Judgment no. 32/2018/HNGD-ST dated may 18, 2018 on divorce petition involving foreign elements

PEOPLE’S COURT OF KIEN GIANG PROVINCE

JUDGMENT NO. 32/2018/HNGD-ST DATED MAY 18, 2018 ON DIVORCE PETITION INVOLVING FOREIGN ELEMENTS

On May 18, 2018, the first-instance trial court was conducted at the office of People’s Court of Kien Giang province to hear the case No. 30/2017/TLST-HNGD dated July 18, 2017 regarding a divorce petition involving foreign elements. Pursuant to Decision to hear the case No. 13/2018/QDST-HNGD dated April 3, 2018 between litigants below:

- Petitioner:  Mrs. Tran Thi M, year of birth: 1997 (present).

Address: TAI Village, Circular Commune, TH District, Kien Giang Province.

- Respondent:  Mr. KANG H, date of birth: March 29, 1982 (absent).

Address: 311-1, Gilseong, Ibanseong-m, Jinju-s, Gyeongsangnam-d, Korea.

THE CASE

Representation of in the lawsuit complaint dated May 4, 2016 and the representation made at the trial by the petitioner, Mrs. Tran Thi M:

She and Mr. Kang H got to know each other through marriage brokerage in Ho Chi Minh City, they got married, celebrated the wedding and registered marriage at the People’s Committee of TH District, Kien Giang Province and were granted the marriage certificate No. 75 on September 23, 2016.

From the wedding to January 2017, she was sponsored by Mr. Kang H to live in Korea. She had lived with Mr. Kang H at the address 311-1, Gilseong, Ibanseong-m, Jinju-s, Gyeongsangnam-d, Korea for 9 days before she asked her family-in-law to return to Vietnam and terminated the marriage relationship with Mr. Kang H because she and Mr. Kang H have language barrier and conflict in daily live since January 2017. They no longer contact with each other.

Realizing that they cannot keep living happily together. As for that reason, the petitioner filed for a divorce to request the following matters:

With reference to marriage: She filed for a divorce from Mr. Kang H.

With reference to common children, property and liabilities: They have no common child, property or liability so the court is not petitioned to settle.

Regarding the respondent: After the Court accepted the case according to the lawsuit petition of Mrs. Tran Thi M, on August 31, 2017, the People’s Court of Kien Giang Province issued an Official Dispatch No. 53/TTTPDS-TA33 dated August 31, 2017 to serve the judicial document, which is the notice of acceptance of the case No. 58/TB-TLVA dated July 18, 2017 to the respondent, Mr. Kang H and fix the time to open the reconciliation meeting at 14:00 on January 26, 2018; and the time to re-open the reconciliation meeting at 14:00 on February 26, 2018; the time to open the court hearing at 08:00 on April 18, 2018; and the time to re-open the court hearing at 08:00 on May 18, 2018. However, Mr. Kang H did not send any written reply to the Court and was still absent at reconciliation meetings and court hearings.

Opinions from the representative of People’s Procuracy of Kien Giang province: People's Court of Kien Giang province has full jurisdiction over the case in which the party concerned – the respondent is a foreigner as authorized. During the settlement of the case and at the trial, the judge, jury, court reporter and the petitioner has conformed to provisions of the Civil Procedure Code.  As for the respondent, although the court has legitimately given the judicial entrustment to serve court papers to Mr. Kang H, he neither gave any response nor received the papers served. Hence, the act in which the jury decided to hear a case in the absence of the husband is legally accepted.

In respect of Mrs. M’s lawsuit petition:  As Mrs. M and Mr. Kang H failed to live a married life together, they had language barrier and conflict in daily lives are no longer being in love with each other. Hence, the trial panel is requested to accept the divorce petition of Mrs. Tran Thi M. And they do not have any request with reference to common children and property.

JUDGEMENT OF THE COURT

[1] In terms of court procedures: The respondent, Mr. Kang H, was served the notice of acceptance of the case No. 58/TB-TLVA dated July 18, 2017 through judicial assistance by People’s Court of Kien Giang Province to the competent authority of Taiwan as prescribed in Article 11 and 13 of the Law on Judicial Assistance and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters passed on November 15, 1965 and coming into force from February 10, 1969. The Ministry of Justice of the Socialist Republic of Vietnam issued the Official Dispatch No. 1380/CH-BTP dated October 6, 2017, requesting the Supreme’s Court of Korea  Therefore, the trial panel applies Point b Clause 5 Article 477 of the Civil Procedure Code to hear the case in the absence of Mr. Kang H.

