Complete recommendations about right to initiate civil cases

12 Tạp chí Khoa học Viện Đại học Mở Hà Nội 52 (02/2019) 12-19 COMPLETE RECOMMENDATIONS ABOUT RIGHT TO INITIATE CIVIL CASES Dinh Thi Hang, Dinh Ngoc Minh Trang*‡ Date received the article: 6/8/2018 Date received the review results: 6/2/2019 Date published the article: 26/2/2019 Abstract: Resolving civilian cases in the Court still faces many difficulties and shortcomings, as there are many different opinions regarding fully implementing these regulations which have not yet been explained by competent agencies in a full and unified way. In addition, there are many new regulations that need to be accurately understood and specifically instructed to implement in practice. From that fact, the paper presents a way to approach the concepts of regulating civil lawsuit rights and at the same time indicates shortcomings and limitations of existing laws. Keywords:Civil procedure law, civil case, right to institute civil cases, recommendations, practices. 1. Introduction 1.1 . The definition of civil matter and initiate civil lawsuit 1.1. 1 The definition of civil matter According to the Popular Vietnamese dictionary "The case is a matter, the matter is not good, the troubles need to be solved"; "Civil affairs belong to the civilians, distinguished from the affairs of the official"1.§According to the Great Vietnamese dictionary, "The case is a matter * Faculty of Law, Hanoi Open University 1 Popular Vietnamese dictionary (1996), Education Publishing House, Hanoi. 2 Vietnamese Language and Culture Center - Ministry of Education & Training (1999), Great Vietnamese Dictionary, Information and culture Publishing House, Hanoi. that must be exposed to trial in Court" and "Civil is a matter related to the people in general"2.**Thus, in terms of language interpretation, it is possible to understand that civil matters are disputes about rights and obligations related to people and must be exposed to trial in Court. In essence, economic or labor relations also come from the willingness of the parties to engage in voluntary relations, like ordinary civil relations, but when cases are resolved, they are separated into Nghiên cứu trao đổi ● Research-Exchange of opinion 13 procedures differently; this seems to cause a complication in legal regulations. Meanwhile, the intellectual ability of the people in the whole country is limited, causing difficulties to access and apply legal regulations. Therefore, in the Code of Civil Procedure of Vietnam (CCP) in 2004, legislators had a clear conclusion. The concept of "Civil cases including civil cases and civil matters" (Article 1 of the CCP 2014) has been specified in detail. Corresponding to that, lawmakers have delineated the disputant civil lawsuit resolution procedures (civil matters) and non-dispute cases (civil cases). The concept of "civil case" is defined at more general level, not only from traditional relations, but it also includes a wider range of marriage – family relations and business, trade and labor (civil relations in a broad sense). From this point, it can be seen that, the term "civil case" only shows it’s spirit. According to Article 1 of the CCP 2015, "Civil matter is a dispute between individuals, agencies and organizations regarding rights and obligations arising from civil, marriage and family, business and commercial labor relations" therefore is resolved by the Court in accordance with the civil-procedure legal. 1.1.2 The definition initiate civil lawsuit According to the interpretation of Vietnamese, "initiation" is the beginning, 3 Nguyen Cong Binh (2017), Textbook of Vietnam Civil Procedure Code, People''s Police Publishing House, Hanoi. opening and "sue" which is the verb that acts only by the law enforcement agency who hears the damage to them through sending a lawsuit to the Court. Dr. Hoang Ngoc Thinh said "Institute civil lawsuit is a matter of filing an application by individuals, agencies, organizations or other entities in accordance with the provisions of the Civil Procedure Code, requesting the Court having the right to legitimate rights and interests of their own or of others”3.†† Accordingly, initiating lawsuits is the first act of individuals, legal persons and other entities involved in the Relationship of Civil Procedure Code, which is the basis for generating the Relationship of Civil Procedure Code. Institute civil lawsuit is a civil procedure activity that initiates the process of civil procedure at the Court, which is very important for resolving civil matters. To ensure this activity is effective, the law must specify the order, procedures and modes of operation. Currently, Vietnamese law does not stipulate the definition of initiating civil lawsuit. However, through the above analysis, it can be generalized that " Institute civil lawsuit is an application by individuals, agencies, organizations or other entities according to civil procedural laws and regulations to request the Court having jurisdiction protects legitimate rights or 14 Nghiên cứu trao đổi ● Research-Exchange of opinion interests of their own or of others protecting the public interests and State’s interests ”4.