What are the procedures for declaring a person lacking civil act capacity, having limited civil-act capacity or having limited cognition or behavior control in Vietnam?
Vietnam: What is the lack of legal capacity?
Article 22 of the 2015 Civil Code provides for the loss of civil act capacity:
"Article 22. Lack of legal capacity
1. A court shall, based on the opinion of forensic-psychiatric examination by any authorized organization and at the request of a person with related rights or interests or a relevant agency or organization, issue a decision to declare a legally incapacitated person who as a result of his/her mental or other illnesses cannot realize or conduct his/her actions.
Where the basis on which a person has been declared incapacitated no longer exists, the court shall, at the request of such person or any person with related rights or interests, issue a decision to revoke the decision declaring the incapacitated person.
2. All civil transactions of a legally incapacitated person shall be established and performed by his/her legal representative.
Thus, a person is considered to have lost legal capacity when there is a decision to declare a legally incapacitated person who as a result of his/her mental or other illnesses cannot realize or conduct his/her actions issued by Court or relevant agency.
What are persons with limited civil-act capacity in Vietnam?
According to Article 24 of the 2015 Civil Code, persons with limited civil-act capacity are as follows:
"Article 24. Persons with limited legal capacity
1. A court shall, at the request of a person with related rights or interests or a relevant agency or organization, issue a decision to declare a person with limited legal capacity after excessive drug consumption or other psychotropic substances, worsening material situation of the family.
The court shall appoint a legal representative of the person with limited legal capacity and the representation scope.
2. All civil transactions related to the property of a person with limited legal capacity declared by a court must obtain the consent of his/her legal representative, except for transactions to meet the needs of daily life.
3. Where the basis on which a person has been declared limited capacity of exercise no longer exists, the court shall, at the request of such person or any person with related rights or interests, issue a decision to revoke the decision declaring the incapacitated person."
Legal capacity
What are the procedures for declaring a person lacking civil act capacity, having limited civil-act capacity or having limited cognition or behavior control in Vietnam?
Pursuant to Articles 376 and 377 of the Code of Civil Procedure 2015 stipulates:
“Article 376. Right to file petitions for declaring a person lacking civil act capacity, having limited civil-act capacity or having limited cognition or behavior control
1. People with relevant rights and interests and concerned agencies and organizations may file petitions to Courts for declaring a person lacking civil act capacity, having limited civil-act capacity or having limited cognition or behavior control.
2. Adult people having limited cognition due to physical and mental conditions but do not lack civil capacity may file petitions to Courts for declaring them having limited cognition or behavior control according to provisions of the Civil Code."
"Article 377. Preparation for consideration of petitions
Within the time when the petitions are considered, at the request of petitioners, Courts may request health assessment for the persons requested to be declared having limited civil-act capacity or forensic psychiatric assessment for the persons requested to be declared lacking legal capacity or having limited cognition or behavior control. In such cases, when the assessment results are received, Courts shall make decisions to open meetings for consideration of petitions.”
Thus, according to the above provisions, people with relevant rights and interests and concerned agencies and organizations may file petitions to Courts for declaring a person lacking civil act capacity, having limited civil-act capacity or having limited cognition or behavior control.
The Court may accept or not accept its petition, however, if it accepts the application, the Court will consider and issue a decision on lacking civil act capacity, having limited civil-act capacity or having limited cognition or behavior control.
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