Hướng dẫn 28/HD-VKSTC 2018 lập hồ sơ kiểm sát giải quyết vụ án hành chính; xem xét các biện pháp xử lý hành chính

GUIDANCE

On preparation of dossiers related to the supervision over the handling of administrative cases; business and commercial cases; labor; bankruptcy; consideration and decision to apply administrative penalties by the People's Courts

Pursuant to Directive No. 01/CT-VKSTC dated December 20, 2017 of the Procurator General of the Supreme People's Procuracy on tasks of the People's Procuracy system in 2018;

Pursuant to Decision No. 190/QD-VKSTC-VP dated April 6, 2016 of the Procurator General of the Supreme People's Procuracy on the promulgation of regulations on professional documentation of the People's Procuracy system;

Under Plan No. 03/KH-VKSTC dated December 26, 2017 on key tasks of the Supreme People's Procuracy in 2018, according to which the Procurator General of the Supreme People's Procuracy assigned the Department of supervision over the handling of administrative, economic and labor cases and other disputes in accordance with the law (V10) to: “guide the preparation of dossiers related to the supervision over the handling of  administrative cases, business and commercial cases, labor, bankruptcy, consideration and decision to apply administrative penalties by the People's Courts".

In order for the preparation of dossiers of supervision to be consistent throughout the entire procuracy system, the Supreme People's Procuracy (V10) guides the High-level People's Procuracy and local People's Procuracy to prepare 05 types of dossiers of supervision over the handling of administrative cases; business-related and commercial cases; labor; bankruptcy; consideration and decision to apply administrative penalties by the People's Courts (hereinafter abbreviated as dossiers of supervisions), including: contents, management, use and preservation of dossiers of supervisions.

PART ONE

OBJECTIVES AND TASKS

1. Purposes:

Dossiers of supervision over the handling of administrative cases; business-related and commercial cases; labor; bankruptcy; consideration and decision to apply administrative penalties by the People's Courts to help Procurators and Examiners perform well the function of supervising the compliance with the laws. To enhance the sense of responsibility and working quality of Procurators and Examiners in the process of performing the function of supervision.

To be used by the Procurators participating in court hearings and sessions; for the management, leadership, inspection and supervision of superior Procuracies over their subordinates; review by leaders of the task performance of Procurators and Examiners when performing tasks assigned to them.

To ensure the management and storage of documents included in the dossiers; to facilitate the research and utilization of documents in the dossiers after the verdicts or rulings take legal effect.

2. Requirements:

Dossiers of supervisions must be complete, accurate, truthful and objective; indicate professional supervision of Procurators and Examiners; encompass instructions of leaders on the supervision over stages from when the cases were just accepted until the end of the investigation and resolution thereof.

Dossiers of supervision at any stage of proceedings shall be prepared and managed by the Procuracies at the respective level. At the end of each stage of the proceedings, the Procurator, Examiner, and the person who handles the case must confirm the documents already included the dossier of supervision, number and index them, and arrange the documents in chronological order, imprint on the bottom right corner of each page the Procuracy’s stamp indicating the page number from 1 to the last of the dossier in the same way as page numbering of a textbook.

Each dossier of supervision must be bound in a binder which can be printed using the model of the Supreme People's Procuracy and used uniformly throughout the procuracy system (pay attention to fully filling in statistical form printed on the binder). Once completed, the Procurator and Examiner must sign off the documents included in the dossier of supervision.

PART TWO

CONTENTS OF A DOSSIER OF SUPERVISION OVER THE HANDLING OF A CASE

I. DOSSIER OF SUPERVISION OVER RETURN OF A LAWSUIT PETITION

(Commonly used for dossiers of supervision over the handling of administrative cases; business-related and commercial cases; labor).

