How to handle a civil dispute where one party is a cooperative providing that the litigant cannot determine the address or cannot find the legal representative of the cooperative?
Article table of contents
Regarding this issue, on April 7, 2017, the Supreme People's Court of Vietnam issued Official Dispatch No. 01/2017/GĐ-TANDTC instructing the People's Courts, military courts at all levels and units under the Supreme People's Court to resolve as follows:
According to Clause 2 Article 97 of the Civil Procedure Code 2015 of Vietnam, the court may collect documents and evidence to determine the operating situation and the legal representative of the cooperative participating in the proceedings, depending on each case as follows:
- In case the cooperative has not been dissolved or declared bankrupt; the cooperative does not fall into the cases specified in Clause 2 Article 42 of the Cooperative Law 2003 and Clause 2 Article 54 of the Cooperative Law 2012 of Vietnam, based on the decision to establish the cooperative and the cooperative's operating charter (if any) to determine the legal representative of the cooperative. If the legal representative of the cooperative dies, the surviving cooperative members (according to the Cooperative Law 2003) or surviving cooperative members (according to the Cooperative Law 2012) have the right to elect or appoint a representative to participate in the proceedings. In case it is not possible to elect or appoint a representative to participate in the proceedings, the Court requires the surviving cooperative members to participate in the proceedings.
- In case the cooperative has been divided or separated: According to Clause 4 Article 52 of the Cooperative Law 2012 of Vietnam, the new cooperative or union of cooperatives shall take joint responsibility for the obligations of the divided or separated cooperative and be the successors to the rights and obligations of the divided or separated cooperative. The legal representative of the new cooperative and cooperative union will participate in proceedings at the Court.
- In case the cooperative is consolidated or merged with other cooperatives or unions of cooperative, the legal representative of the cooperative or union of cooperatives after consolidation or merger will participate in the proceedings.
- In case the cooperative has not been dissolved or declared bankrupt but falls under the circumstances specified in Clause 2 Article 54 of the Cooperative Law 2012 of Vietnam, the People's Committee at the same level as the state agency that issues the cooperative registration certificate must issue a decision to dissolve that cooperative.The Court shall request the People's Committee to resolve according to its authority and based on Point d Clause 1 Article 214 of the Civil Procedure Code 2015 to issue a decision to temporarily suspend the resolution of the case.
- In case the cooperative has had a decision to dissolve, the handling of common assets and capital (called “undivided assets” by the Cooperative Law 2012) of the cooperative is resolved according to Article 36 of the Cooperative Law 2003, Clause 2 Article 48 of the Cooperative Law 2012, Article 21 of Decree No. 193/2013/NĐ-CP of Vietnam’s Government, when the cooperative is dissolved, an undivided portion of common assets is assigned to the local government for management, the representative of the local government (where the cooperative's assets are managed) will inherit the rights and obligations of the cooperative and participate in proceedings at the Court.
- In case the cooperative has a decision to declare bankruptcy, the handling of assets will be carried out in accordance with the provisions of the Bankruptcy Law.
Source: Kiemsat.vn
- Key word:
- Cooperative Law 2012
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