Official Dispatch 443/VKSTC-V9 of Vietnam: Answering questions about professional procuracy for the settlement of civil, marriage and family cases?
- The Supreme People's Procuracy in Vietnam has just issued a Dispatch answering questions about procuracy in the settlement of civil, marriage and family cases?
- Answering questions about procuring deposit contract disputes in Vietnam?
- What is the answer to the procuratorate's decision to recognize the results of successful mediation and successful dialogue at the Court in Vietnam?
The Supreme People's Procuracy in Vietnam has just issued a Dispatch answering questions about procuracy in the settlement of civil, marriage and family cases?
On February 15, 2023, the Supreme People's Procuracy of Vietnam (Department 9) issued Official Dispatch 443/VKSTC-V9 in 2023 on answering questions about procuracy for the settlement of civil, marriage and family cases.
As noted in Official Dispatch 443/VKSTC-V9 in 2023, in recent years, the Supreme People's Procuracy of Vietnam (Department 9) has received many comments and questions from the subordinate People's Procuracy (VKSND) stating professional difficulties and problems in procuring the settlement of civil cases, marriage and family.
Case 9 has synthesized and selected new and important issues, many procuratorates encountered and coordinated with the 14th Department of the Supreme People's Republic to respond to 11 issues on procuracy in solving civil, marriage and family cases.
Official Dispatch 443/VKSTC-V9 of Vietnam: Answering questions about professional procuracy for the settlement of civil, marriage and family cases?
Answering questions about procuring deposit contract disputes in Vietnam?
Regarding the deposit contract dispute, the Supreme People's Committee answered the problem in Question 6 of Official Dispatch 443/VKSTC-V9 in 2023 as follows:
In the case of "Deposit contract dispute", in the deposit contract, the parties agree: Party A assigns the deposit amount to Party B as soon as the contract is signed; Party B commits to complete the papers and procedures to transfer land use rights to Party A; In addition, there is agreement on the obligations of the parties and the penalty of deposits.
Performing the contract, Party A has delivered enough money, but Party B does not contact the state agency to carry out the procedures for issuing land use right certificates to carry out transfer procedures for A. Party A initiates a lawsuit to cancel the deposit contract and fine the deposit.
There are 02 views on solving the case:
First point of view: Because Party B has seriously violated the obligations agreed in the Contract, the Court relies on Article 423 of the Civil Code of Vietnam 2015 and Article 427 of the Civil Code of Vietnam 2015 to cancel the deposit contract and impose a deposit penalty on Party B.
Second point of view: It must be determined that the deposit contract is valid, not canceled. Party B that violates its obligations in the contract shall be subject to the sanctions agreed upon in the Contract.
Which view is correct?
Answer:
In the above case, the deposit contract has come into force and is being executed, party A has delivered enough money but party B breached the obligations in the contract. Party B's violation is determined to be a "serious breach of contractual obligations" because it leads to the inability to enter into a contract for the transfer of land use rights (because Party B is not granted a land use right transfer contract), which is the basis for canceling the contract according to Point b, Clause 1 and Clause 2, Article 423 of the Civil Code of Vietnam 2015.
Article 427 of the Civil Code of Vietnam 2015 on the consequences of contract cancellation, in Clauses 1 and 2, stipulates: "1. When the contract is canceled, the contract does not take effect from the time of signing, the parties do not have to perform the agreed obligations, except for the agreement on penalties for violations, compensation for damages and agreement on dispute resolution. 2. The parties must reimburse each other for what they have received after deducting reasonable expenses in the performance of the contract...". Therefore, the Court can cancel the deposit contract at the request of Party A. Party B must return the deposit to Party A and be subject to a deposit penalty.
If the Court does not cancel the contract, it will not ensure the legitimate rights and interests of Party A because in case of continuing to perform the contract, Party A does not achieve the purpose of entering into the contract, while still suffering damages due to the deposit assigned to Party B in full; if Party A refuses to enter into the contract, Party A will lose the deposit according to Clause 2, Article 328 of the Civil Code of Vietnam, while Party A has no violations in the performance of the deposit contract.
What is the answer to the procuratorate's decision to recognize the results of successful mediation and successful dialogue at the Court in Vietnam?
In the face of the problems raised about the decision to recognize the results of successful mediation, successful dialogue at the Court such as
- The Court does not send a notice of acceptance of the case of Mediation or Dialogue at Court to the Procuracy, but only sends the Decision on recognition of the results of successful conciliation and successful dialogue, leading to difficulties in updating the procuratorate, statistics and data reports.
