Thông tư liên tịch 02/2016 về phối hợp trong việc thi hành một số quy định của Bộ luật Tố tụng dân sự

JOINT CIRCULAR

Regulations on coordination between the people's procuracies and the people's courts in the implementation of a number of provisions of the Civil Procedure Code

Pursuant to the Law on Organization of People’s Procuracies dated November 24, 2014;

Pursuant to the Law on Organization of People’s Courts dated November 24, 2014;

Pursuant to the Civil Procedure Code dated November 25, 2015;

Pursuant to the Law on Promulgation of Legal Documents dated June 22, 2015;

The Prosecutor General of the Supreme People’s Procuracy and the Chief Justice of the Supreme People’s Court promulgate the Joint Circular providing regulations on coordination between the people's procuracies and the people's courts in the implementation of a number of provisions of the Civil Procedure Code (hereinafter referred to as CPC).

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Joint Circular regulates the coordination in implementing a number of tasks, powers and responsibilities of the Procuracy and Court in supervising the settlement of a civil case or matter; participating in court hearings and meetings of the Court; sending files, documents and evidence, sending procedural documents; supervising the settlement of complaints and denunciations and exercising the procuracy's rights to request, recommend or protest in civil procedures.

Article 2. Signing of the protest decision

A chief justice or chief procurator who has decided to protest shall directly sign the protest decision or assign a deputy chief justice or a deputy chief procurator to sign the protest decision. A deputy chief justice or a deputy chief procurator signing the protest decision must clearly state "sign on behalf of the chief justice" or "sign on behalf of the chief procurator".

Article 3. Responsibilities of the court and procuracy in case the court institutes a criminal case

After receiving the decision to institute a criminal case, documents and evidence proving the criminal act sent by the court as prescribed in Clause 1, Article 497 of the CPC, the procuracy shall send the decision to institute criminal cases, documents and evidence to the competent investigative agency to conduct the investigation and notify the court. If the court's decision to institute a criminal case is groundless, the procuracy shall protest to a higher court.

The investigation of a criminal case or the settlement of a protest by the procuracy shall comply with the provisions of the Criminal Procedure Code and other relevant laws.

Chapter II

SENDING FILES, DOCUMENTS, EVIDENCE AND PROCEDURAL DOCUMENTS BETWEEN COURTS AND PROCURACIES

Article 4. The court shall send the civil case files to the procuracy to participate in the court hearing or meeting

1. For a first-instance court hearing, appeal court hearing, cassation court hearing, reopening court hearing, the sending of a civil case file to the procuracy shall comply with Clause 2 Article 220, Article 292, Clause 3 Article 318, Clause 2 Article 323, Clause 2 Article 336, Article 357 of the CPC.

In case the Prosecutor General of the Supreme People’s Procuracy or the Chief Justice of the Supreme People’s Court protests through cassation or reopening procedures against legally effective judgments or decisions of provincial-level and district-level people’s courts, the decision to protest together with the case file shall be immediately sent to the superior people's court. After accepting a civil case for cassation or reopening trial, the superior people's court shall immediately send the case dossier to the superior people’s procuracy for study and participation in the trial. Within 15 days after receiving the file, the superior people’s procuracy shall return it to the superior people's court.

2. For a meeting to consider the overdue appeal, the appeal court shall forward the overdue appeal petition, the appellant’s written explanation of the reason for late filing of the appeal, documents and evidence (if any) to the same-level procuracy. Within 5 days after receiving an overdue appeal petition, documents and evidence, the procuracy shall return it to the court.

3. For an appellate meeting to consider the first-instance court's decision which is appealed or protested against, the appeal court shall send the case file to the same-level procuracy. Within 15 days after receiving the file, the procuracy shall return it to people's court.

4. For a meeting to consider the petition or a meeting to consider the appeal or protest in the procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of civil judgments or decisions of foreign courts which are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards, the court shall send the file together with the decision to open a meeting to the same-level procuracy within 15 days before the date of opening the meeting. Within 15 days after receiving the file, the procuracy shall return it to people's court.

5. For a meeting to review a decision of the Judicial Council of the Supreme People’s Court according to special procedures or a meeting to settle a civil matter, the sending of a civil case or matter file to the procuracy shall comply with Clauses 1 and 5 Article 359, Clause 3 Article 366, and Clause 3 Article 373 of the CPC.

In case there is a request from the National Assembly Standing Committee, a recommendation from the Judicial Committee of the National Assembly or a proposal from the Chief Justice of the Supreme People’s Court on reconsidering the decision of the Judicial Council of Supreme People’s Court, the Supreme People’s Court shall send to the Supreme People's Procuracy a copy of such written request, recommendation or proposal together with the case file within 5 days from the date of receipt of such request, recommendation or proposal.

6. In case the procuracy has received files for consideration and protest according to appeal, cessation, reopening procedures or consideration of petitions according to special procedures, the court is not required to send the file to that procuracy to participate in the court hearing or meeting, but only sends the decision to bring the case to trial and the decision to open a meeting to the procuracy in accordance with the CPC and this Joint Circular.

Article 5. Sending of a civil case file from the court to the procuracy to consider the protest

1. The sending of a civil case or matter file to the procuracy to consider the protest according to appellate procedures, considering and protesting against court decisions in the procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of civil judgments or decisions of foreign courts which are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards shall be implemented as follows:

a) After receiving the judgment or decision of the first-instance court that has not yet taken legal effect, if the same-level procuracy or the immediate higher-level procuracy deems it necessary to study the civil case or matter file to consider the protest according to appellate procedures, the procuracies shall send a written request to the first-instance court to send the file to the procuracies.