‡‡ 1.2 The important of the right to institute civil lawsuits The civil procedure code is a legal means for entities to their legitimate rights and interests. Accordingly, the law on the initiation of civil cases is the legal basis for the Court to conduct activities of accepting and settling civil cases to protect legitimate rights and interests of agencies, organizations and individuals. Therefore, the law on the institute civil lawsuits plays an important role in the effectiveness of institute civil lawsuits: Firstly, the Civil Procedure Code on instituting civil lawsuits, openly and transparently is the basis for entities to have full legal means to protect their legitimate rights and interests before the Court, against act of infringing upon the legitimate rights and interests of his/her own and ensuring the right to institute civil lawsuits. Secondly, the Civil Procedure Code on instituting civil lawsuits to meet the consistency, uniformity as well as specific, clear, scientific and non-contradictory rules, the Court will be easy to consider and accept civil cases as well as entities with legitimate rights and interests are compromised in access to justice. Thirdly, the Civil Procedure Code on instituting civil lawsuits that meet the 4 Hanoi Law University (2015), Textbook of Vietnam Civil Procedure Code, People''s Police Publishing House, Hanoi. feasibility and suitability criteria will make these provisions not only meaningful in writing but also effective in practice in order to ensure the right to institute civil lawsuits of subjects shall be complied. 1.3 Practical implementation of the provisions of the Civil Procedure Code on the initiation of civil cases 1.3.1 Achievements in the implementation of the provisions of the Civil Procedure Code on the initiation of civil cases Over the past years, the Court has always tried to accept civil cases quickly, comprehensively and promptly to ensure the initiate and to access justice of the persons. The activities and achievements of Court are shown in the following statistics: From 1st October 2016 to 30th September 2017, the Courts have resolved 438,625 cases out of a total of 491,384 accepted cases (reaching 89.3%) in all fields, while, the number of civil cases accounted for the highest proportion in the three fields: civil, criminal and administrative. Specifically, the Court has accepted 387,051 civil cases, adjudicated 338,756 civil cases and reached a rate of 87.5% , increasing to 2.5% of the set target (compared to the same period last year, the number of accepted civil lawsuit rose of 27,303 cases, settlement of civil lawsuits increase of 32,033 cases)5.§§ 5 Supreme People''s Court (2018), Summary Report in 2017 and key tasks of People''s Courts in 2018. Nghiên cứu trao đổi ● Research-Exchange of opinion 15 Among these civil cases, marriage and family, business, trade and labor that the Courts have accepted to resolve according to the first-instance procedure, the number of civil cases is 119,927 cases (an increase of 6,835 cases compared to the same period last year), accounting to a high percentage of disputes over property loan contracts, disputes over land use rights, disputes over land use right transfer contracts, disputes over land lent, and depend on using, encroachment. Marriage and family cases were 231,662 cases (up 24,850 cases compared to the same period last year), divorce due to family conflicts accounted for 73% of the total number of divorce cases that the Court had resolved; business cases were 15,446 cases (reduced to/from 576 cases), mainly made up of disputes in the areas of financial investment, banking and goods trading Labor cases were 4,810 cases (reduced by/to 2,618 cases compared to the same period last year), this was mainly disputes about disciplining, dismissal and unilateral termination of labor contracts6.*** In the settlement and adjudication of civil cases, the courts have effectively paid attention and remedied the civil cases beyond the time limit for settlement according to the provisions of law. In 2015, there were only 116 cases overdue due to subjective errors, accounting for 0.03%, decreasing by 0.01% compared to the same period in 2014. In 2016, there were only 67 6 Supreme People''s Court (2018), Summary Report in 2017 and key tasks of People''s Courts in 2018. cases of overdue due to subjective errors, accounting for 0,02%, decreasing by 0.01% compared to the same period in 20157.†††By 2017, the settlement and adjudication of civil cases of the Court were still maintained in order to timely protect legitimate rights and interests of agencies, organizations and individuals. Through the annual and most recent statistics of 2017, it can be seen that the Court sector is striving to improve the quality of trial activities, the time for accepting cases is shortened to timely protect right sand the legitimate interests of entities. 1.3.2 Restrictions and shortcomings in the implementation of the provisions of the Civil Procedure Code on instituting civil lawsuits In the implementation of the civil procedure, law regulations regarding to institute civil lawsuits, the following shortcomings and shortcomings exist: Firstly, difficulties and obstacles in implementing regulations on jurisdiction of competent Court Disputes and conflicts arising in social life when cited to the Court must be accepted by the Court unless other cases where there are other law regulations. However, the current cases do not have the applicable law at the time of resolving a civil case, there are no specific legal regulations to directly adjust the civil case 7 Supreme People''s Court (2018), Summary Report in 2017 and key tasks of People''s Courts in 2018. 