court fee as in non-monetary claim; if the Court recognizes the contract, the party requesting the declaration of the contract to be null and void shall bear the court fee as in the non-monetary claim;

b) In case one party requests the recognition of the property purchase and sale contract or land use right transfer contract, and the other party requests to declare the property purchase and sale contract or land use right transfer contract null and void and requests the court to address the consequences following the contract declared null and void besides bearing the monetary claim court fee specified at Point a, Clause 3 of this Article, the person who has to perform property obligations or pay compensation for damage must also bear the court fee as in the monetary claim related to the value of the property to be executed.”

Pursuant to the above provisions, in case Mr. B requests to declare the contract for transfer of land use right null and void, and Mr. A and Mr. B have no other claims; if the Court declares the contract null and void, Mr. A must bear the court fee as in the case non-monetary claim.

In case Mr. B requests to declare the contract for transfer of land use right null and void and requests the Court to address the consequences of the null and void contract, Mr. A must bear the court fee for non-monetary claim and the court fee for monetary claim of VND 500 million to be paid to Mr. B.

7. Mr. D and Mrs. E had two children, Mr. A and Mrs. B. Mr. A lived with Mr. D and Mr. E on the land area created by them but they had not yet been granted a land use right certificate. When the State had the policy of granting a certificate of land use right under the Land Law 1993, Mr. A declared and registered the land use right and was granted a certificate of land use right by the People's Committee of district X; At that time, Mr. D and Mr. E were still alive and had no objections. After Mr. D and Mr. E died, Mrs. B filed a lawsuit asking for the division of the two's inheritance. So, will the case fall under the jurisdiction of the People's Court of the district or the People's Court of the province?

Clause 5 Article 26 of the Civil Procedure Code stipulates civil disputes falling under the courts' jurisdiction, including disputes over property inheritance.

Clause 1 Article 35 of the Civil Procedure Code stipulates: “1. People's Courts of districts shall have the jurisdiction to settle according to first-instance procedures the following disputes:

a) Disputes over civil matters, marriage and family, prescribed in Articles 26 and 28 of this Code; except for disputes prescribed in clause 7 Article 26 of this Code;

b) Disputes over business/trade activities prescribed in clause 1 Article 30 of this Code;

c) Labor disputes prescribed in Article 32 of this Code”.

Article 34 of the Civil Procedure Code stipulates:

“1. When resolving civil cases, the Courts may revoke particular decisions of agencies or organizations or competent persons of such agencies or organizations in particular cases which are obviously unlawful, infringing upon the rights and legitimate interests of involved parties in these civil cases.

2. Particular decisions specified in clause 1 of this Article are decisions on particular matters that have been issued and applied once to one or a number of particular entities. If the civil cases are related to such decisions, they must be considered in such the same civil cases by the courts.

3. When considering repealing decisions specified in clause 1 of this Article, the Courts shall invite agencies, organizations or competent persons that have issued such decisions to participate in the procedures in the capacity as person with relevant interests and duties.

Agencies, organizations, competent persons who have issued the decisions must participate in the procedures and present their opinions about the particular decisions repealed by the courts.

4. Competence of Courts in charge of civil cases subject to considering the repealing of particular decisions specified in clause 1 of this Article shall be determined according to corresponding provisions in the Law on administrative procedures about competence of People’s Courts of districts/provinces”.

Clause 4 Article 32 of the Law on Administrative Procedures stipulates jurisdiction of provincial-level courts as follows: “Lawsuits over administrative decisions or acts of district-level People’s Committees and district-level People’s Committee chairpersons within the same administrative boundaries with the courts”.

Thus, in case the litigant initiates a lawsuit to request the division of the inheritance and does not request to annul the land use right certificate; pursuant to Clause 5, Article 26 and Clause 1, Article 35 of the Civil Procedure Code, the case falls under the jurisdiction of the district-level People's Court.

Thus, in case the litigant initiates a lawsuit to request the division of the inheritance and requests to annul the land use right certificate; pursuant to Article 34 of the Civil Procedure Code, the case falls under the jurisdiction of the provincial-level People's Court.