After receiving one of the decisions specified in Clauses 4 and 5 of Article 437, Clause 5 Article 438, Clause 3 Article 446, Clause 1 Article 449, Clauses 2 and 3 Article 457, and Clause 5 Article 458 of the CPC, if the provincial-level people’s procuracy or superior people’s procuracy deems it necessary to study the file to consider the protest, the procuracy shall send a written request to the court managing the file to send the file to the procuracy.

b) Within 3 working days from the date of receiving the request, the court shall transfer the file to the procuracy as requested in writing.

c) Immediately after the expiration of the time limit for protest specified in Clauses 1 and 2 Article 280, Clause 2 Article 322, Clause 2 Article 372, Clause 2 Article 442, Clause 3 Article 446, Article 450, and Clause 2 Article 461 of the CPC, the procuracy shall return the file to the court that has sent such file to it.

2. When a competent Court or Procuracy deems it necessary to study the civil case or matter file to consider a protest according to cassation or reopening procedures, the sending of the civil case or matter file shall be carried out as follows:

a) The superior people's court, the superior people's procuracy shall send a written request to the provincial-level people's court or the district-level people's court which has issued the legally effective judgment or decision to transfer such case or matter file to the superior people's court, the superior people's procuracy. The Supreme People's Court and the Supreme People's Procuracy shall send a written request to the court managing such file to send such civil case or matter file to the Supreme People's Court and the Supreme People's Procuracy.

Within 7 working days after receiving the written request for sending of the file, the court shall send the civil case or matter file to the court and the procuracy as requested in writing.

Within 6 months from the date of receipt of the file or in case the remaining time limit for protest according to cassation or reopening procedures is not more than 6 months, immediately after the expiration of the protest time limit specified in Article 334 or Article 355 of the CPC, the court and the procuracy shall return the file to the court that has sent the file to them.

b) In case the Prosecutor General of the Supreme People’s Procuracy or the chief procurator of a superior people’s procuracy protests against cassation or reopening, the procuracy shall immediately transfer the case or matter file together with the protest decision to the court with cassation or reopening competence in accordance with Clause 3 Article 336 or Article 357 of the CPC; and notify the court that has sent the file to the procuracy.

3. In case both the court and the procuracy request the sending of civil case or matter file for consideration and protest according to cassation or reopening procedures, the sending shall be carried out as follows:

a) In case of receiving the same written request from both the court and the procuracy or in case the procuracy’s written request arrived first but within 7 working days from the date of receipt of the request, the court's request arrives while the file has not been sent to the procuracy, the court managing the file shall send the file to the requesting court and notify in writing the requesting procuracy.

b) In case the court or the procuracy is the agency that receives the file first, within 3 months (or not exceeding 6 months for complex cases or objective obstacles) from the date of receiving the file, if the court or procuracy does not protest, the sending of the file shall be carried out as follows:

b1) In case the requesting court is the agency that receives the file first, but fails to protest within the time limit guided at Point b of this Clause, if the procuracy continues to request the sending of the file, the requesting court shall send the file to the procuracy that has made the request and immediately notify the court that has sent the file; if the procuracy has made a request not to continue the file sending request, the court shall return the file to the court that has sent the file.

Within the time limit guided at Point b of this Clause, if the requesting procuracy receives the file but fails to protest, the procuracy shall send the civil case or matter file to the court that has initially sent the file.

b2) In case the requesting procuracy is the agency that receives the file first, but fails to protest within the time limit guided at Point b of this Clause, if the court continues to request the sending of the file, the procuracy shall send the file to the court that has made the request and immediately notify the court that has initially sent the file; if the court has made a request not to continue file sending request, the procuracy shall return the file to the court that has initially sent the file.

Within the time limit guided at Point b of this Clause, if the requesting court receives the file but fails to protest, the court shall send the civil case or matter file to the court that has initially sent the file.

c) In case where the court managing the files received a request from a court or a procuracy first and at this time there is no request for postponement of the enforcement of judgment, if within 7 days from the date of receipt of the request, the file has not been sent to that agency, the managing court shall transfer the file to the court or the procuracy that requested the postponement and notify the agency of the not sending of the file .

d) The Court and the Procuracy shall cooperate in sending the case file to ensure the consideration of the protest in one of the following cases:

d1) The remaining time limit for protest according to cassation or reopening procedures is not exceed 6 months;

d2) After the court has transferred the file to the requesting court or procuracy without receiving a request for postponement of the enforcement of judgment, it receives a request to send the file from the court or procuracy requesting the postponement of the enforcement of judgment.

d3) For the purpose of serving the supervision activities of competent agencies, organizations and persons.

Article 6. Sending of files for consideration of petitions or request for reconsideration of decisions of the Judicial Council of Supreme People’s Court

When a court or procuracy deems it necessary to study the case file to consider the petition or request for reconsideration of the decision of the Judicial Council of the Supreme People's Court, the sending of the case file shall be carried out as follows:

1. The Supreme People's Court and the Supreme People's Procuracy shall send a written request to the court managing the file to send the case file to the Supreme People's Court and the Supreme People's Procuracy.

Within 7 working days after receiving the written request for sending of the file, the court managing the file shall send the case file to the Supreme People’s Court and the Supreme People’s Procuracy.

Within 6 months from the date of receipt of the file, the Supreme People's Court and the Supreme People's Procuracy shall return the file to the court that has sent the file to them.