Such a dossier shall consist of:

- A notice of return of the lawsuit petition/claim;

- The lawsuit petition/claim and documents of the petitioner/plaintiff/claimant (can be provided by the litigant or photocopied by the Court);

- A written complaint about the Notice of return of the lawsuit petition/claim (if any); 

- The Procuracy’s written recommendation to the Court which has returned the lawsuit petition/claim concerning review of the return of the lawsuit petition (if any);

- A decision to assign Procurators to attend the session;

- Written record of the opinions given by the Procuracy at the session to resolve the complaint/recommendation concerning review of the return of the lawsuit petition/claim (if any);

- Written record of the opinions given by the litigant at the session to resolve the complaint about the return lawsuit petition/claim (if any);

- A decision to resolve the complaint about the return of the lawsuit petition/claim (if any);

II. A DOSSIER OF SUPERVISION OVER THE HANDLING OF A CASE

(Generally applicable to dossiers of supervision over the handling of administrative cases; business-related and commercial cases; labor).

1. Dossier of supervision prepared at the first-instance stage

A dossier prepared at the first-instance stage shall be arranged into the following volumes: (arranged in the procedural and chronological order)

Volume 1:  Legal proceedings

- A notice of case acceptance; a notice of acceptance of the counterclaim of the defendant/respondent (if any); a notice of case acceptance of the person with related rights and obligations who files an independent claim (if any); a receipt of payment of court fee advance, or a written proof of exemption of court fee advance;

- A decision to assign a Judge to handle the case;

- A certificate of appointed counsel; (if any)

- A decision on case referral; (if any)

- A decision to merge or separate the case. (if any)

- A decision to apply, change or cancel interim urgent measures; (if any)

- A decision on temporary suspension; (if any)

- A decision to bring the case to trial;

- A decision to postpone the trial; (if any)

- A notice of (procuratorial) appeal.

Volume 2: Documents of Petitioner/Plaintiff

- The lawsuit petition and attached documents (Administrative decision, documents related to the administrative act being sued);

- Documents and evidence provided by the petitioner/plaintiff;

- A notice of receipt of the lawsuit petition.

- An acknowledgment of delivery and receipt of the notice of case acceptance;

- Self-declarations; written testimonies.

Volume 3: Documents of the defendant/respondent

- A counterclaim of the defendant/respondent, a receipt of payment of court fee advance; (if any)

- Documents and evidence provided by the defendant/respondent.

- An acknowledgment of delivery and receipt of the notice of case acceptance;

- Written response to the plaintiff's claim;

- Self-declarations; written testimonies.

Volume 4: Documents of people with related rights and obligations

- An independent claim of any person with related rights and obligations, a receipt of payment of court fee advance; (if any)

- Documents and evidence provided by people with rights and obligations.

- An acknowledgment of delivery and receipt of the notice of case acceptance;

- Written response to the plaintiff's claim;

- Self-declarations; written testimonies.

Volume 5: Documents and evidence collected by the Court 

- The litigant's written request for the Court to collect evidence; (if any)

- The litigant's statement;

- A written record of witness statements and self-declarations of witnesses;

- A written record of confrontation between litigants, between litigants and witnesses;

- An acknowledgment of on-site review and appraisal; (if any)

- A decision to request appraisal and written conclusions of appraisal; (if any)

- A decision on asset valuation and asset valuation results; (if any)

- A decide to entrust the collection and verification of documents and evidence; (if any)

- A written request for authorities, organizations or individuals to provide documents; (if any)

- Other documents and evidence collected by the Court.

- Meeting minutes of the session to check the handover, access and disclosure of evidence; a memorandum of dialogue; (if any)

Volume 6: Documents on supervision

- A decision to assign Procurators;

- A supervision form prepared by the Procurator or Examiner;

- Documents on case file retrieval;

- Report on the results of reviewing the case file (prepared by the Procurator or Examiner who reviews them in person to make a report and propose approaches on handling the case to the leader; opinions of the leader);

- A written request for the Court to collect documents and evidence;

- Documents and evidence provided by authorities, organizations and individuals at the request of the Procuracy;

- Other documents received by the Procuracy (if any) such as: Complaints from litigants, documents from other sectors, authorities at various levels, mass organizations and relevant people indicating their feedback and recommendations on the handling of the case resolution, etc.