8. In a civil case, the defendant makes a counter-claim and the person with related interests and obligations makes an independent claim. After that, the defendant, the person with related interests and obligations has an application to withdraw a part of the counterclaim, the independent claim. Should the court issue a decision to suspend the settlement of the withdrawn counterclaim or independent claim and how will the court fee advance be handled?

Clause 2 Article 244 of the Civil Procedure Code stipulates: “Where an involved party voluntarily withdraws part or whole of his/her claim, the Trial Panel may accept such request and terminate the trial regarding the withdrawn part or whole of the claim”.

According to Clause 3, Article 18 of Resolution No. 326/2016/UBTVQH14, “In case the court issues a decision to suspend the settlement of a claim in a civil case because the defendant withdraws his/her counterclaim, the person with related interests and obligations withdraws his/her independent claim, the court fee advance will be returned to the payer”.

Thus, if the plaintiff still maintains the lawsuit claim, and the defendant or person with related interests and obligations withdraws part of the counterclaim or independent claim, the Court shall terminate the settlement of the withdrawn counterclaim or the independent claim, and the court fee advance shall not be returned to the involved parties. The suspension and handling of the court fee advance will be assessed and decided by the Trial Panel in the judgment. In case the defendant or person with related interests and obligations withdraws the whole counterclaim or independent claim, the court cost advance will be returned to the involved parties by the court.

9. The plaintiff has fully and correctly written the addresses of the places of residence, workplaces, or head offices of the defendant and persons with related interests and obligations according to the addresses stated in the written transaction or contract. Does the Court have to request additional documents verifying the residence of the defendant and persons with related interests and obligations to accept the case? During the settlement of the case, the Court cannot serve the court papers to the defendant and the persons with related interests and obligations at the addresses stated in written transactions or contract provided by the plaintiff. The court conducted the verification in the locality, but the defendant had left the place of residence 6 months ago. In this case, will the Court decide to suspend the settlement of the case or continue to resolve the case?

Point e Clause 1 Article 192 of the Civil Procedure Code stipulates: “If in the petitions, the litigators have written sufficiently and accurately the residential addresses of the defendants and/or the persons with relevant interests and duties but such persons change their residences regularly without notification to competent agencies/persons according to law regulations on residence to evade obligations towards the litigators, the Judges shall not return the lawsuit petitions but regard the defendants/persons with related interests and duties as purposely concealing their addressees and accept the petition and conduct settlement according to general procedures.

Point a, Clause 1, Article 5 of Resolution No. 04/2017/NQ-HDTP dated May 5, 2017 on guidelines for Clauses 1 and 3, Article 192 of the Civil Procedure Code No. 92/2015/QH13 on return the lawsuit petition, the right to re-file a lawsuit petition (hereinafter referred to as Resolution No. 04/2017/NQ-HDTP) specifies: "Address is the residence of the defendant, person with related rights and obligations” specified at Point e, Clause 1, Article 192 of the Civil Procedure Code 2015 is determined as follows: If the defendant, the person with related interests and obligations is a Vietnamese citizen or an overseas Vietnamese who still retains Vietnamese nationality and returns to Vietnam to live, his/her place of residence is the lawful residential address where the defendant and the person with related interests and obligations permanently or temporarily resides or lives in accordance with the Law on Residence”.

Clause 2, Article 5 of Resolution No. 04/2017/NQ-HDTP stipulates: “The petitioner has provided the address of the “place of residence, workplace of head office” of the defendant, the person with related interests and obligations to the Court in accordance with law and instructions in Clause 1 of this Article at the time of filing a lawsuit petition, which is certified by a competent agency or organization or has other grounds to prove that it is the address of the defendant and the person with related interests and obligations. Such address shall be considered correctly written as prescribed in Point e Clause 1 of Article 192 of the Civil Procedure Code 2015”.

Clause 1, Article 6 of Resolution No. 04/2017/NQ-HDTP stipulates: “In case in the lawsuit petition, the plaintiff has fully and correctly written the address of the defendant and the person with related interests and obligations according to the guidance in Article 5 of this Resolution, the Court must receive the lawsuit petition and consider accepting the case according to general procedures”.