2. In case the Prosecutor General of the Supreme People’s Procuracy proposes to review the decision of the Judicial Council of the Supreme People's Court, the Supreme People's Procuracy shall immediately send the case file together with the petition to the Supreme People's Court; and notify the Court that has sent the file.

Article 7. Modes of sending files

The sending of civil case or matter files shall be carried out by post or in person.

All documents included in the civil case or matter file (including old documents and newly added documents, if any) must be numbered and arranged in accordance with the provisions of Clause 2 Article 204 of the CPC and a list of documents must be attached. Before sending the civil case or matter file from the court to the procuracy or vice versa, the sending agency must fully inspect the documents in the civil case or matter file.

In case the file is sent by post, the first person who directly receives the file of the procuracy or the court shall check the seal of the file; if the seal is no longer intact, a written record must be immediately made to confirm the status of the file, with confirmation from the postal staff, and a report shall be sent to the leader of the unit directly in charge, and a notice shall be immediately sent to the sending agency for coordination in handling. In case the seal is intact but the documents contained in the file are missing compared to the list of documents, it must be reported to the leader of the unit directly in charge to make a written record immediately and notify the sending agency for coordination in handling. The date of receipt of the file is the date the file-receiving agency receives the file at its head office.

In case the civil case file is directly sent, the procedures for handing over and receiving the file from the court to the procuracy shall be carried out at the head office of the procuracy; the procedures for handing over and receiving the file from the procuracy to the court shall be carried out at the head office of the court. Recipients must compare the list of documents with the numbered documents in the file. The handing over and receiving must be recorded in writing, clearly stating the time, place of handover and receipt of the file, the status of the file, and the signatures and full names of the persons conducting the handover and receipt of the file.

Article 8. Transfer of documents and evidence additionally provided and collected to the procuracy

Before opening a court hearing or meeting, if the civil case or matter file has been sent to the procuracy but there are documents and evidence provided to the court by involved parties, individuals, agencies or organizations, or additionally collected by the court, the court shall immediately send to the procuracy copies of such documents and evidence.

Article 9. Notification and sending of documents and evidence collected by the procuracy

Documents and evidence collected by the procuracy under Clause 6 Article 97 and Clause 2 Article 330 of the CPC shall be notified to involved parties in accordance with Clause 5 Article 97 of the CPC, and sent to the court for inclusion in the civil case or matter file and preserved at the court under Clause 1 Article 107 of the CPC.

Article 10. Sending decisions on settlement of complaints and petitions about the transfer of a civil case or matter to another court

Decisions on settlement of complaints and petitions about the transfer of a civil case or matter to another court specified in Clause 1 Article 41 of the CPC shall be immediately sent to the same-level procuracy.

Article 11. Sending of a written notice of the refusal to issue a decision to apply, change or cancel the provisional urgent measure

The judge's written notice of refusal to issue a decision to apply, change or cancel the provisional urgent measures specified at Point a Clause 2 and Clause 3 Article 133, Article 137 and Clause 3 Article 138 of the CPC shall be immediately sent to the same-level procuracy.

Article 12. Sending of written return of lawsuit petition or written request; written notice of the opening date of the meeting to settle complaints and recommendations; decision on settlement of complaints and recommendations on the return of lawsuit petition or written request

1. The sending of written return of lawsuit petition or written request to the same-level procuracy as prescribed in Clause 2 Article 192 and Clause 2 Article 364 of the CPC shall be carried out on a case-by-case basis.

2. The court shall notify in writing the same-level procuracy of the date of opening a meeting to consider and settle complaints and recommendations about the return of lawsuit petition or written request immediately after deciding to open the meeting.

3. The judge's decision to respond to complaints and recommendations specified in Clause 4 Article 194, Clause 3 Article 364 of the CPC shall be immediately sent to the same-level procuracies. The decision on the settlement of complaints and recommendations of the chief justice of a superior people’s court or the Chief Justice of the Supreme People’s Court as prescribed in Clause 7 Article 194, Clause 3 Article 364 of the CPC shall be sent to the same-level procuracy and the procuracy that have made the recommendations within 3 working days from the date of issuance of the decision.

Article 13. Sending of a written notice of the time and place to re-open the court hearing after the postponement and the continuation of adjournment of a court hearing

1. The notification of the time and place to re-open the court hearing as prescribed in Clause 4 Article 233 of the CPC shall be made in writing.

2. If the trial panel has decided to suspend the court hearing for a period of less than one month; upon the expiration of this period, if the court decides to continue suspending the court hearing because the reason for the suspension of the court hearing has not been remedied, the court shall immediately notify in writing the same-level procuracy of the continuation of the adjournment. The time limit for adjournment of a court hearing is 1 month, counting from the date the trial panel decides to suspend the court hearing.

Article 14. Sending of a written notice of an appeal, change or addition of an appeal and withdrawal of an appeal

1. The first-instance court shall immediately send a written notice to the same-level procuracy about the appeal as prescribed in Clause 1 Article 277 of the CPC. The sending of a written notice of an appeal to the same-level procuracy shall be carried out on a case-by-case basis. Where in a case there are many appellants, the court may notify the appeal of such appellants in one written notice.

2. Before opening a court hearing, if the appellant changes, supplements or withdraws his/her appeal, the appeal court shall immediately send a written notice to the same-level procuracy of the change, supplementation or withdrawal of the appeal according to Clause 4 Article 284 of the CPC. Where in a case there are many appellants change, supplement or withdraw their appeal, the court may notify the appellants’ change, supplementation or withdrawal of the appeal in one written notice.

