Thông tư liên tịch 01/2010/TTLT-TANDTC-BLĐTBXH-VKSNDTC của Toà án nhân dân tối cao, Bộ Lao động Thương binh và Xã hội, Viện kiểm sát nhân dân tối cao hướng dẫn áp dụng một số quy định của pháp luật trong quá trình giải quyết tranh chấp hợp đồng bảo lãnh cho người lao động đi làm việc ở nước ngoài theo hợp đồng tại tòa án nhân dân

JOINT CIRCULAR

GUIDING THE APPLICATION OF LEGAL PROVISIONS TO SETTLING AT PEOPLE'S COURTS DISPUTES OVER GUARANTEE CONTRACTS FOR GUEST WORKERS

Pursuant to the November 29, 2006 Law on Vietnamese Guest Workers;

Pursuant to the June 15, 2004 Civil Procedure Code;

Pursuant to the June 14, 2005 Civil Code;

In order to properly and uniformly apply legal provisions to settling at people's courts disputes over guarantee contracts for guest workers, the Supreme People's Court, the Ministry of Labor, War Invalids and Social Affairs and the Supreme People's Procuracy jointly provide the following guidance:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Joint Circular guides the application of legal provisions to settling disputes over guarantee contracts for guest workers (below referred to as guarantee contracts) between enterprises or non-business organizations sending guest workers and guarantors of these workers.

Article 2. Disputes over guarantee contracts

Disputes over guarantee contracts specified in the Law on Vietnamese Guest Workers and Joint Circular No. 08/2007/TTLT-BLDTBXH-BTP of July 11, 2007, of the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Justice, detailing the terms of a guarantee contract and liquidation of guarantee contracts for guest workers, are civil ones to be settled by people's courts under Clause 3, ArticjLi25 of the Civil Procedure Code.

Article 3. Application of laws

1. Disputes over guarantee contracts made before January 1, 2006 (the effective date of the 2005 Civil Code), shall be settled-finder the National Assembly's Resolution N 0.^45/2005/ QH11 of June 14, 2005, on the enforcement of the 2005 Civil Code.

2. Disputes over guarantee contracts made between January 1, 2006, and before July 1,2007 (the effective date of the Law on Vietnamese Guest Workers) shall be settled under the 2005 Civil Code and guiding legal documents: the Government's Decree No. 141/2005^fD-CP of November 11, 2005, on management of Vietnamese guest workers; Joint Circular No. 06/ 2006/TTLT-BLDTBXH-BTP of July X 2006, of the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Justice, guiding guarantee for guest workers; and relevant legal documents.       

3. Disputes over guarantee contracts made on or after July 1, 2007, shall be settled under the Law on Vietnamese Guest Workers; Joint Circular No. 08/2007/TTLT-BLDTBXH-BTP of July 1, 2007, of the Ministry of Labor, War Invalids and Social Affairs and the Ministry of Justice, detailing the terms of a guarantee contract and liquidation of guarantee contracts for guest workers; this Joint Circular; and relevant legal documents.

Article 4. Coordination in settling cases of disputes over guarantee contracts

The settlement of disputes over guarantee contracts requires coordination between people's courts, people’s procuracies, the Department for Management of Overseas Laborers, provincial-level Departments of Labor, War Invalids and Social Affairs (or the Ministry of Labor, War Invalids and Social Affairs) of the localities where the cases are processed, and concerned agencies and organizations in performing the following-tasks:

1. When people's courts request in writing the exchange of opinions on professional matters in sending" guest workers, the Department for Management of Overseas Laborers (the Ministry of Labor War Invalids and Social Affairs) and provincial-level Departments of Labor, War Invalids and Social Affairs shall give written replies or such matters.

2. Upon a written request of courts or procuracies competent to settle the cases, the Department for Management of Overseas Laborers (the Ministry of Labor, War Invalids and Social Affairs) shall provide documents related to the guarantee for Vietnamese guest workers it currently keeps under law.