- Questions to be raised by the Prosecutor at the trial;

- The Procurator's address at the trial (including the draft and the signed and stamped official version sent to the Court after the trial);

- A report on the results of the first-instance trial;

- Documentary proof submitted by authorities and organizations at the request of the Procuracy as the grounds for procuratorial appeal (if any);

- Appellate procuratorial appeal or recommendation; a notice to the superior Procuracy of the appellate procuratorial appeal;

- An acknowledgment of handover of the case file; statistics of documents included in the case file;

Volume 7: Documents on the Court's resolution

- A decision to bring the case to trial;

- A decision to postpone the trial and other decisions (if any);

- A decision to suspend, or temporarily suspend the handling of the case (if any);

- A decision to apply, change or cancel interim urgent measures (if any);

- Minutes of court hearing;

- The first-instance judgment, or the decision on recognition of the agreement of the litigants.

2. Dossier of supervision prepared at the appeal stage

The documents to be included:

- Documentary proof provided by the litigants (if any); 

- Documentary proof collected by the Procuracy (if any); 

- An acknowledgment of delivery and receipt of evidence and documents provided by the litigants;

- A decision on procuratorial appeal, a decision to change or supplement the procuratorial appeal, a decision to withdraw the procuratorial appeal (if any); 

- A petition for rehearing and an acknowledgment of delivery and receipt of such petition;

- A notice of additional petition for rehearing;

- Any additional petition for rehearing;

- A decision to accept or not accept the overdue petition for rehearing (if any);

- Minutes of deliberation;

- A notice of advance payment of appellate court fees;

- A receipt of advance payment for appellate court fees;

- A notice of appeal;

- A notice of acceptance of appeal;

- A decision to apply, change or cancel interim urgent measures (if any);

- A decision to temporarily suspend the appeal trial (if any);

- A decision to suspend the appeal trial (if any);

- A written record of appellate valuation; written records of confrontation, conciliation, mediation, etc. (if any); 

- A decision to bring the case to appeal trial;

- A decision to postpone the trial and other decisions (if any);

- An acknowledgment of delivery and receipt of all types of procedural documents;

- Addresses of the Defenders of the litigants’ legitimate rights and interests (if any); 

- Appellate judgments and rulings of the Court;

- Excerpts from the case file;

- Copies of documents and evidence;

- Supervision forms;

- Documents regarding the exercise of the right to claim;

- Documents regarding the exercise of the right to make recommendations (if any); 

- A decision to assign Procurators;

- A report on proposed handling approaches and solutions of the Procurator after review and opinions of the leaders;

- An outline of the Procurator's questions at the trial or session and a written request for the Trial Council to disclose documentary proof at the trial or session.

- The Procurator’s address;

- Report on the appeal trial.

Note: The above documents are added and arranged into each respective volume at the first-instance stage upon request.

3. Dossier of supervision prepared at the cassation and retrial stage

- The litigant's written application for cassation and attached documents; Notices from the Court, Procuracy, other authorities, organizations and individuals detecting violations of the law in legally effective judgments or decisions of the Courts.