Article 15. Sending of a written notice, decision on consideration of an overdue appeal

1. The appeal court shall send a written notice the same-level procuracy about of the time to open the meeting to consider the overdue appeal specified in Clause 2 Article 275 of the CPC. In case of postponement of a meeting, the court shall notify the time of reopening of the meeting after the postponement.

2. The appeal court shall send to the same-level procuracy the decision to accept the overdue appeal or the decision not to accept the overdue appeal specified in Clause 3 Article 275 of the CPC within 5 working days from the date of issuance of the decision.

Article 16. Sending of a written explanation of the reason for an overdue protest

In cases where the date, month, year indicated on the protest decision of the procuracy has exceeded the time limit for protest as prescribed in Articles 280, 322, 372, 442, 446, 450 and 461 of the CPC, the first-instance court receiving the protest shall send a written request to the procuracy that protested to explain the reason for the overdue protest.

The procuracy's written explanation of the reason for the overdue protest shall be sent to the court within 5 working days from the date of receipt of the request.

Article 17. Sending of the decision to withdraw the protest according to cassation or reopening procedures, and written notice of the time of opening the cassation or reopening court hearing

1. The court competent to hear the case according to cassation or reopening procedures shall immediately send to the same-level procuracy the decision to withdraw the protest according to cassation or reopening procedures of the chief justice specified in Clause 2 Article 335 of the CPC.

The decision to withdraw the protest according to cassation or reopening procedures of the chief procurator specified in Clause 2 Article 335 of the CPC shall be immediately sent to the court competent to hear the case according to cassation or reopening procedures.

2. The court competent to hear the case according to cassation or reopening procedures shall send written notices to the procuracy of the time of opening the cassation or reopening court hearings. In case of postponement, the time for reopening the cassation or reopening court hearings after postponement shall be notified. The notification shall be made at least 7 days before the date of opening the court hearing.

Article 18. Sending of the decision of the superior people’s court to consider an appeal or a protest in the procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of civil judgments or decisions of foreign courts which are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards

The decision of the superior people’s court to consider the appealed or protested decision in the procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of civil judgments or decisions of foreign courts which are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards under Clause 4 Article 443, Clause 3 Article 446, Article 450 and Clause 6 Article 462 of the CPC, shall be send to the same-level procuracy within 15 days from the date of issuance of the decisions.

Article 19. Sending of the decision on settlement of a complaint and conclusion on denunciation contents

1. The court competent to settle complaints and denunciations shall send the first-time complaint settlement decision and conclusion on denunciation contents to the same-level procuracy within 3 working days from the date of issuance of the decision on settlement of a complaint and conclusion on denunciation contents.

2. The court competent to settle complaints shall send the second-time complaint settlement decision to the same-level procuracy within 7 days from the date of issuance of the decision on settlement of a complaint.

Chapter III

IMPLEMENTATION OF SOME RIGHTS TO REQUEST AND MAKE RECOMMENDATIONS OF THE PROCURACIES

Article 20. The rights to request and make recommendations of chief procurators and procurators

1. The chief procurators shall decide to exercise the rights to request and make recommendations specified in the CPC and this Joint Circular.

2. The procurator shall decide to exercise the following rights to request and make recommendations:

a) The rights to request and make recommendations specified in Clauses 3, 6 and 8 Article 58, Clause 4 Article 236, Point c Clause 1 Article 254, Article 255 and Article 258 of the CPC;

b) Request the court to send the civil case or matter file according to Articles 4, 5 and 6 of this Joint Circular;

c) Request the court to allow to copy the lawsuit petition or written request and documents and evidence in case of the return of the lawsuit petition or written request according to Article 21 of this Joint Circular;

d) Request the petitioner to amend and supplement the petition for review of a court’s legally effective judgment or decision according to cassation or reopening procedures under Clause 2 Article 329, Article 357 of the CPC;

dd) Request the court, other agencies, organizations and individuals to provide dossiers and documents on the settlement of complaints and denunciations according to Article 515 of the CPC and Clause 3 Article 34 of this Joint Circular;

e) Recommendations about the decision on application, change or cancellation or non-application, non-change or non-cancellation of a provisional urgent measure at court hearings;

g) Recommendations about the return of the lawsuit petition or written request to the court that returned the lawsuit petition or written request under Clause 1 Article 194, Clause 3 Article 364 of the CPC.

Article 21. Requesting the court to allow to copy the lawsuit petition, written request, documents and evidence in case of the return of the lawsuit petition or written request

1. In case the procuracy needs to consider and recommend the return of a lawsuit petition or a written request or after receiving the notice of opening a meeting to settle complaints about the return of the lawsuit petition or the written request, the procuracy shall send a written request to the court to allow to copy some or all of the copies of the lawsuit petition, written request, documents and evidence.

2. Within 24 hours after receiving the procuracy's request, the court shall send to the procuracy the documents to be copied upon request at the court's headquarters. Within 24 hours after receiving the documents to be copied, the procuracy must return the documents to the court.

Article 22. Requesting the court to verify and collect evidence

1. During the settlement of a civil case or matter, if the procurator deems it necessary to verify and collect more evidence to ensure the timely and lawful settlement of the civil case or matter, the procurator shall send a written request to request the court to verify and collect evidence as prescribed in Clause 3 Article 58 of the CPC.

2. Before opening a court hearing or meeting, the procurator shall send a written request to the court to verify and collect evidence to the court currently settling the civil case or matter. The written request must clearly state the evidence to be verified and collected, the reasons for the verification and collection of such evidence. The court shall send the procurator copies of documents and evidence as soon as they are collected by the court. If the court receives the documents and evidence during the court hearing or meeting, the Court shall publicize such documents and evidence in accordance with Point c Clause 1 Article 254 and Clause 1 Article 303 of the CPC.