16 Nghiên cứu trao đổi ● Research-Exchange of opinion but there is need to have custom, law provision in the same matters, basic principles of civil law, precedents and the justice be able to resolve civil cases (Article 45, CPC 2015) On the other hand, the fact that the Court fails to accept jurisdiction still exists, affecting the right to initiate of the subjects. For example, on 22nd March of 2017, the Investigation Agency of the Supreme People’s Procuracy issued a notice to Kien Giang Province People’s Court on preliminary investigation results related to letters accuse Judge and Secretary of Phu Quoc District (Kien Giang) made a mistake when resolving first instance case "Dispute of a civil contract for capital contribution" between both Nui Ngoc JSC and Mr. Le Minh Hue and Ms. Le Thi Thanh Tu. In the process of supervising, it was found that Phu Quoc district People’s Court accepted and adjudicated of first instance of civil lawsuits, but there was a false sign of authority because in this civil case, the parties were living and working in Canada, so under the provisions of the Civil Procedure Code of Vietnam the case must fall under the jurisdiction of People’s Courts of province8.‡‡‡ Secondly, difficulties and limitations from the initiate civil lawsuits of the subjects are illiterate, legally incapacitated persons, people with limited 8 Ha Thuong (2018), "Judge and Secretary of the counterfeit signature of the litigant", Youth Electronic Newspaper, July 17, 2018. cognition or behavior control and disable persons According to Point c, Clause 1, Article 189, Civil Procedure Code “Individuals of cases specified in points a and b of this clause who are illiterate or have visual disabilities or who cannot draw up petitions or append signatures or fingerprints themselves may request other persons to help them draw up the petitions under the witnessing of persons with fully civil procedure capacity”. However, the actual application of the above regulation also has some shortcomings, such as illiterate persons who do not know how to read and write but who in fact can still sign and write their name If the Court does not check, verification will lead to mistakes andviolations against procedures. Failure to verify whether the petitioner is literate is an omission, which may result in a cancellation of the case due to a serious violation against procedures. Thirdly, difficulties and limitations from individuals, agencies and organizations shall assist the involved parties to exercise the right to institute through the provision of documents and evidence In fact, when resolving cases where documents and evidence are being kept and managed by agencies and organizations, collecting them is not simple. In many cases, even though the parties have Nghiên cứu trao đổi ● Research-Exchange of opinion 17 travelled many times to request agencies and organizations to provide evidence related to the settlement of the case to supply evidence to the Court, they were denied with all types of reasons. Denial is usually just by words, attitudes, gestures. With the refusal, it is difficult for the parties to prove that they have applied all measures but still have not collected evidence to serve as a basis for asking the Court for collecting9.§§§This may lead to the court not guaranteeing to fully resolve the petitions for lawsuits of inhabitants, leading to rights to institute civil lawsuits to be affected. 2. Recommendations to improve about initiating civil lawsuits Firstly, it is necessary to issue resolutions and sub-law documents guiding the regulations on instituting civil lawsuits According to Civil Procedure Code 2015, the State needs to promulgate more specific legislative documents on regulations that are still general and ambiguous, especially with regard to the issues that still exist. Obstacles in regulations of the implementation of the right to institute civil lawsuits and the responsibility of accepting civils lawsuits of the Court in practice are affected and limited such as the statute of limitations for lawsuits; on changing, amendment and/or supplementation of lawsuit petitions before accepting the case and before first-instance trials; on determining the legal status of 9 Pham Thai Quy (2010), "An arduous collecting evidence in the proceedings", Online Newspaper of People's Deputies, 3rd May, 2010 households and cooperative groups when participating in civil procedure relations; assigning the Judge to resolve the case or issue of filing a first instant lawsuits through the online system. Secondly, it is necessary to specify the determination of the subject those have right to institute civil lawsuits and the legitimate rights and interests of that person have been infringed upon may designate any other persons to initiate instead If you understand that only the subjects who involved in civil law relations have Right to institute civil lawsuits to limit the right of individuals, agencies and organizations. Therefore, the Resolution on the implementation of the Civil Procedure Code in 2015 should provide a criterion for determining whether the legitimate rights and interests of subjects with being infringed upon. In addition, in order to create favorable conditions for people request Courts to protect legitimate rights and interests of theirs have been infringed upon, avoid improper application of the provisions of Article 186 and Article 189 in the Civil Procedure Code of 2015 in the direction of forcing people with infringing rights and interests to sign or point to the lawsuit petition above and to ensure uniform application of the law requires specific guidance of the Judges Supreme People’s Court. 