- A written request for the Court to hand over the case file for review;

- A notice of the results of processing the application to the litigant, authorities and organizations (if any);

- A written application for postponement of judgment execution and attached documents related to judgment execution (if any);

- Documents and evidence provided by litigants, individuals, authorities and other organizations;

- A decision to postpone the execution of the judgment, a decision to resolve the administrative case (if any);

- A official letter requesting postponement of judgment execution (if any);

- A official letter requesting documents and evidence (if any);

- Documents and evidence provided by authorities, organizations and individuals at the request of the Procuracy (if any);

- A report on the results of review of the report and proposed solutions to the case and the leaders’ instructions on the review of the case;

- A written notice stating that there are no grounds for cassation or retrial procuratorial appeal (if no procuratorial appeal is required);

- A decision on procuratorial appeal of the Chief Procurator of the Supreme People's Procuracy, the Chief Procurator of the High-level People's Procuracy or the Chief Justice of the Supreme People's Court or the Chief Justice of the High-level People's Court;

- The Procurator's address on the procuratorial appeal of the Chief Procurator of the Supreme People's Procuracy, the Chief Procurator of the High-level People's Procuracy or the Chief Justice of the Supreme People's Court or the Chief Justice of the High-level People's Court;

- The Procurator's handwritten record of the trial;

- A report on cassation trial;

- A decision on cassation.

Note: The above documents are added and arranged into each respective volume at the cassation or retrial stage upon request.

III. A DOSSIER OF SUPERVISION OVER THE HANDLING OF BANKRUPTCY

3.1. Dossier of supervision over the return of the written application for opening bankruptcy proceedings

Such a dossier consist of:

Volume 1. Documents provided by the applicant:

- A written application for opening bankruptcy proceedings;

- Documents proving due debts and salary debts of the enterprise or cooperative (can be provided by the litigant or photocopied by the Court).

Volume 2. Documents on the Court's resolution

- A decision to assign a Judge or a Judicial Panel;

- A notice of payment of bankruptcy fees, advance payment of bankruptcy fees (if any);

- A decision to return the written application for opening bankruptcy proceedings.

Volume 3. Documents on request for review or recommendation concerning the return of the written application for opening bankruptcy proceedings (if any):

- A written request for review of the decision to return the written application for opening bankruptcy proceedings;

- The Procuracy's written request for review of the return the written application for opening bankruptcy proceedings;

- The Court’s decision to resolve the written request for review or recommendation concerning the decision to return the written application for opening bankruptcy;

- A written request for review of the decision to resolve the written request for review or recommendation concerning the decision to return the written application for opening bankruptcy;

- The Procuracy's written request for review of the decision to resolve the written request for review or recommendation concerning the decision to return the written application for opening bankruptcy proceedings;

- A decision to resolve the request for review or recommendation concerning the decision to resolve the written request for review or reconsideration concerning the decision to return the written application for opening bankruptcy proceedings.

Volume 4. Documents on supervision

- A decision to assign Procurators to attend the session;

- A form of supervision over the decision to return the written application for opening bankruptcy;

- A form of supervision over the decision to resolve the written request for review or recommendation concerning the decision to return the written application for opening bankruptcy proceedings.

3.2. Dossier of supervision over opening or not opening bankruptcy proceedings

The dossier is created from the date of receipt of the notice of acceptance of the written application for opening bankruptcy proceedings sent by the Court.

Volume 1. Documents provided by persons involved in the bankruptcy:

- A written application for opening bankruptcy proceedings;

- An acknowledgment of delivery and receipt of documents and evidence; Documents and evidence proving due debts and salary debts of the enterprise or cooperative;

- A receipt of payment of bankruptcy fees, receipt of advance payment of bankruptcy fees;

Volume 2. Documents on the Court's resolution

- A notice of acceptance of the written application for opening bankruptcy proceedings;

- A decision to assign a Judge or a Judicial Panel;

- A decision to open bankruptcy proceedings or a decision not to open bankruptcy proceedings.

- Documents and evidence collected and verified by the Court;

- A decision to assign, or to change the Asset Administrator, or the enterprise in charge of asset administration and disposition;

- A decision to audit the insolvent enterprise or cooperative (if any);

Volume 3. Documents on request for review or procuratorial appeal of the decision to open or not open bankruptcy proceedings (if any)

- A written request for review of the decision to open or not open bankruptcy procedures;

- The Procuracy’s procuratorial appeal against the decision to open or not open bankruptcy proceedings;

- A decision to resolve the request for review or procuratorial appeal against the decision to open or not open bankruptcy proceedings.