If it is impossible to conduct the verification and collection of evidence at the request of the procurator, or if the court deems it unnecessary to conduct the verification and collection, no later than the date of expiration of the time limit for opening the court hearing or meeting under the court decision, the court shall notify the procurator in writing and clearly state the reasons thereof.

3. At the court hearing or meeting, the procurator who requests the court to verify and collect evidence must clearly state the evidence to be verified and collected, and the reasons for the verification and collection of such evidence. Pursuant to the provisions of Point c Clause 1 Article 259 of the CPC, the judge or trial panel shall decide to accept or reject the procurator's request. If the judge or trial panel rejects the procurator's request, the reason must be clearly stated and the procurator shall continue to participate in the court hearing or meeting. Request the court to verify and collect evidence of the procurator at the court hearing or meeting, and the judge's or council's acceptance or rejection of the procurator's request must be recorded in the minutes of the court hearing or meeting.

In case the court hearing or meeting has been suspended but the verification and collection of evidence at the request of the procurator are impossible to perform, the court shall notify the procurator in writing and state the reasons before the court resumes the trial.

Article 23. Request for amendment and supplementation of minutes of a court hearing and meeting

At the end of a court hearing, the procurator has the right to read the minutes of the court hearing or meeting, and to request revisions and additions to the minutes. The procurator's request shall be immediately executed and the procurator shall sign for certification of the amended and supplemented contents as prescribed in Clause 4 Article 236 of the CPC.

Chapter IV

PROCURACIES’ PARTICIPATION IN COURT HEARINGS OR MEETINGS

Article 24. Notification of a procurator to participate in a court hearing or meeting

1. For a civil case or matter in which the procuracy must participate in a court hearing or meeting, within 10 days from the date of receipt of the court's written notice of acceptance of the civil case or matter as prescribed in Articles 196, 285 and 365 of the CPC, acceptance of a case file as prescribed in Article 436, Clause 3 Article 446, Clause 1 Article 449 and Article 455 of the CPC, the procuracy shall send to the court the decision on assignment of procurator to participate in the court hearing or meeting.

Before a decision to bring a case to trial is issued, if the procuracy discovers that the civil case falls into the case that the procuracy must participate in the first-instance court hearing, which has expired, the procuracy shall immediately send to the court the decision on assignment of procurator to participate in the court hearing. The court shall send the case file to the procuracy for study and participation in the first-instance court hearing as prescribed in Clause 1 Article 4 of this Joint Circular.

2. In case the procuracy participates in an appellate meeting to settle a civil matter or the meeting to review the appealed or protested decision in the procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of civil judgments or decisions of foreign courts which are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards, the procuracy shall send to the court the decision on assignment of procurator to participate in the meeting within 7 days from the date of receipt of the court's decision to open the meeting.

3. In case the procuracy participates in a meeting to consider and settle complaints or recommendations about the return of a lawsuit petition, written request or an appellate meeting of a first-instance court’s decision which is appealed or protested against or a meeting to consider an overdue appeal or a meeting to consider reasons for late submission of the receipt of the appeal court fee advance, the procuracy shall send to the court the decision on assignment of procurator to participate in the meeting immediately after receiving the court's notification of the time to open the meeting.

4. If the case is complicated or deems it necessary, the chief procurator may assign an alternate procurator.

The full name of the procurator and alternate procurator (if any) in the decision on assignment of procurator in Clauses 1, 2 and 3 of this Article must be clearly stated.

Article 25. Notification of replacement of a procurator participating in a court hearing or meeting

1. After sending to the court a decision on assignment of a procurator to participate in a court hearing or meeting, if there is a change in the assigned prosecutor, the procuracy shall send to the court a decision on replacement of the procurator. The full name of the alternate procurator shall be written in the decision on replacement.

2. Before opening a court hearing or meeting to settle a civil case or matter, if the court receives a written request for replacement of a procurator, the court shall immediately send such written request to a chief procurator competent to consider and decide under Clause 1 Article 62 and Clause 3 Article 368 of the CPC. Within 7 days from the date of receipt of the written request for replacement of the procurator or at least 1 day before the date of opening the court hearing or meeting as determined by the court, with the remaining time not exceeding 7 days, the procuracy shall send to the court the decision on replacement of the procurator or the written notice that there is no change of the procurator, clearly stating the reason.

In case the procuracy makes a protest, if a written request for replacement of the assigned prosecutor is received before the opening of the court hearing or meeting, but by the date of the opening of the court hearing or meeting as determined by the court, the remaining time is not more than 7 days, and the procuracy has not yet assigned another alternate procurator, the procuracy shall notify the court. In case of replacement of a procurator, the procuracy shall send to the court a decision on replacement of the procurator. If there is no change in the assigned prosecutor, the procuracy shall notify the court in writing, clearly stating the reasons.

3. If during the court hearing or meeting to settle a civil case or matter, a judge, trial panel or council for settlement of the civil matter decides to change the procurator and issues a decision to postpone the court hearing or meeting, the court shall immediately send the decision to postpone the court session or meeting to the chief procurator of the competent procuracy specified in Clause 2 Article 62 and Clause 3 Article 368 of the CPC.

Within 3 working days after postponing a court hearing or meeting, the procuracy shall send to the court a decision on replacement of the procurator.