18 Nghiên cứu trao đổi ● Research-Exchange of opinion For divorce cases that do not apply to a representative regime that requires a husband or wife to stand for a lawsuit petition and participate in the proceedings, it is impossible to request other persons to. The reality shows that divorce cases related to husband and wife who are limited capacity of exercise are becoming more and more popular, but the current law does not have regulations to adjust this situation. So can a father and mother be the representative to protect the legitimate rights and interests of their children - people who are legally incapacitated persons in the divorce case? Currently, the Court still does not accept the settlement of cases where the legal representative is the father or mother of those. Therefore, in order to protect the maximum legal rights and interests of citizens, it is necessary to issue documents to guide them to allow parents to be guardians in the second line (wife and husband are supervisors households in the first row) have the right to represent children who have lost their living skills in lawsuits and participate in proceedings in the divorce cases. In order to ensure the uniform application of laws in the People’s Court, there should be consistency in the awareness of law provisions. Therefore, it is necessary to give specific instructions to authorize the implementation of individual initiate lawsuits. 10 Tran Anh Tuan (2018), The summary record of a conference "General provisions of Civil Procedure Code 2015", Hanoi, June 2018 Thirdly, it is necessary to amend the legal provisions on determining territorial jurisdiction of the Court. The research and analysis of the thesis shows that the structure of provisions in Article 39 and Article 40 of the CPC 2015 on territorial competence is not reasonable. In terms of the nature and logic of the matter, the provisions of Article 39 and Article 40 of the CPC 2015 determine the territorial jurisdiction of the Court but the title of Article 39 are "Territorial jurisdiction of courts", while the title of Article 40 is" Jurisdiction of Courts selected by plaintiffs or petitioners ". So is the provision of Article 40 of the Civil Procedure Code 2015 not regulated by territorial authority?10.**** In addition, to determine territorial jurisdiction of the Court correctly, the order of application will be (1) point c, Clause 1, Article 39; (2) Point b, Clause 1, Article 39; (3) Article 40 and finally (4) point a, Clause 1, Article 39; This will make it difficult for parties to initiate the lawsuits in the Court when determining the territorial jurisdiction of the Court. Therefore, it is more reasonable if the provisions of Article 40 of the CPC 2015 are presented in Article 39 of this Code and arrange the terms in the order of reasonable priority of the following criteria: Nghiên cứu trao đổi ● Research-Exchange of opinion 19 (i) The Court's jurisdiction over the dispute is over immovable is specified on the following principles: - The Court where the real estate is located is competent in case the object of dispute is real estate, except for other cases prescribed by law (marriage case but there is a dispute on real estate property, ... ); - For disputes involving real estate, the involved parties do not have the right to choose the Court, except in the case of selecting a Court where there is one of the disputed real estate if there are many real estate disputes; (ii) Jurisdiction of Courts over non-real estate disputes is stipulated in the following order of priority: - Determine according to the legal agreement of the parties; - Determine according to the choice of the plaintiff, the requester among the Courts prescribed by law; - Determining according to the place of residence, living, working or having headquartered, if the defendant is an agency or organization. 3. Conclusion By analyzing the provisions of the law, the author found that the Civil Procedure Code has inherited the positive points of the old Codes of Civil Procedure as well as the previous Resolutions, although they have expired but are remain valid points. Besides, the provision of "The Court is not allowed to refuse to resolve a civil case for reasons of not having a law to apply" is a new step in legislative thought to create a solid legal premise for people exercising their right to initiate. On the basis of summarizing research results, the author has made some suggestions on the improvement and implementation of the law to improve efficiency to ensure the right to initiate and contribute to building a stable, fair and civilized societyn/./ References: 1. Civil Procedure Code 2015. 2. Hanoi Law University (2015), Textbook of Vietnam Civil Procedure Code, People''s Police Publishing House, Hanoi. 3. Ha Thuong (2018), "Judge and Secretary of the counterfeit signature of the litigant", Youth Electronic Newspaper, July 17, 2018. 4. Nguyen Cong Binh (2017), Textbook of Vietnam Civil Procedure Code, People''s Police Publishing House, Hanoi. 5. Pham Thai Quy (2010), "An arduous collecting evidence in the proceedings", Online Newspaper of People's Deputies, 3rd May, 2010 6. Supreme People''s Court (2018), Summary Report in 2017and key tasks of People''s Courts in 2018. 7. Tran Anh Tuan (2018), The summary record of a conference "General provisions of Civil Procedure Code 2015", Hanoi, June 2018. 8. Vietnamese Language and Culture Center - Ministry of Education & Training (1999), Great Vietnamese Dictionary, Information and culture Publishing House, Hanoi. 9. Popular Vietnamese dictionary (1996), Education Publishing House, Hanoi. Author Address: Faculty of Law, Hanoi Open University Email: dinhhang0409@gmail.com