Pursuant to the above provisions, if the plaintiff has fully and correctly written the addresses of the places of residence, workplaces or head offices of the defendant and persons with related interests and obligations according to the addresses stated in the written transaction or contract, the court has to accept the case without any request for additional documents verifying the residence of the defendant and persons with related interests and obligations.

Following the acceptance of the case, if the court fails to serve the court papers or verifies that they have left the place of residence 6 months ago, this is determined to be the case where the defendant and the person with related rights and obligations hide their address. According to Points a and b, Clause 2, Article 6 of Resolution No. 04/2017/NQ-HDTP to continue to settle the case according to general procedures without issuing a decision to terminate the settlement of the case.

10. A sues B to pay an amount of VND 10,000,000 and 20 maces of gold. When the Court conducts the mediation, A only asks B to repay VND 10,000,000, not mentioning 20 maces of gold. So, how does the judge make a decision to recognize the agreement of the involved parties and handle the court fee advance for 20 maces of gold?

The Civil Procedure Code does not stipulate how to settle the case if the involved parties withdraw part of their lawsuit claims before the opening of the court sessions, but only stipulates how to settle the case if the involved parties withdraw the entire lawsuit claims at Point a, Clause 2. Article 210, Point c Clauses 1, 2, 3, 4 Article 217, Clause 1 Article 29, Article 244 of the Civil Procedure Code. In specific, Clause 2 Article 244 of the Civil Procedure Code stipulates: “Where an involved party voluntarily withdraws part or whole of his/her claim, the Trial Panel may accept such request and terminate the trial regarding the withdrawn part or whole of the claim”.

In this case, A's withdrawal of the request for 20 maces of gold must be recorded in the minutes of the meeting to check the handover, access and disclosure of evidence and mediation. The Court shall, based on Article 212 of the Civil Procedure Code, issue a decision to recognize the agreement of the involved parties.

Regarding court fees, according to Clause 7, Article 26 of Resolution No. 326/2016/UBTVQH14, “If the involved parties can reach an agreement on the settlement of the case in a mediation session before the Court open the official court hearing, they shall bear 50% of the court fee, even for a monetary claim”.

Therefore, the involved parties must bear 50% of the court fee for the amount of VND 10,000,000. Regarding the court fee advance paid for the monetary claim of 20 maces of gold, the involved parties will not have to bear this court fee, so they will be refunded.

11. In a marriage and family case, before the trial is opened, the involved parties voluntarily divorce but cannot agree on common children and common property. Because the involved parties could not reach an agreement on the settlement of the whole case, the Court decided to bring the case to trial and issued a first-instance judgment. In this case, how should the court decide on the court fee?

Clause 4 Article 147 of the Civil Procedure Code stipulates: “The plaintiffs in divorce cases must pay first-instance Court fees, without depending on whether the Courts accept their petitions or not. In cases where both parties voluntarily agree on their divorce, each involved party must bear half of the first-instance Court fees”.

Point a Clause 5, Article 27 of Resolution No. 326/2016/UBTVQH14 stipulates: “The plaintiffs in divorce cases must pay first-instance Court fees, without depending on whether the Courts accept their petitions or not. In cases where both parties voluntarily agree on their divorce, each involved party must bear half of the first-instance Court fees”.

Pursuant to the above provisions, in a divorce case, the plaintiff must bear the entire first-instance civil court fee, in case of consent to divorce, the involved parties must bear 50% of the statutory court fee (each must bear 25% of the statutory court fee).

In this case, because the involved parties could not reach an agreement on the settlement of the whole case, the Court decided to bring the case to trial and issued a first-instance judgment. Because the involved parties have agreed to voluntarily divorce, the involved parties only have to bear 50% of the statutory court fee for the divorce petition (each party must bear 25% of the statutory court fee); in terms of property relations, the amount of court fee each party must bear is based on the value of the property that each party is divided according to the law on court fees.

The above provisions are answers to a number of problems in the adjudication of the Council of Judges, the Supreme People's Court to the Courts for study and reference in the process of settling cases under your jurisdiction.

---------------

This document is handled by Vinas Doc. Document reference purposes only. Any comments, please send to email: [email protected]