Article 26. Procuracy's participation in a meeting to consider and settle complaints and recommendations about the return of a lawsuit petition and written request

1. The procurator assigned to participate in the meeting shall consider and settle complaints and recommendations about the return of lawsuit petitions and written requests. In case the procurator is absent, the judge shall still conduct the meeting, unless the procuracy makes a recommendation.

2. At the meeting to consider and settle the complaint of the suer or petitioner/requester, the procurator shall present on the following issues:

a) The groundedness and lawfulness of the protest;

b) The observance of law of proceeding-conducting persons in return of lawsuit petitions or written requests;

c) The groundedness and lawfulness of the return of lawsuit petitions or written requests; the procuracy's view on maintaining the return of lawsuit petitions or written requests or receiving back lawsuit petitions or written requests.

3. At the meeting to consider and settle the procuracy's recommendations, the procurator shall present the following issues:

a) Contents and grounds for the recommendation; the procurator has the right to present additional documents and evidence (if any) and analysis to clarify the procuracy's views on the return of the lawsuit petition;

b) Contents guided at Point b Clause 2 of this Article;

c) The procuracy's view on maintaining the return of lawsuit petitions or written requests or receiving back lawsuit petitions or written requests.

4. In case there is both a complaint of the suer, petitioner/requester and a recommendation of the procuracy, the procurator shall present according to the guidance at Point a Clause 2, and Clause 3 of this Article.

Article 27. The procuracy’s participation in first-instance court hearings

The procuracy shall participate in first-instance court hearings (according to general procedures or summary procedures) of the following civil cases:

1. Civil cases in which the evidence is collected by the court as specified by Clause 2 Article 97 and Articles 98, 99, 100, 101, 102, 103, 104, 105 and 106 of CPC.

2. Civil cases in which disputed objects are public properties or public interests:

a) Public properties mean properties under ownership by the entire people with the State acting as the owner’s representative and performing the unified management in accordance with the Civil Code and other law.

For example: A civil case of dispute over a state agency’s property that is procured from the state budget.

b) Public interests mean material or spiritual benefits related to the society or residential community.

For example: A civil case in which the suer requests an enterprise to pay compensation for damage caused by the environmental pollution.

3. Civil cases in which disputed objects are houses or land use rights, including:

a) Disputes about the persons who have the land use rights or house ownership rights.

For example: Dispute between A and B over the land use rights of a land parcel of 500 m2 currently managed and used by B. A initiates a lawsuit to request the court’s settlement to force B to return the land parcel to A. In such case, the disputed object is the land use rights, subject to the procuracy’s participation in the first-instance court hearing.

b) Disputes over contracts with subjects of the contracts being houses or land use rights (including: Disputes over contracts on exchange of land use rights; disputes over contracts on transfer of land use rights or contracts on purchase of house; disputes over contracts on lease or sublease of land use rights or contracts on lease of house; disputes over contracts on donation of land use rights or contracts on donation of house; disputes over contracts on contribution of value of land use rights as capital or contracts on contribution of value of house as capital, etc.).

Disputes over contracts relating to houses or land use rights that are not the subjects of the contracts shall not require the procuracy’s participation in first-instance court hearings.

For example: A takes out a loan of VND 500 million from the bank B, and at the same time mortgages a house and land use rights worth VND 1 billion in the bank. On the due date of debt repayment, A fails to fulfill the payment obligation, the bank realizes the mortgaged property for debt collection but cannot carry out such realization because the land is subject to planning and not allowed to be exchanged or transferred. The bank initiates a lawsuit to request the court’s settlement to force A to perform the debt repayment obligation. In such civil case, the disputed object is the amount A borrowed from the bank, not the mortgaged house and land use rights, the procuracy’s participation in the first-instance court hearing is, therefore, not required.

c) Disputes over inheritance of land use rights or inheritance of houses;

d) Disputes over reclamation of land use rights or houses lent or given for free stay;

dd) Disputes over division of spousal common property being houses or land use rights during the marital period;

e) Disputes over division of property being houses or land use rights upon divorce or after divorce;

g) Disputes over other civil transactions with transaction subject being houses or land use rights.

4. Civil cases in which the parties are minors, persons who have lost their civil act capacity, persons with a limited civil act capacity or persons with difficulty in perceiving and controlling their acts, specifically:

a) A person who has lost his/her civil act capacity means a person having the court’s legally effective decision to declare that such person has lost his/her civil act capacity under the Civil Code;

b) A person with a limited civil act capacity means a person having the court’s legally effective decision to declare that such person has a limited civil act capacity under the Civil Code;

c) A person with difficulty in perceiving and controlling his/her acts means a person having the court’s legally effective decision to declare that such person has difficulty in perceiving and controlling his/her acts under the Civil Code.

5. Civil cases for which applicable law does not exist shall comply with Clause 2 Article 4 of CPC.

Article 28. Opinions of procurators in first-instance court hearings or meetings

1. In a first-instance court hearing for trial of a civil case (according to general procedures or summary procedures), after the proceeding participants present their arguments and responses, the procurator shall present the procuracy's opinions on the following matters:

a) The observance of the procedural law by the judge, the trial panel and the court clerk from the time the case is accepted for handling to the time before the trial panel deliberates a judgment.