Volume 4. Documents on inspection:

- A decision to assign Procurators;

- An acknowledgment of handover of documents;

- Forms of supervision over notices and decisions of the Court;

- A written request for documents (if any);

- The Procurator’s address at the session to review and resolve the request for review or the procuratorial appeal against the decision to open or not open bankruptcy proceedings;

- A report on the session’s results.

3.3. Dossier of supervision over declaration of an enterprise or cooperative bankrupt

The dossier consists of documents during the supervisions of opening bankruptcy proceedings and additional documents, as follows:

Volume 1. Documents provided by persons involved in the bankruptcy:

- Notices of debt collection;

- List of creditors and debtors;

- The resolution of the creditors’ meeting;

- The plan to resume business of the enterprise or cooperative.

Volume 2. Documents on the Court's resolution:

- A decision to apply interim urgent measures;

- A decision to apply asset preservation measures: Decision to declare transactions invalid, Decision to temporarily suspend or suspend the implementation of in-force contracts, etc.

- A decision to recognize the resolution of the creditors’ meeting approving the plan to resume business of the enterprise or cooperative;

- A decision to suspend business recovery procedures;

- A decision to suspend bankruptcy proceedings;

- A decision to declare the enterprise or cooperative bankrupt.

- A decision on the sale of assets of the enterprise or cooperative declared bankrupt;

- A decision to apply measures prohibiting leaving the place of residence, requesting competent authorities to escort representatives of enterprise or cooperative declared bankrupt (if any);

- A decision to impose administrative sanctions to and request criminal adjudication of representatives of the enterprise or cooperative declared bankrupt (if any);

- Other decisions to terminate operations of the enterprise or cooperative declared bankrupt;

Volume 3. Documents on request for review and procuratorial appeals against the Decision to declare an enterprise or cooperative bankrupt (if any)

- A written request for review of the Decision to declare the enterprise or cooperative bankrupt and attached documents (if any);

- A decision on procuratorial appeal against the decision to declare the enterprise or cooperative bankrupt;

- A decision to resolve the written request or procuratorial appeal against the decision to declare the enterprise or cooperative bankrupt.

Volume 4. Documents on inspection:

- A decision to assign Procurators to attend the session;

- Forms of supervision over decisions of the Court;

- Documents and evidence collected by the Procuracy for procuratorial recommendation or appeal;

- Documents extracted by the Procurator, Examiner, or Specialist;

- Results of the review of dossiers and reports (if any);

- The Procurator’s address at the session;

- A report on supervision over the session.

IV. DOSSIERS OF SUPERVISION OVER THE CONSIDERATION AND DECISION TO APPLY ADMINISTRATIVE PENALTIES BY THE PEOPLE'S COURTS

(Dossiers of supervision are prepared after accessing to the dossiers of the Court)

Guidance for the preparation of dossiers are applicable to the consideration and application of the measures of sending to reformatories; compulsory correctional institutions; or compulsory detoxification facilities.

1. Dossier of supervision over the consideration and decision to apply administrative penalties by a People's Court

Such dossier consists of:

Volume 1-Documents provided to the Court by the requesting authority

- A written request from the requesting authority

- In case of a juvenile violator/violator/drug addict living permanently in a place of residence: His/her curriculum vitae; Documents about the violator's illegal acts/Documents proving the drug addiction; Correctional measures already taken/Correctional measures to be taken in a commune, ward or town/ Correctional measures to be taken in a commune, ward or town by a drug addict; A statement of the violator and/or his/her legal representative, (or opinions of the school, authority or organization where the juvenile is studying or working, if any) and other related documents.

