Addressing Certain Difficulties in the Adjudication of Civil and Civil Procedure Cases by the Supreme People's Court through Official Correspondence No. 206/TANDTC-PC dated December 27, 2022
1. In a lawsuit concerning a dispute over the distribution of an estate, an heir had submitted a written refusal to accept the inheritance. The First-Instance Court included this person in the litigation as a Person with related rights and obligations. During the first-instance trial, the Court ruled to distribute the entire estate to the other co-heirs (including the portion of the estate belonging to the person who refused to accept the estate). After the first-instance judgment, the person who had refused the inheritance appealed the judgment, requesting to be distributed the inheritance in accordance with law, and seeking to receive the specific portion of the estate they were otherwise entitled to. In this case, will the Court accept their request for the distribution of the estate?
Article 5 (1) of the 2015 Civil Procedure Code stipulates: "Parties have the right to decide on initiating a lawsuit, requesting the competent Court to resolve the civil matter. The Court shall only accept and resolve a civil matter when there is a petition/application from a party, and shall only resolve within the scope of that petition/application."
Article 620 of the 2015 Civil Code stipulates:
"1. An heir has the right to refuse to accept the estate, except where the refusal is aimed at evading the performance of his/her property obligations towards another person.
The refusal to accept the estate must be made in writing and sent to the estate administrator, other heirs, or the person assigned to divide the estate for their knowledge.
The refusal to accept the estate must be expressed prior to the time of estate division."
Point (c), Clause 2, Article 650 of the 2015 Civil Code stipulates the cases of inheritance by law as follows: "The portion of the estate related to a person entitled to inheritance under a will but who does not have the right to inherit the estate, refuses to accept the estate, dies before or at the same time as the testator; related to an agency or organization entitled to the estate under a will but which no longer exists at the time the inheritance is opened."
Thus, in the above-mentioned case, the Court shall consider and decide based on the specific circumstances:
If the heir's refusal to accept the estate was voluntary, the Court shall not accept the party's request for inheritance distribution of the specific portion that they had previously refused to accept.
If there are grounds to prove that the heir's refusal to accept the estate was due to deceit, coercion, threat, etc., the Court shall consider accepting the party's request.
2. The Court receives a petition for divorce from a Vietnamese spouse who was married in Vietnam but is currently residing abroad; one party requests a divorce but asks for the judgment in absentia. How will the Court proceed? Can the Court conduct verification and collect documentary evidence in the absence of both the plaintiff and defendant residing abroad? What are the costs for judicial assistance (rogatory letters) abroad?
Pursuant to Article 238 of the 2015 Civil Procedure Code on the procedure for trial in the absence of all litigation participants:
"1. The Court shall rely on the documents and evidence in the case file to conduct a trial in the absence of a party or other litigation participants in accordance with law, when all the following conditions are met:
a) The plaintiff or their lawful representative has an application requesting trial in absentia;
b) The defendant, person with related rights and obligations, or their lawful representative, has an application requesting trial in absentia or has been lawfully summoned for the second time and is still absent;
c) The person protecting the lawful rights and interests of the plaintiff, defendant, or person with related rights and obligations, has an application requesting trial in absentia or has been lawfully summoned for the second time and is still absent."
The 2015 Civil Procedure Code permits the Court to proceed with the trial even when all litigation participants are absent, provided that the service of the procedural documents is valid and the plaintiff and defendant have submitted an application requesting trial in absentia, or the defendant has been lawfully summoned for the second time and is absent.
Therefore, the Court may consider and resolve the divorce case in the absence of the parties if it ensures valid service and receives a legal written response from the parties as prescribed by law (for instance: documents sent from abroad to a Vietnamese Court must be consularly legalized in accordance with regulations...).
Regarding the obligation to pay an advance for the costs of judicial assistance abroad and the final liability for such costs, these are governed by Articles 152 and 153 of the 2015 Civil Procedure Code and further guided by the Supreme People's Court's Official Correspondence No. 64/TANDTC-HTQT dated June 9, 2021, concerning judicial assistance and service of procedural documents abroad.
3. The plaintiff is a Vietnamese citizen married to a foreign defendant, with one child in common (the marriage and the child's birth registration were performed in Vietnam). After the birth, the whole family moved to Country A to live. Subsequently, the wife brought the child back to Vietnam, where they have resided since 2015. The wife is now initiating a lawsuit requesting a divorce and the resolution of the common child issue. The defendant provides information and documents proving a judgment from a Court in Country A granting the defendant custody of the common child; however, the defendant has not provided evidence confirming the resolution of the marital relationship. In this case, does the Vietnamese Court have jurisdiction to resolve the plaintiff's requests for divorce and common child matters?
Pursuant to Point (d), Clause 1, Article 469 of the 2015 Civil Procedure Code, since the plaintiff is a Vietnamese citizen and the defendant is a foreigner, the case falls under the general jurisdiction of the Vietnamese Courts.
Since the Court of Country A has issued a judgment granting the defendant child custody, the Vietnamese Court needs to instruct the parties to complete the procedures for recognition or non-recognition of the foreign Court's judgment.