In case the procurator requests the trial panel to redress violations of the procedural law, the trial panel shall consider and decide to accept or reject the request; for cases of refusal, the reason must be clearly stated. The trial panel’s decision on acceptance or rejection shall be discussed and adopted in the courtroom and recorded in the minutes of the court hearing.

b) The observance of the law by civil proceeding participants from the time the case is accepted for handling to the time before the trial panel deliberates a judgment;

c) The settlement of the case, specifically:

c1) Analyze and assess the dispute’s content and the case’s details;

c2) Assess documents and evidence in the case file;

c3) Clearly state legal bases or grounds specified in Article 45 of CPC applied for case settlement; request the court to propose amendments, supplements or annulment of legal documents related to the settlement of the civil case showing signs of contravention of the Constitution, laws or legal documents of superior state agencies (if any);

c4) Give the opinions on acceptance or rejection of the lawsuit, requests of the plaintiff, agencies, organizations, individuals; counter-claim, requests of the defendant; independent claim, requests of persons with related interests or obligations.

2. In a first-instance meeting for settlement of a civil matter, the procurator shall present the procuracy’s opinions on the following matters:

a) The observance of the procedural law by the judge, civil matter settlement panel, court clerk from the time the civil matter is accepted for handling to the time before the judge or the panel issues a decision on settlement of the civil matter;

For cases where the procurator requests the judge or the panel to remedy the violations of the procedural law, to comply with Point a Clause 1 of this Article.

b) The observance of the law by civil proceeding participants from the time the civil matter is accepted for handling to the time before the judge or the panel issues a decision on settlement of the civil matter;

c) The settlement of the civil matter, specifically:

c1) Provide groundedness and lawfulness of the request for settlement of the civil matter;

c2) Analyze and assess the matter’s content, documents and evidence in the file;

c3) Clearly state legal bases or grounds specified in Article 45 of CPC applied for civil matter settlement; request the court to propose amendments, supplements or annulment of legal documents related to the settlement of the civil matter showing signs of contravention of the Constitution, laws or legal documents of superior state agencies (if any);

c4) Give the opinions on acceptance or rejection of requests of the requester for settlement of the civil matter and persons with related interests or obligations.

3. The procurator’s written opinions must be signed by the procurator participating in the court hearing or meeting.

Article 29. Opinions of procurators in meetings to consider the overdue appeal

In a meeting to consider the overdue appeal, the procurator shall present his/her opinions on the observance of the procedural law by the appeal court, from the date of receiving an overdue appeal petition to the time before the panel considering the overdue appeal issues a decision; present his/her opinions on acceptance or rejection of the overdue appeal, and give the analysis to clarify such opinions.

Article 30. Presentations and opinions of procurators in appellate court hearings or meetings

1. In case only the chief procurator of the procuracy makes a protest, in the appellate court hearing (according to general procedures or summary procedures), or in the appellate meeting, the procurator shall present his/her opinions about the following matters:

a) The protest’s content and grounds for the protest; additionally produced documents and evidence (if any); analysis for clarifying the procuracy’s protest opinion for the first-instance judgment or decision;

b) In case the parties or defense counsels of lawful rights and interests of the parties present their opinions about lawfulness and groundedness of the protest, the procurator shall give his/her opinions about such given matters;

c) The observance of the law by proceeding-conducting persons and proceeding participants in the process of settlement of the case at the appellate trial stage;

d) Opinions on settlement of the first-instance judgment or decision or part thereof which is protested against.

2. In case only the parties make an appeal, the procurator shall present his/her opinions about the following matters:

a) Groundedness and lawfulness of the appeal;

b) Contents as guided at Point c Clause 1 of this Article;

c) Opinions on settlement of the first-instance judgment or decision or part thereof which is appealed against.

3. In case the parties make an appeal and the chief procurator of the procuracy makes a protest at the same time, the procurator shall present his/her opinions as follows:

a) For the appeal of the parties, to comply with Point a Clause 2 of this Article;

b) For the protest of the chief procurator of the procuracy, to comply with Point a Clause 1 of this Article;

c) Give opinions about the matters given by the parties or defense counsels of lawful rights and interests of the parties, for cases specified at Point b Clause 1 of this Article;

d) Give opinions about the contents as guided at Point c Clause 1 of this Article;

dd) Give opinions on settlement of the first-instance judgment or decision or part thereof which is appealed or protested against.

4. The procurator’s written opinions must be signed by the procurator participating in the court hearing or meeting.

Article 31. Presentations and opinions of procurators in court hearings of cassation or reopening

1. In case the chief procurator of the procuracy make a protest, the procurator shall present his/her opinions about the following matters in the court hearing:

a) The protest’s content and grounds for the protest; additionally produced documents and evidence (if any); analysis for clarifying the procuracy’s protest opinion for the legally effective judgment or decision or newly found details which may basically change the content of the legally effective judgment or decision;

b) In case the parties, lawful representatives, defense counsels of lawful rights and interests of the parties and other proceeding participants summoned by the court to the court hearing give opinions about the protest, the procurator shall present his/her opinions on such given matters;

c) Opinions on the settlement of the civil case or matter.

2. In case the chief justice of the court makes a protest, the procurator shall present his/her opinions about the following matters in the court hearing:

a) Groundedness and lawfulness of the protest, the reasons of agreeing or disagreeing with the protest opinion of the chief justice of the court;

b) Opinions on the settlement of the civil case or matter.

3. The procurator’s written opinions must be signed by the procurator participating in the court hearing.

Article 32. Opinions of procurators in meetings to consider the written requests in procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of foreign courts’ civil judgments or decisions that are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards

In a meeting to consider the written request in procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of foreign courts’ civil judgments or decisions that are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards, the procurator shall present the procuracy's opinions in accordance with Clause 2 Article 28 of this Joint Circular.