3. In settling the cases, courts may apply the provision of Article 93 of the Civil Procedure Code regarding entrusted collection of proofs to request Divisions for Management of Overseas Vietnamese Laborers (for localities with such Divisions) or overseas Vietnamese diplomatic
representative missions (for localities without Divisions for Management of Overseas Vietnamese Laborers) and concerned agencies, organizations and individuals to coordinate with one another in conducting verification and collecting proofs. When the requested agencies, organizations and individuals fail to provide proofs to courts, they shall issue written notices clearly stating reasons for such failure.

4. The courts that have settled the cases shall send judgments or rulings to concerned agencies, organizations and individuals upon request under law.

Chapter II

PROCEDURES FOR SETTLING AT PEOPLE'S COURTS DISPUTES OVER GUARANTEE CONTRACTS

Article 5. The right to initiate at people's courts civil cases of disputes over guarantee contracts

Enterprises or non-business units sending guest workers and guarantors of these workers defined in Clauses 1 and 3, Article 2 of the Law on Vietnamese Guest Workers and persons with related interests and obligations may initiate civil cases of guarantee contracts at competent people's courts to protect their lawful rights and interests.

Article 6. Documents and proofs enclosed with petitions

Documents and proofs enclosed with petitions comply with Article 165 of the Civil Procedure Code and Resolution No. 02/2006/ NQ-HDTP of May 12, 2006, of the Judges' Council of the Supreme People's Court, guiding the Civil Procedure Code's provisions of Part Two "Procedures for settling cases at first-instance courts".

When, for an objective reason, petitioners cannot immediately provide sufficient documents and proofs, they shall provide initial documents and proofs for evidencing that their petitions are grounded and lawful.

Initial documents and proofs to be provided by petitioners to courts may be originals or lawfully notarized or certified copies of guarantee contracts and contract annexes (if any). In the course of settling the cases, petitioners shall supplement at their own will or at the request of courts other documents and proofs for evidencing that their petitions are grounded and lawful.

Article 7. Statute of limitations for initiating lawsuits

1. The statute of limitations for initiating lawsuits to request courts to settle disputes over guarantee contracts is two years from the date lawful rights and interests of enterprises or non-business units sending guest workers and guarantors of these workers or persons with related interests and obligations are infringed upon.

The determination of the statute of limitations for initiating lawsuits and the starting time of such statute of limitations complies with Section 2, Part IV of Resolution No. 01/2005/NQ-HDTP of March 31, 2005, of the Judges' Council of the Supreme People's Court, guiding a number of provisions of Part One "General provisions" of the Civil Procedure Code.

2. For disputes over guarantee contracts in which the parties cannot agree with one another on the time limit for performing the guarantee obligation, but under Article 56 of the Law on Vietnamese Guest Workers, enterprises or non-­business units sending guest workers may set an appropriate time limit for performing the guarantee obligation, upon the expiration of such time limit, if guarantors of these guest workers fail to perform or improperly perform their obligation, the date of expiration of the notified time limit is the date when lawful rights and obligations of enterprises or non-business units sending guest workers are infringed upon.

For example: Enterprise A signed with guarantor B a guarantee contract on sending guest workers. After the guarantee obligation arises the two parties could not reach agreement on the time limit for performing this obligation. On September 22. 2009, guarantor B received enterprise A's request for performing the guarantee obligation within 30 days. At the end of October «22, 2009, guarantor B still failed to perform the-guarantee obligation as requested by enterprise A. In this case, October 22, 2009, would be regained as the date when enterprise A's lawful rights and interests were infringed upon and the statute of limitations for initiating lawsuits would be 2 years starting from October 23.2009, through October 23,2011.

Article 8. Jurisdiction of people's courts to settle disputes over guarantee contracts

1. District-level people's courts have jurisdiction to process and settle disputes over guarantee contracts under Point a, Clause 1, Article 33 of the Civil Procedure Code.

