Judgment No. 03/2018/HNGD-ST dated January 11, 2018 regarding determination of paternitya

PEOPLE’S COURT OF DA NANG CITY

JUDGMENT NO. 03/2018/HNGD-ST DATED JANUARY 11, 2018 REGARDING DETERMINATION OF PATERNITY

On January 11, 2018, the first instance trial was conducted at the office of People’s Court of Da Nang City to hear the case No. 39/2017/TLST-HNGD dated October 26, 2017 concerning “Dispute over determination of paternity” based on the Decision to bring the case to trial No. 66/2017/QDXXST-HNGD dated December 8, 2017 and the Decision to delay the court hearing No. 72/2017/QDST-HNGD dated December 25, 2017 between:

- Plaintiff: Mr. Huynh Ba S, born in: 1966. Permanent residence: X07, C Street, Australia.

Temporary residence: X4, Q ward, T district, Da Nang city (with Request for Trial in Absentia).

- Defendant: Mrs. Huynh Thi Kim T, born in: 1987.

Address: X4, Q ward, T district, Da Nang City (present).

- Person with relevant rights and obligations:

Mr. Do Thanh N, born in: 1980.

Last place of residence: X4, Q ward, T district, Da Nang city (declared missing by the court).

THE CASE OF MR. HUYNH BA S

- Representation of Mr. Huynh Ba S in the lawsuit petition, testimony and conciliation record:

I am a Vietnamese with Australian nationality. In 2014, I returned to Vietnam and knew Mrs. Huynh Thi Kim T in Da Nang. In 2015, Mrs. Huynh Thi Kim T got pregnant and gave birth to a baby girl named Huynh Kim Truc L on February 1, 2016.

According to the DNA paternity test result of Sub-Institute of Criminal Science affiliated to the Ministry of Public Security ordered by the court, Huynh Kim Truc L is my biological child to me and Mrs. Huynh Thi Kim T.

I hereby request the court to determine that Huynh Kim Truc L who was born on February 1, 2016 is my biological child.

- Representation of Mrs. Huynh Thi Kim T according to her testimony, conciliation record:

Mr. Do Thanh N was my ex-husband who was declared missing by People’s Court of district T. In 2016, I petitioned for divorce from Mr. Do Thanh N and was accepted by People’s Court of district T, Da Nang city. Huynh Kim Truc L is my child with another man.

I contest Mr. Huynh Ba S's petition to determine his paternity of Huynh Kim Truc L because he and I have no affection relationship. I do not raise any opinion against the DNA paternity test result of Sub-Institute of Criminal Science affiliated to the Ministry of Public Security and just request the court to hear the case as per the law.

- Mr. Do Thanh N leaves no testimony in the case file.

-The designated representative of the People’s Procuracy of Da Nang city confirms that all the legal proceedings carried out by the judge, trial panel, and litigants are deemed compliant with law on procedures from the acceptance of the case to the time prior to the consideration of the trial panel, the trial panel is requested to apply Article 89, 91 of the Law on Marriage and Family to determine that Huynh Kim Truc L is the biological child of Mr. Huynh Ba S.

JUDGEMENT OF THE COURT

After trial panel studied evidence available in the case file, verified them at the court hearing and announced them publicly; after the representative of the People’s Procuracy of Da Nang city raised his/her opinion; after discussion and consideration, the trial panel deems that:

 [1] The plaintiff is a person having foreign nationality who petitioned for determination of paternity against the Vietnamese defendant, therefore, this case was supposed to be under jurisdiction of People’s Court of Da Nang city as prescribed in Clause 4 Article 28, Article 37 and Article 469 of the Civil Procedure Code in Viet Nam.

 [2] Mr. Huynh Ba S submitted a Request for Trial in Absentia, person with relevant rights and obligations Mr. Do Thanh N was declared missing by the court and the court posted legal proceedings of Mr. Do Thanh N as per the law. Therefore, the court hears the case in absence of these persons pursuant to Article 227 and Article 464 of the Civil Procedure Code.

 [3] Mr. Huynh Ba S claimed that in 2014, he returned to Vietnam and had an affection relationship with Mr. Huynh Thi Kim T. In 2015, Mrs. Huynh Thi Kim T got pregnant and gave birth to Huynh Kim Truc L. Mrs. Huynh Thi Kim T contested Mr. Huynh Ba S's petition to determine his paternity of Huynh Kim Truc L and requested the court to hear the case as per the law.

 [4] According to the DNA paternity test result No. 793/C45C(D5) dated November 23, 2017 of Institute of Criminal Science affiliated to the Ministry of Public Security, Huynh Kim Truc L is a biological child to Mr. Huynh Ba S and Mrs. Huynh Thi Kim T with the probability of parentage of 99.9999%.

 [5] The petition of Mr. Huynh Ba S for determination of paternity of Huynh Kim Truc L has scientific evidence and in accordance with Clause 1, Article 89, Article 91, Clause 2 Article 102 of the Law on Marriage and Family in Viet Nam, so the trial panel accepts the petition as requested by the representative of the People’s Procuracy.

 [6] Marriage and family first instance court fee: Mrs. Huynh Thi Kim T must pay a court fee as per the law because the petition of Mr. Huynh Ba S is accepted. The paid court fee advance will be refunded to Mr. Huynh Ba S.

 [7] DNA paternity test cost: Mrs. Huynh Thi Kim T must pay DNA paternity test cost as per the law because the result shows that his petition is well-grounded. The paid DNA paternity test cost will be refunded to Mr. Huynh Ba S.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Clause 4 Article 28, Article 161, Article 162, Article 227, Article 271, Article 273, Article 464; Article 469 of the Civil Procedure Code; Clause 1 Article 89, Article 91, Clause 2 Article 102 of the Law on Marriage and Family; Clause 2 Article 26 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of National Assembly on court fees and charges, remission, collection, payment, management and use thereof.

1/ Accept the petition of Mr. Huynh Ba S for determination of his paternity against Mrs. Huynh Thi Kim T.

Huynh Kim Truc L (girl), born on February 1, 2016 is determined as a biological child to Mr. Huynh Ba S.

2/ Marriage and family first-instance court fee: Mrs. Huynh Thi Kim T must pay VND 300,000.

3/ Refund Mr. Huynh Ba S VND 300,000 of paid court fee advance (receipt No. 0001897 dated September 1, 2017 of Sub-Department of Civil Judgment Enforcement of T District, Da Nang city

4/ DNA paternity test cost: Mrs. Huynh Thi Kim T is compelled to refund Mr. Huynh Ba S VND 8,940,000 (In words: Eight million, nine hundred and forty thousand dong).

5/ From the date on which Mr. Huynh Ba S requests judgment enforcement until the judgment will have been completely enforced, every month, Mrs. Huynh Thi Kim T must incur an interest rate prescribed in Clause 2 Article 468 of the Civil Code 2015 in Viet Nam on the judgment debt.

6/ Right to appeal:

6.1. Mr. Huynh Ba S, who has lived abroad and absent from the court hearing, has the right to appeal the judgment within 1 month from the date on which the judgment is duly served.

6.2. Mrs. Huynh Thi Kim T, who is present at the court hearing, has the right to appeal the judgment within 15 days from the date of which the judgment is announced.

6.3. Mr. Do Thanh N, who is absent from the court hearing, has the right to appeal within 15 days from the date on which the judgment is posted.

7/ In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.