Article 33. Procurators’ participation in meetings to consider the appeals or protests in procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of foreign courts’ civil judgments or decisions that are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards

1. In case the procurator is absent in a meeting to consider a appealed or protested decision in procedures for recognition and enforcement in Vietnam or non-recognition of civil judgments or decisions of foreign courts; non-recognition of foreign courts’ civil judgments or decisions that are not requested to be enforced in Vietnam; recognition and enforcement in Vietnam of foreign arbitral awards, the court shall still conduct the meeting, unless the protest is made by the procuracy.

2. In a meeting, the procurator shall present the procuracy’s opinions in accordance with Clause 1, 2 or 3 Article 30 of this Joint Circular.

Chapter V

SUPERVISION OF THE SETTLEMENT OF COMPLAINTS AND DENUNCIATIONS

Article 34. The procuracy’s right to make requests to the court

1. The procuracy shall request the court of the same level and the court of the lower level to issue a document on settlement of complaints and denunciations in accordance with Chapter XLI of CPC in one of the following cases:

a) The procuracy receives a written complaint or denunciation that the court or the person competent to settle complaints or denunciations fails to issue a document on settlement of complaints or denunciations within the time limit prescribed;

b) The procuracy has grounds to believe that the court or the person competent to settle complaints or denunciations fails to issue a document on settlement of complaints or denunciations within the time limit prescribed.

Within 7 days from the date of receiving the procuracy’s request in cases as guided at Points a and b of this Clause, such court must consider, handle it and notify the request-making procuracy in writing. In a complicated case requiring more time, the court must notify the procuracy in writing of the reason and reply to the procuracy within 15 days from the date of receiving the request.

2. The procuracy shall request the court of the same level to examine the settlement of complaints and denunciations of itself and the court of the lower level in one of the following cases:

a) The procuracy receives a request by a competent agency;

b) The procuracy receives a written complaint or denunciation that the court or the person competent to settle complaints or denunciations commits violations of law during the settlement;

c) The procuracy has grounds to believe that the court or the person competent to settle complaints or denunciations shows signs of violation of law during the settlement.

Within 15 days from the date of receiving the procuracy’s request in cases as guided at Points a, b and c of this Clause, such court must consider, handle it and notify the request-making procuracy in writing. For a complicated case requiring more time, the court must notify the procuracy in writing of the reason and reply to the procuracy within 30 days from the date of receiving the request.

3. The procuracy shall request the court of the same level and the court of the lower level to provide dossiers, documents about the settlement of complaints and denunciations in the following cases:

a) The procuracy receives a request by a competent agency;

b) The procuracy has made a request under Clause 1 or Clause 2 of this Article but the court fails to perform or fails to fully perform the procuracy's request;

c) The decision on second-time settlement of a complaint has been issued but the complainant continues to make complaint;

d) The procuracy needs to consider dossiers and documents to decide on the proposal.

Within 07 days from the date of receiving the procuracy’s request in cases as guided at Points a, b, c and d of this Clause, the court shall send the dossiers, documents relating to the settlement of complaints or denunciations to the request-making procuracy.

Article 35. The procuracy’s right to make proposals to the court

1. If there are grounds to believe that the settlement of complaints or denunciations by a competent court or persons does not comply with the law, the procuracy shall propose to the court of the same level and the court of the lower level to remedy such law violations.

2. In case the procuracy makes a request as prescribed in Article 34 of this Joint Circular or makes a proposal under Clause 1 of this Article, but the court fails to perform or fails to fully perform the procuracy’s request or proposal, the procuracy has the right to make a proposal to the superior court.

3. Within 15 days from the date of receiving a proposal by the procuracy under Clauses 1 and 2 of this Article, the court must consider and reply in writing to the proposal-making procuracy. For a complicated case requiring more time, the court must notify the procuracy in writing of the reason and reply to the procuracy within 30 days from the date of receiving the proposal.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 36. Effect

1. This Joint Circular takes effect on October 18, 2016.

2. Regulations on the procuracy’s participation in first-instance court hearings or first-instance meetings in cases with parties being persons with difficulty in perceiving and controlling their acts and in civil cases and matters for which applicable law does not exist take effect on January 01, 2017 (the effective date of the Civil Code No. 91/2015/QH13).

Article 37. Transitional provisions

The application of this Joint Circular for civil cases and matters that have been accepted and settled before the effective date of this Joint Circular shall be as follows:

1. For civil cases and matters that are accepted for settlement by the court with the court’s judgments or decisions legally effective before the effective date of this Joint Circular, this Joint Circular shall not apply to conduct the protest according to cassation procedure.

2. For civil cases subject to the procuracy's participation in first-instance court hearings specified in Clause 2 Article 21 of the CPC and as guided in Article 27 of this Joint Circular that are accepted by the court before the effective date of this Joint Circular and of which the files have not been transferred by the court to the procuracy for research and participation in the court hearings, but the decisions to bring the cases for first-instance trial are issued from the effective date of this Joint Circular onwards, the court shall transfer such case files to the procuracy for participation in the first-instance court hearings under this Joint Circular.

3. For civil cases of which the first-instance or appellate trial has been undergone before the effective date of this Joint Circular, but of which the legally effective judgments or decisions are canceled from the effective date of this Joint Circular onwards by the court competent to conduct cassation or reopening procedure for re-trial according to first-instance procedure, the procuracy’s participation in the court hearing shall comply with this Joint Circular.

Article 38. Amendment and supplementation of the Joint Circular

Any problem arising in the course of implementation that need to be guided, amended or supplemented should be promptly reported to the Supreme People’s Procuracy and the Supreme People’s Court for consideration and decision./.