Some issues regarding authorization to participate in Civil procedures in Vietnam

In civil cases, according to the regulations, the parties may participate directly or authorize someone else to participate on their behalf in cases where they are summoned by the Court in relation to civil cases. The authorization is regulated in Articles 85, 86, 87, 88, 89, and 90 of the Civil Procedure Code 2015 and Articles 562 to 563 of the Civil Code 2015.

1. Content of authorization

According to Clause 1 of Article 85 of the Civil Procedure Code 2015, the authorized representative in the Civil Code is the person authorized to represent in civil litigation. However, when considering the Civil Code 2015 in Section 13 (regulation on authorization contracts), there is no specific provision on the content of authorization. According to Article 562, "an authorization contract is an agreement between the parties whereby the authorized party has the obligation to perform tasks on behalf of the authorizing party". But what specific tasks are included? There is no specific provision for this matter.

For example, Mr. A sues Ms. B regarding the division of the inheritance left by the deceased parents N and M (N died in 1989 and M died in 2001, and they had six children together). Among the six children, Ms. H and Mr. T are residing abroad. To ensure the rights of the parties, the Court requested the opinions of Ms. H and Mr. T on the content of the lawsuit, and the written opinions were legalized by the consulate as required. After receiving the Court's document, Ms. H and Mr. T authorized Lawyer K on their behalf to participate in the trial in the above-mentioned case. The authorization document states that Ms. H and Mr. T authorize Lawyer K "...to represent Ms. H and Mr. T in the Court proceedings and have full authority to decide and settle all issues in the case, and also request the Court to divide the inheritance according to Vietnamese law."

From the above example, there are two different views on the content of the authorization given by Ms. H and Mr. T to Lawyer K:

- The first view argues that the content of the authorization given by Ms. H and Mr. T to Mr. K is not in accordance with the legal provisions. Specifically, Mr. K cannot represent Ms. H and Mr. T to request the Court to divide the inheritance according to the law because Ms. H and Mr. T are identified as parties with rights and obligations related to the lawsuit. Once there is a request to divide the inheritance according to the law for the deceased parents' assets (specifically, an independent request), the procedure is to be carried out according to the provisions on the initiation of a lawsuit by the plaintiff; specifically, in this case, Ms. H and Mr. T must file a lawsuit and sign their names on their own lawsuit as stipulated in Article 186 of the Civil Procedure Code 2015. Therefore, Mr. K cannot represent Ms. H and Mr. T to request the division of the inheritance according to the law, so this authorization is not legal.

- The second view argues that the content of the authorization given by Ms. H and Mr. T to Mr. K is in accordance with the legal provisions. According to Clause  1 of Article 134 of the Civil Code 2015, "representation is the act of an individual or a legal entity in the name of and for the benefit of another individual or legal entity, performing civil transactions." Therefore, Mr. K acted on behalf of Ms. H and Mr. T to request the Court to divide the inheritance according to the law, and this task is within the scope of authorization from the parties. Furthermore, Mr. K's role as a representative under authorization for Ms. H and Mr. T does not fall under the cases where representation is not allowed (Article 87 of the Civil Procedure Code 2015). Therefore, the transaction through an authorization contract between Ms. H, Mr. T, and Mr. K does not violate the law, and Mr. K is entitled to represent Ms. H and Mr. T and file the lawsuit on their behalf. If Mr. K exceeds the scope of authorization agreed upon by Ms. H and Mr. T, he will be held responsible according to the provisions of Article 143 of the Civil Code 2015.

2. Termination of the authorization contract

Clause 1 and clause 2 of Article 569 of the Civil Code 2015 prescribe the cases of unilateral termination of the authorization contract. According to these provisions, if the authorized party or the authorizing party wishes to unilaterally terminate the authorization contract, they must notify the other party of the termination. In cases where there are consequences from the authorization contract, compensation for damages must be provided according to Article 585 of the Civil Code 2015.

However, in reality, there have been cases where there is insufficient basis to determine whether the authorized contract between the parties has been terminated or not.

For example, in June 2000, Ms. L sold a 4-storey house to Ms. V at 5/15 Nguyen Van Cu Street, An Binh Ward, Ninh Kieu District, Can Tho City, for 160 taels of gold. However, later on, the authorities determined that Ms. V did not meet the requirements for purchasing the house according to the current Housing Law. Afterward, Ms. V sued Ms. L for the dispute over the house purchase contract, specifically demanding that Ms. L compensate her with the equivalent amount of 80 taels of gold that she had paid in advance.