- The decision to recognize the results of successful conciliation and successful dialogue at the Court is not included in the form system for settling civil cases and administrative cases, so the Procuracy has no grounds for procuracy in the form of decision.
In Question 1 of Official Dispatch 443/VKSTC-V9 in 2023, Supreme People's Procuracy of Vietnam has answered the question of procuracy in deciding to recognize the results of successful conciliation and successful dialogue at the Court as follows:
2020 From January 1, 2021, the Vietnam Law on Mediation or Dialogue at Court 2020 takes effect, the Procuracy must procur the decision to recognize the results of successful conciliation and successful dialogue at the Court with specific tasks and powers specified in the Vietnam Law on Mediation or Dialogue at Court as follows:
The Procuracy shall receive the Decision on recognition or non-recognition of the results of successful conciliation or successful dialogue; have the right to propose a reconsideration of the Decision on recognition of the results of successful conciliation or successful dialogue if there are grounds to determine the contents of the agreement with violations (Clauses 1 and 3, Article 36 of the Vietnam Law on Mediation or Dialogue at the Court 2020, Article 37 of the Vietnam Law on Mediation or Dialogue at Court 2020); have the right to withdraw petitions (Article 38 of the Vietnam Law on Mediation or Dialogue at Court 2020); receive decisions of the Court on the settlement of proposals and petitions (Article 38 of the Vietnam Law on Mediation or Dialogue at Court 2020).
According to Article 2 of Circular 03/2020/TT-TANDTC detailing the order of receiving and processing petitions and petitions at the Court and appointing a Mediator, there is no procedure for handling cases to be reconciled and dialogued at the Court, but only the Court's record in the application book, confirm the receipt of the application before carrying out the procedure of notifying the petitioner, the petitioner of the right to choose mediation, dialogue and the choice of Mediator.
On 31/12/2021, the Supreme People's Court issued Official Dispatch 235/TANDTC-PC in 2021 identifying a number of forms on decisions on recognition, non-recognition of results of successful conciliation and successful dialogue at the Court, including the following 06 forms of decisions:
(1) The decision to recognize the results of successful mediation in court;
(2) The decision not to recognize the results of successful mediation in court;
(3) The decision to recognize the consent of the divorce and the agreement of the parties to the mediation in court;
(4) The decision not to recognize the consent of the divorce and the agreement of the parties to the mediation in court;
(5) The decision to recognize the results of the successful dialogue in the Court;
(6) The decision not to recognize the results of the successful dialogue in the Court. All 06 decisions above were sent to the Procuracy of the same level.
Currently, the Supreme People's Procuracy of Vietnam has not prescribed the criteria for procuracy to recognize the results of successful conciliation and successful dialogue at the Court, but the Procuracy must fully supervise the above-mentioned decisions. Contents of procuracy include:
(1) Procuracy on the time limit for the Court to send the decision to the Procuracy according to Clause 4, Article 32 of the Vietnam Law on Mediation or Dialogue at Court 2020 (within 03 working days from the date of issuance of the Court's decision);
(2) Procuring the form of the Decision according to the form issued in Official Dispatch 235/TANDTC-PC in 2021 mentioned above;
(3) Whether the case has been reconciled or whether the dialogue falls within the scope of the Vietnam Law on Mediation or Dialogue at Court 2020;
(4) Procuracy conditions for recognition of results of successful conciliation and successful dialogue according to Article 33 of the Vietnam Law on Mediation or Dialogue at Court 2020
(5) Exercise the right to petition when detecting violations under Articles 36 2020 of the Vietnam Law on Mediation or Dialogue at Court 2020, Article 37 of the Vietnam Law on Mediation or Dialogue at Court 2020 and Article 38 of the Vietnam Law on Mediation or Dialogue at Court
The Procuracy has the right to petition for 03 types of decisions: The decision to recognize the results of successful mediation at the Court, the Decision to recognize the consent to divorce and the agreement of the parties to the mediation at the Court, the Decision to recognize the results of successful dialogue at the Court.
These types of decisions are not subject to appeals to appellate judges, judges, and retrials as prescribed. Non-recognition decisions are not recommended because the case will be handled by the Court and the Procuracy will continue to supervise the settlement of the case as prescribed.
The Procuracy should actively set up monitoring books, ensure that the situation of cases is reconciled, dialogue at the Court and procuratorial results. The procuracy dossier on recognition of the results of the establishment of conciliation shall be established in accordance with Article 6 of the Regulations on the establishment, management and use of procuracy dossiers on the settlement of civil, marriage and family, business, commercial and labor cases in the People's Procuracy (issued together with Decision 264/QĐ-VKSTC in 2022 of the Director of the Supreme People's Procuracy of Vietnam).
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