[2] With reference to conjugal relationship: Mrs. Tran Thi M and Mr. Kang H got to know each other through a marriage broker, after a short courtship and cohabitation, they celebrated wedding and registered marriage and were granted the marriage certificate No. 75 dated September 23, 2016 by the People’s Committee of TH District, Kien Giang Province. This is a legal marriage in accordance with Article 9, Article 10 of the Law on Marriage and Family 2000 and Article 8, Article 9 of the Law on Marriage and Family 2014.

However, she had been sponsored by Mr. Kang H to live with him in Korea. She had lived there for 9 days before they had language barrier and conflict in daily lives and she returned to Vietnam and terminated the marriage with Mr. Kang H. Thus, their marriage relationship no long has spousal attachment in accordance with Article 19 of the Law on Marriage and Family 2014. The Trial Panel has valid ground for determining that their marriage falls into bad situation and cannot be maintained, if it keeps prolonging, they will be both suffered. Hence, the Trial Panel is well-grounded to accept the petition of Mrs. M and request of the representative of the People’s Procuracy of Kien Giang Province and grant her divorce from Mr. Kang H as prescribed in Clause 1 Article 56 of the Law on Marriage and Family 2014.

[3] With reference to common children: The couple has no common child during the time living together so the court is not requested to settle.

[4] With reference to common property and liabilities: No common property is claimed so the court is not requested to settle.

[5] With reference to court fee: The court fee shall be paid under provisions in Clause 4 Article 147 of the Civil Procedure Code, Article 48 of Resolution No.326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on amount, remission, collection, payment, management and use of court costs and fees, Clause 8 Article 27 and Clause 1 Section I regarding the List of court costs and fees issued together with the Ordinance No.10/2009/UBTVQH12 dated February 27, 2009 on court costs and fees.

Mrs. Tran Thi M has to pay the first-instance civil court fee of VND 300,000, which shall be deducted from the paid advance of first-instance court fee.

[5] Other proceeding costs: The judicial assistance abroad cost is VND 200,000 according to the receipt No. 0030960 dated August 16, 2017 of Civil Judgment Enforcement Agency of Kien Giang Province.

Mrs. Tran Thi M has made full payment as prescribed in Clause 3 Article 153 of the Civil Procedure Code.

As for the amount of VND 3,000,000, Mrs. Tran Thi M paid the advance of judicial assistance cost according to the receipt No. 07338 dated August 16, 2017 of Department of Civil Judgment Enforcement of Kien Giang Province.

Mrs. Tran Thi M has made full payment as prescribed in Clause 1 Article 154 of the Civil Procedure Code.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Clause 3 Article 153, Clause 1 Article 154, Point d Clause 1 Article 469, Clause 3 Article 474, Point b Clause 5 Article 477, Clause 2 Article 479 of the Civil Procedure Code; Clause 1 Article 56 of Marriage and Family Law 2014; Clause 4 Article 147 of the Civil Procedure Code; Article 48 of Resolution No.326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of National Assembly on amount, remission, collection, payment, management and use of court costs and fees; Clause 8 Article 27, Clause 1 item about the list of court costs and fees issued together with Ordinance No.10/2009/UBTVQH12 dated February 27, 2009 providing for court costs and fees; Article 11 and Article 13 of the Law on Judicial Assistance and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters passed on November 15, 1965 and coming into force from February 10, 1969.

- Hereby judges:

Accept the lawsuit petition of the petitioner, Mrs. Tran Thi M.

1. With reference to conjugal relationship: Mrs. Tran Thi is granted a divorce from Mr. Kang H.

2. With reference to common children: Mrs. Tran Thi M and Mr. Kang H do not have common children, so the Court will not consider it further.

3. With reference to common property and liabilities: Mrs. Tran Thi M does not claim, so the Court will not consider it further.

4. With reference to court fees: Mrs. Tran Thi M has to pay the first-instance civil court cost of VND 300,000, which shall be deducted from the first-instance court cost paid in advance according to the court cost and fee payment receipt No.0005971 dated July 13, 2017 issued by the Department of Civil Judgment Enforcement of Kien Giang province.   Mrs. M is not required to pay extra court fee.

5. Other proceeding costs: The judicial assistance abroad cost is VND 200,000 according to the receipt No. 0030960 dated August 16, 2017 of Civil Judgment Enforcement Agency of Kien Giang Province. Mrs. Tran Thi M has made full payment.

The judicial assistance abroad cost is VND 3,000,000 according to the receipt No. 07338 dated August 16, 2017 of Civil Judgment Enforcement Agency of Kien Giang Province. Mrs. Tran Thi M has made full payment.

6. Right to appeal: Mrs. Tran Thi M is entitled to submit a written appeal within 15 (fifteenth) days from the day on which the judgment is pronounced (May 18, 2018) to the superior People's Court in order to request an appeals court.

Mr. Kang H may rightfully appeal the judgment within 1 month from the day on which this judgment is served or publicly notified as per law provisions.

7. In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, 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, 7a 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.