The case was resolved multiple times but was ultimately dismissed by the director of the court. During the process of resolving the case, Ms. L emigrated to the United States, and then she authorized her son-in-law, Mr. K, in her name to participate in the lawsuit. However, in 2010, Mr. K suffered a stroke (confirmed by the hospital) and was unable to attend the trial. The court then sent a notification to Ms. L and requested her opinion. Later, Ms. L's family provided the court with a medical certificate from the hospital in the United States, stating that Ms. L was 85 years old and no longer mentally capable of participating in the trial or appointing someone else as her representative. In order to determine whether Ms. L or Mr. K had limited capacity or lacked civil capacity to act according to the provisions of Articles 16 and 19 of the Civil Code of 2015, an assessment by an evaluation organization and a request from the relevant party with rights and obligations would be required. However, both Ms. L's family and the plaintiff, Ms. V, did not make such requests. Therefore, the validity of the authorization contract between Ms. L and Mr. K is still controversial. 

Viewpoint 1: The authorization contract between Ms. L and Mr. K is still legally valid. This is because current law only regulates unilateral termination of authorization contracts when notifying the other party within a reasonable period of time, and between Ms. L and Mr. K, there has been no request to terminate the authorization contract between the two parties, and the Court has not made any decision regarding the limited capacity or loss of legal capacity of Ms. L or Mr. K. Therefore, this authorization contract is still legally effective.

Viewpoint 2: It is believed that the authorization contract between Ms. L and Mr. K has been terminated and is no longer legally valid. According to Article 565, Clause 1 of the Civil Code of 2015, which states "Perform the assigned tasks and report to the authorizing party on the performance of those tasks," Mr. K accepted the authorization from Ms. L but did not report the progress of the tasks to Ms. L, resulting in the failure to fulfill the agreed obligations between the two parties. Therefore, this authorization contract is naturally no longer legally valid.

Based on these two viewpoints and in comparison with the provisions of the law regarding the unilateral termination of the authorization contract, the civil law does not specifically regulate the above case. However, out of the two viewpoints, viewpoint 1 may be more appropriate because the law has already determined that the unilateral termination of the authorization contract is not a violation, and in the above case, the authorization contract will only cease to be legally valid when there is a legally effective decision by the court declaring that Ms. L or Mr. K has limited capacity or lacks civil capacity or when they pass away.

3. Duration of the authorization

Regarding the effective period of the authorization contract, Article 563 of the Civil Code of 2015 has determined three cases regarding the duration of the authorization:

- A duration agreed upon by the parties;

- As prescribed by law;

- If there is no agreement and the law does not have any provisions, the authorization contract is valid for one year from the date of establishing the authorization.

However, when applying this law in practice, there have been certain difficulties and challenges that arise.

For example, in a civil case, for some reason, the parties involved in the lawsuit cannot directly participate in the case and choose to delegate authority to someone else, which could be a relative or a lawyer, to represent them in the lawsuit. Usually, in these power of attorney contracts, the parties specify the duration of the authorization in the contract or state, "Duration of Authorization: From the beginning until the end of the lawsuit with a legally effective court judgment". Therefore, the end date of the authorization is relatively clearly defined as "until the end of the lawsuit with a legally effective court judgment".

However, the issue that arises is: when does the case actually begin? Referring to the provisions of the Civil Procedure Law as well as the current Code of Civil Procedure, there is no specific regulation on when a case begins. Currently, there are different opinions on this matter, such as:

Some believe that the case begins from the moment the plaintiff files a complaint, claiming that their legal rights and interests have been violated and requesting competent authority to protect their rights and interests.

On the other hand, others argue that the case does not begin from the moment the plaintiff files a complaint but rather from the moment the competent authority (not necessarily the court) receives their complaint. Only when the competent authority considers and resolves the rights claimed in the complaint does the case begin, and the plaintiff can then authorize someone.

Disagreeing with these two viewpoints, another perspective states that the case begins only when the Court takes jurisdiction over the case. At that point, the rights and obligations of the parties involved arise. Prior to the Court's jurisdiction, any authorization is not legally valid in terms of litigation.

In cases where the parties involved do not reach an agreement on the time limit for authorization, and there is no provision in the law, the law establishes a one-year time limit for the authorization to be effective, starting from the date of establishing the authorization. However, the issue arises as to what is considered the "date of establishing the authorization." Specifically, is it the date when both parties sign the authorization document, or is it calculated from the date the competent authority confirms the authorization contract?

In the case of authorization established abroad (due to the involvement of a party residing abroad) and sent to Vietnam, the authorization must go through the legalization process according to regulations to become legally effective. However, if the authorization contract does not specify the time limit, according to Article 563 of the Civil Procedure Code, the time limit in this case is one year, counted from the time the authorizer signs. So, is it counted from the date of legalization? Or is it counted from the date the authorized person signs? Until now, this issue has not been clearly determined. If, in a complex civil case with authorization, the parties involved can rely on this to request the annulment of the judgment if their rights are not guaranteed, it will lead to other issues and prolong the case resolution.

Therefore, in the future, it is necessary to have more detailed guidance on this law to ensure the uniform application of the law and limit the annulment of judgments due to violations related to authorization. Legal experts need to establish specific regulations and provide clear instructions regarding authorization, such as the content of authorization, cases of termination of authorization contracts, time limits for authorization, etc.

TRUONG VU LINH

Source: "Tạp chí Tòa án" (Court Journal)

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