- In case of a juvenile violator/violator/drug addict not living permanently in a place of residence: His/her curriculum vitae; Documents about the violator's illegal acts/Documents proving the drug addiction; Excerpt of his/her criminal record and correctional measures already taken; a statement of the violator and/or his/her legal representative, (or opinions of the school, authority or organization where the juvenile is studying or working, if any).

- For a juvenile commits a violation directly discovered, investigated, and handled by the district or provincial-level police office: His/her curriculum vitae; Documents about the violator's illegal acts; Excerpt of his/her criminal record and correctional measures already taken; a statement of the violator and/or his/her legal representative, (or opinions of the school, authority or organization where the juvenile is studying or working, if any).

- Documents provided by the violator (if any)

Volume 2-Documents issued by the Court

- A notice of acceptance

- A written assignment of the Judge (may or may not be expressed by a decision)

- A decision to suspend or temporarily suspend the case (if any)

- A decision to open the session

- Minutes of the session;

- A decision to apply or not apply administrative penalties, such as sending to reformatory/compulsory correctional institution/compulsory detoxification facility.

Volume 3-Documents on supervision

- A written assignment of Procurators to attend the session

- Documents copied and extracted by the Procurator or Examiner

- Results of the review of dossiers and reports (if any)

- An address on whether or not to accept the request for sending to a reformatory

- A decision on procuratorial appeal (if any)

- A decision to change and withdraw the procuratorial appeal (if any)

- A report on the session's results

2. Dossier of supervision over the re-consideration of the consideration and decision to apply administrative penalties by a People's Court

In this dossier, in addition to the documents included in the dossier of supervision over the consideration and decision to apply administrative penalties by a People's Court as mentioned above, the Procurator shall prepare documents on supervision over review of decisions that are complained about, recommended for review, or appealed against, including:

Volume 1- Documents related to complaints, procuratorial recommendations and appeals

- A written complaint, procuratorial recommendation or appeal against the decision to apply or not apply the measures of sending to a reformatory/compulsory correctional institution/compulsory detoxification facility.

Volume 2-Documents of the Court

- A notice of acceptance

- A written assignment of the Judge (may or may not be expressed by a decision)

- A decision to suspend the resolution of the complaint, procuratorial recommendation or appeal (if any)

- A decision to open a review session

- Minutes of the review session

- A decision to resolve the complaint, procuratorial recommendation or appeal against the decision to apply or not apply administrative penalties, such as sending to reformatory/compulsory correctional institution/compulsory detoxification facility.

Volume 3-Documents on supervision

- A decision to assign Procurators to attend the review session

- Documents copied and extracted by the Procurator or Examiner

- Results of the review of dossiers and reports (if any)

- The Procurator’s address

Volume 4-Additional documents provided by other relevant authorities (if any)

PART THREE

MANAGEMENT AND USE OF DOSSIERS

Dossiers shall be made, used, and stored independently when supervising the handling of cases at each procedural level for the purpose of supervision. After use, the dossiers must be returned in full to those that provided them so that they cannot be misplaced, lost, or damaged. The provision and return of documents must be managed by recording in books and the delivery and receipt thereof shall be acknowledged in writing.

At the end of the working year, they must be submitted for supervision and retention in accordance with the procuracy system’s regulations.

Dossiers shall be stored and managed strictly in confidence and must not be damaged, lost or misplaced. In case of violation, depending on the severity thereof, the user, manager, and custodian of the dossiers may be subject to disciplinary actions in accordance with the procuracy system’s regulations or the laws.

The retention period of supervision records and destruction thereof shall comply with the Law on Archives and the procuracy system’s regulations.

Above are the guidance on preparation of dossiers related to the supervision over the handling of administrative cases; business and commercial cases; labor; bankruptcy; consideration and decision to apply administrative penalties by the People's Courts. During the implementation hereof, if any difficulties or problems that arise shall be summarized by the High-level Procuracy and Procuracies of provinces and municipalities and sent to the Supreme People's Procuracy (V10) for consideration, supplementation, and timely guidance.