20/07/2022 11:16

Distinguishing cassation and retrial in civil in Vietnam

Distinguishing cassation and retrial in civil in Vietnam

Cassation and reopening are quite familiar concepts in the proceedings. So now that you have a good understanding of these two procedures, what similarities and differences do they have?

 

Cassation

Retrial

Concept

A review of a legally effective court judgment or decision but is protested against by cassation when there are grounds for protest as prescribed.

A review of a legally effective judgment or decision that is protested against because a newly discovered circumstance may fundamentally change the content of the judgment or decision without the knowledge of the Court or the involved parties when the Court issues that judgment or decision.

Grounds for appeal

- The conclusion in the judgment or decision is not consistent with the objective details of the judgment, causing damage to the lawful rights and interests of the involved parties;

- There is a serious violation of procedural procedures, making the involved parties unable to perform their procedural rights and obligations, resulting in their legitimate rights and interests not being protected in accordance with law;

There is a mistake in the application of the law leading to the issuance of an incorrect judgment or decision, causing damage to the lawful rights and interests of the involved party, infringing upon the interests of the public or the State; legitimate rights and interests of a third party.

Recently discovered important details of the case that the involved parties could not know during the settlement of the case;

- There are grounds to prove that the expert's conclusion, the interpreter's translation is not true or there are fake evidence;

- Judges, people's jurors and procurators intentionally falsify the case files or intentionally make illegal conclusions ;

- Criminal, administrative, civil, marriage and family, business, commercial and labor judgments and decisions of the Court or decisions of state agencies on which the Court bases its settlement was dropped.

Time limit for appeal

- Have the right to protest within 03 years from the date the court's judgment or decision takes legal effect, except for the case specified in Clause 2 of this Article.

- If the time limit for protest has expired as prescribed in Clause 1 of this Article but the following conditions are met, the time limit for protest may be extended for another 2 years from the date of expiration of the time limit for protesting:

+ The involved parties have made a written request as prescribed in Clause 1, Article 328 of this Code, and after the expiration of the time limit for protest specified in Clause 1 of this Article, the involved parties still continue to make an application;

+ The legally effective court judgment or decision violates the law as prescribed in Clause 1, Article 326 of this Code, seriously infringing upon the lawful rights and interests of the involved parties, the parties; thirdly, infringing upon the interests of the community or the State and must protest to remedy errors in the legally effective judgment or decision.

The time limit for protesting according to reopening procedures is 01 year from the date the person competent to protest knows the grounds for protesting.

Persons entitled to appeal

- The Chief Justice of the People's Court, the Chief Procurator of the People's Procuracy of Vietnam has the authority to protest against legally effective judgments or decisions of the high-level People's Courts; legally effective judgments or decisions of other courts when deemed necessary, except for cassation decisions of the Judges' Council of the People's Court.

- The Chief Justice of the High People's Court and the Chief Procurator of the Senior People's Procuracy have the right to protest against legally effective judgments and decisions of the People's Courts of provinces and districts within their territorial jurisdiction.

Scope of review

- The cassation or reopening trial panel shall only review the part of the decision of the legally effective judgment or decision that is protested against or is related to the consideration of the protested content.

- The cassation or reopening trial panel has the right to consider the part of the decision of a legally effective judgment or decision that is not protested against or is not related to the consideration of the protested content if the part of the decision is not protested against or is not related to the content of the protest. such decision infringes upon the public interests, the interests of the State or the interests of a third party who is not an involved party in the case.

The time limit for opening the trial

Within 04 months from the date of receipt of the protest decision enclosed with the case file.

Legal basis: The Civil Procedure Code 2015 of Vietnam 

Sang Nguyen
96


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