2. In the following cases, provincial-level people's courts have jurisdiction to settle disputes over guarantee contracts under Clauses, Article 33 and Clause 2, Article 34, of the Civil Procedure Code, and Section 4, Part I of Resolution No. 01/ 2005/NQ-HDTP of March 31,2005, of the Judges' Council of the Supreme People's Court, guiding a number of provisions of Part One "General provisions" of the Civil Procedure Code:

a/ Disputes over guarantee contracts among guest workers, their guarantors and overseas persons with related interests and obligations as specified in Item 4.1. Section 4, Part I of Resolution No. 01/2005/NQ-HDTP of March 31, 2005, of the Judges' Council of the Supreme People's Court, guiding a number of provisions of Part One "General provisions" of the Civil Procedure Code.

b/ Disputes over guarantee contracts involving overseas assets or requiring judicial mandate to overseas Vietnamese consular offices or foreign courts specified in Items 4.2 and 4.3, Section 4, Part I of Resolution No. 01/2005/NQ-HDTP of March 31,2005, of the Judges' Council of the Supreme People's Court, guiding a number of provisions of Part One "General provisions" of the Civil Procedure Code.

c/ Disputes over guarantee contracts which district-level people's courts have jurisdiction to settle but which are picked up by provincial-level people's courts for settlement under Clause 2, Article 34 of the Civil Procedure Code.

3. If no change is made in people's courts' jurisdiction to settle disputes over guarantee contracts, such disputes shall be settled under Article 412 of the Civil Procedure Code and Item 4.4, Section 4, Part I of Resolution No. 01/2005/ NQ-HDTP of March 31, 2005, of the Judges' Council of the Supreme People's Court, guiding a number t)f provisions of Part One "General provisions" of the Civil Procedure Code.

Article 9. Collection of proofs

1. The collection of proofs in the course of settling cases complies with the Civil Procedure Code and Resolution No. 04/2005/NQ-HDTP of September 17, 2005, of the Judges' Council of the Supreme People's Court, guiding the Civil Procedure Code's provisions on evidencing and proofs.

2. Depending on the circumstances of cases of disputes over guarantee contracts, courts may request involved parties, individuals, agencies or organizations to provide the following papers and documents:

a/ Originals or lawfully notarized or certified copies of papers and documents related to guarantee contracts, including:

- Guarantee contract; contract annex (if any); document on contract liquidation (if any); document on guarantee cancellation (if any); and written agreement on guarantee termination (if any);

- Contract on sending guest workers; contract annex (if any); and document on contract liquidation (if any).

b/ Originals or lawfully notarized or certified copies of papers and documents related to security for the performance of the guarantee obligation, including:

- Asset mortgage or pledge or deposit contract;

- Document evidencing the financial capacity, ability and prestige of guarantors of guest workers.

c/ Originals or lawfully notarized or certified copies of papers and documents related to the performance of guarantee contracts, including:

- Notice of workplace, employment situation, income, health status, working and living conditions of workers, when so requested by the guarantor of guest workers;

- Notice of workers' breaching the contract or absconding from their workplace; and employer's document of termination of the labor contract;

- Document on the handling of workers' violations, issued by a competent foreign agency or organization or a competent overseas Vietnamese agency under the Law on Vietnamese Guest Workers (if any);

- Proofs of the damage caused by workers;

- Notice of the performance of obligations on behalf of workers, sent to guarantors of guest workers.

d/ Other papers and documents related to the settlement of cases.

Chapter III

EFFECT

Article 10. Effect

1. This Joint Circular takes effect 45 days from the date of its signing.

2. This Joint Circular does not apply to cases which were previously settled in accordance with law while court judgments or rulings have taken legal effect for filing protests according to cassation or re-opening procedures, unless other grounds are provided. Courts shall settle under this Joint Circular those cases which are being processed.

Article 11. Implementation responsibility

People's courts at all levels, provincial-level Departments of Labor, War Invalids and Social Affairs, and people's procuracies at all levels should report in writing problems arising in the course of implementing this Joint Circular to the Supreme People's Court, the Ministry of Labor, War Invalids and Social Affairs and the Supreme People's Procuracy for information or timely amendment or supplementation.-