If the party requests the Vietnamese Court to recognize or not recognize the foreign Court's judgment:
If the Vietnamese Court issues a decision to recognize the judgment of Country A's Court, the Vietnamese Court shall only consider resolving the plaintiff's divorce request if the divorce has not yet been resolved by Country A's Court.
If the Vietnamese Court issues a decision not to recognize the judgment of Country A's Court, the Vietnamese Court shall consider resolving both the divorce and the common child custody requests of the plaintiff if the divorce has not yet been resolved by Country A's Court.
If the party does not request the Vietnamese Court to recognize or not recognize the judgment of Country A's Court: the Vietnamese Court shall rely on Point (d), Clause 1, Article 472 of the 2015 Civil Procedure Code to temporarily suspend (dismiss) the resolution of the common child custody request; the Vietnamese Court shall only have jurisdiction to resolve the plaintiff's divorce request if Country A's Court has not yet resolved it.
4. In a lawsuit requesting the distribution of an estate, the Court accepted an independent claim from Mr. A and designated him as a Person with related rights and obligations. Mr. A's claim is to recover a property, specifically 50 square meters of land, which is included within the total land area requested for inheritance distribution. Should the Court resolve both issues in the same case, or should the property recovery claim be separated and resolved first, followed by the inheritance distribution?
Article 42 of the 2015 Civil Procedure Code stipulates:
"1. The Court shall consolidate two or more cases that the Court has separately accepted into one case for resolution if the consolidation and the resolution in the same case ensure compliance with law.
...
The Court shall separate a case containing different requests into two or more cases if the separation and the resolution of the separated cases ensure compliance with law."
The dispute relationship regarding the request for estate distribution and the dispute over the claim for land use rights are two different but related legal relationships within the same case. Resolving the property recovery dispute is the basis for the Court to determine the actual estate property when resolving the request for inheritance distribution.
Therefore, to resolve the case accurately, quickly, and in accordance with the law, based on the collected evidence and the parties' requests, the Court may either resolve them in the same case or separate them into two distinct cases, depending on the specific circumstances.
5. A first-instance civil trial is proceeding without the participation of the representative of the Procuracy of the same level. During the trial, the Trial Panel decides to interrupt the trial to verify and collect additional documents and new evidence necessary to resolve the case. After the Court has verified, collected, and supplemented the evidence, the case now falls under the circumstances requiring the participation of the representative of the Procuracy of the same level as stipulated in Clause 2, Article 21 of the 2015 Civil Procedure Code, specifically: "The Procuracy shall participate in first-instance meetings for civil matters; first-instance trials for cases where the Court has conducted evidence collection or...". In this situation, what procedures must the Court follow for the Procuracy's representative to participate in the trial, and must the trial restart from the beginning or continue from the point of interruption?
Pursuant to Point (c), Clause 1, Article 259 of the 2015 Civil Procedure Code, the Trial Panel has the right to decide to interrupt the trial when: "It is necessary to verify and collect additional documents and evidence, which, if not carried out, would make it impossible to resolve the case and cannot be carried out immediately at the trial."
Clause 2, Article 259 of the 2015 Civil Procedure Code stipulates: "The interruption of the trial must be recorded in the trial minutes. The duration of the trial interruption shall not exceed one (01) month from the date the Trial Panel decides to interrupt the trial... The Trial Panel must notify in writing the litigation participants and the Procuracy of the same level about the time to continue the trial."
In this situation, when the interruption period expires and the reason for the interruption no longer exists, the Trial Panel shall continue the trial. To ensure the Procuracy's function of supervising compliance with the law in litigation, upon resuming the trial, the Court shall issue a decision to postpone the trial to send the case file to the Procuracy of the same level for study within a period of 15 days, and the Chief Procurator of the same level shall assign a Procurator to participate in the trial.
6. At the appellate hearing, the plaintiff withdraws the lawsuit petition, and the defendant accepts the withdrawal. The Appellate Trial Panel issues a decision to annul the first-instance judgment and suspend the resolution of the case, but the appellate panel finds that the court fees in the first-instance judgment are incorrect. Does the appellate level have the right to amend the first-instance court fees in the Decision Annulment the First-Instance Judgment and Suspending the Resolution of the Civil Case?
Point (b), Clause 1, Article 299 of the 2015 Civil Procedure Code stipulates on the plaintiff's withdrawal of the lawsuit petition before or at the appellate trial as follows:
"If the defendant agrees, the plaintiff’s withdrawal of the lawsuit petition shall be accepted. The Appellate Trial Panel shall issue a decision to annul the first-instance judgment and suspend the resolution of the case. In this case, the parties shall still bear the first-instance court fees as determined by the first-instance Court and must bear half of the appellate court fees in accordance with the law."
Thus, if the appellate Court discovers that the court fees in the first-instance judgment are incorrect, the appellate Court shall declare the correct first-instance court fees and appellate court fees in the decision to annul the first-instance judgment and suspend the resolution of the civil case.
Source: https://www.toaan.gov.vn/webcenter/portal/tatc/chi-tiet-chi-dao-dieu-hanh?dDocName=TAND285547
