Guidance on the right to apply provisional emergency measures in Vietnam

Guidance on the right to apply provisional emergency measures in Vietnam (Image from the Internet)

Article 2 of Resolution 02/2020/NQ-HDTP (Effective from 01/12/2020) stipulates the application of provisional emergency measures specified in clause 1 Article 111 of the Civil Procedure Code as follows:

1. The involved parties or their lawful representatives or agencies, organizations or individuals instituting the cases defined in Article 187 of this Code may petition the Courts handling such cases to apply one or more provisional emergency measures provided for in Article 114 of the Civil Procedure Code in the following cases:

a) To temporarily settle urgent requests of the involved party directly related to the case which is being settled by the Court which needs to be resolved immediately, if delayed, which will adversely affect the life, health, honor, dignity and property of the involved party;

For example: A inflicted injuries to B. The Court is resolving a claim for damages due to health infringement. B needs money immediately to treat injuries at the hospital, so B asks the Court to apply provisional emergency measures to force A to perform in advance a part of the obligation to make restitution for the damage caused.

b) To take and protect evidence of a case which is being handled or settled by the Court in a case where the involved party obstructs the taking of evidence or the evidence is being destroyed or likely to be destroyed or difficult to take thereafter;

For example: A sues B for a dispute over the boundary of property adjacent to B, A requests the Court to apply a provisional emergency measure in form of prohibiting the change of the current status of the property in dispute and forcing B to maintain the current status of the boundary separating the land, not to be relocated.

c) To preserve the existing state and avoid causing an incurable damage, i.e. preserving the relationship and subject matters directly related to the case being settled by the Court;

For example: In a divorce case, a passbook saving account at the bank is registered under the name of the wife, the husband requests the Court to apply the provisional emergency measure to block the account in the name of the wife to secure the division of the marital property.

d) In order to secure the resolution of the case or judgment enforcement, i.e. to make sure that the grounds for resolving the case are sufficient so that when the court judgments or decisions are enforced, they fully meet the conditions for judgment enforcement.

For example: A is the plaintiff, asking the Court to compel B to pay A VND 1,000,000,000 on loan. In order to secure the judgment enforcement, A asks the Court to apply provisional emergency measures to freeze the property owned by B which is house X worth VND 900,000,000.

2. For cases where provisional emergency measures are applied, during the period of suspension of resolution of the cases, the judges assigned to settle the cases must monitor and consider the change or cancellation of provisional emergency measures already applied when there is one of the grounds specified at Points a. b, c, d, e, f, Clause 1, Article 138 of the Civil Procedure Code.

During the time of suspension of resolution of a case, if the court is requested to apply provisional emergency measures, the judge in charge shall consider applying the provisional emergency measures.

3. The courts shall not apply provisional emergency measures in resolving civil cases specified in the Part 6 of the Civil Procedure Code.

4. In case of considering petitions for recognition and enforcement in Vietnam of civil judgments or decisions of foreign courts, if the petitioners have petitions for application of provisional emergency measures, the people's courts which are settling the cases according to first-instance procedures shall apply Clause 6, Article 438 of the Civil Procedure Code for settlement.

Best Regards!