Who are included in the civil proceeding authorities, proceeding officers in Vietnam?

Who are the civil proceeding authorities, proceeding officers in Vietnam? (Source: Internet)

1. Who are the civil proceeding authorities, proceeding officers in Vietnam?

Pursuant to Article 46 of the Civil Procedure Code 2015 stipulating on procedure-conducting agencies, procedure-conducting persons include:

- The civil proceeding authorities include:

+ The Court;

+ The Procuracy.

- The civil proceeding officers include:

+ The Chief Justices, Judges, People’s Jurors, ombudspersons and Court clerks;

+ The Chairpersons of the Procuracies, the Procurators, the Inspectors.

2. Regulations on the replacement of civil proceeding officers in Vietnam

2.1. Cases where proceeding officers must refuse to conduct the procedures or be replaced in Vietnam

Article 52 of the Civil Procedure Code 2015 stipulates that the proceeding officers must refuse to conduct the procedures or be replaced in the following cases:

- They are concurrently the involved parties, the representatives or relatives of the involved parties;

- They have participated in the proceedings in the capacity as defense counsels of the legitimate rights and interests of involved parties, witnesses, expert-witnesses or interpreters in the same case;

- There are clear grounds to believe that they may not be impartial in performing their tasks.

2.2. Replacement of Judges, People's Assessors in Vietnam

Pursuant to Article 53 of the Civil Procedure Code 2015, Judges and/or People’s Jurors must refuse to conduct the civil procedures or be replaced in the following cases:

- In one of the cases prescribed in Section 2.1;

- They are in the same trial panel and have a close relationship with one another; in this case, only one person is allowed to participate in the civil procedures;

- They participated in first-instance, appellate, cassation or reopening procedures in the resolution of such civil cases and have issued first-instance judgments, appellate judgments/decisions, cassation or reopening decisions, civil matter resolving decisions, decisions to terminate the resolution of civil cases or decisions to recognize the agreement between involved parties; if such persons are members of the Council of Judges of the Supreme People’s Court or Committees of Judges of Collegial People’s Courts, they shall be allowed to participate in the resolution of such cases according to cassation/reopening procedures;

- They have acted as proceeding officers in such cases in the capacity as the ombudsperson, the Court clerk, the prosecutor or the inspector.

2.3. Replacement of court clerks and ombudspersons in Vietnam

Replacement of court clerks and examiners specified in Article 54 of the Civil Procedure Code 2015 as follows:

Court clerks and verifiers must refuse to conduct procedures or be changed in the following cases:

- Belongs to one of the cases in Section 2.1

- They have been procedure-conducting persons in that case as judges, people's jurors, verifiers, court clerks, procurators, and examiners.

- Being a relative of one of the other procedure-conducting persons in that case.

2.4. Replacement of procurators/inspectors in Vietnam

Article 60 of the Civil Procedure Code 2015 provides for the replacement of procurators/inspectors as follows:

Procurators/inspectors must refuse to conduct civil procedures or be replaced in the following cases:

- In one of the cases prescribed in Section 2.1;

- They have acted as proceeding officers in such cases in the capacity as the Judge, People’s Jurors, ombudsperson, the Court clerk, the prosecutor or the inspector.

3. Procedures for refusal or request for replacement of civil proceeding officers in Vietnam

3.1.  Procedures for refusal to conduct the civil proceedings and procedures for request for replacement of Judges, People’s Jurors, Ombudspersons, Court clerks in Vietnam

Article 55 of the Civil Procedure Code 2015 provides for procedures for refusing to conduct proceedings or requesting the Replacement of judges, people's jurors, verifiers, and court clerks.

- The refusal to conduct the civil proceedings and the request for the replacement of the Judges, People’s Jurors, Ombudspersons, Court clerks before the opening of Court sessions/meetings must be made in writing, clearly stating the reason(s) and grounds therefor.

- The refusal to conduct the civil proceedings and the request for the replacement of persons specified in clause 1 of Article 55 of Civil Procedure Code 2015 in Court sessions/meetings must be recorded in the minutes of the meetings.

3.2. Procedures for refusal to conduct the civil proceedings and procedures for request for replacement of the procurators/inspectors in Vietnam

In Article 61 of the Civil Procedure Code 2015, the procedures for refusing to conduct proceedings or requesting to change a procurator or examiner are as follows:

- Before the opening of Court sessions, the refusal to conduct the civil proceedings and the request for the replacement of the procurators must be made in writing, clearly stating the reason(s) and grounds therefor.

The refusal to conduct the civil proceedings and the request for the replacement of the inspectors must be made in writing, clearly stating the reason(s) and grounds therefor.

- At the Court session, the refusal to conduct the procedures or the request for the replacement of the procurators must be recorded in the minutes of the Court sessions.

4. Decide on the replacement of civil proceeding officers in Vietnam

4.1. Decision on the replacement of Judges, People’s Jurors, Ombudspersons and/or Court clerks in Vietnam

Pursuant to Article 56 of the Civil Procedure Code 2015, the decision on the replacement of Judges, People’s Jurors, Ombudspersons and/or Court clerks is as follows:

- Before the opening of Court sessions, the replacement of Judges, People's Jurors, Ombudspersons and/or Court clerks shall be decided by the Chief Justice. If the to be-replaced Judge is the court’s Chief Justice, the competence to decide shall be adjusted as follows:

+ The replacement of Judges being Chief Justice of People’s Courts of districts shall be decided by the Chief Justices of People’s Courts of provinces;

+ The replacement of Judges being Chief Justice of People’s Courts of provinces shall be decided by the Chief Justices of Collegial People’s Courts having territorial competence towards such People’s Courts of provinces;

+ The replacement of Judges being Chief Justice of Collegial People’s Courts shall be decided by the Chief Justices of Supreme People’s Courts.

- In Court sessions, the replacement of Judges, People’s Jurors, Ombudspersons or Court clerks shall be decided by the trial panels after listening to the opinions of the persons requested to be replaced.

The trial panels shall discuss matters in the deliberation rooms and make decisions by majority.

The decision on postponement of the Court session for the replacement of Judges, People’s Jurors, ombudspersons and/or Court clerks shall be decided by the trial panels.

The appointment of other Judges, People’s Jurors, ombudspersons and/or Court clerks as the replacement shall be decided by the courts' Chief Justices.

If the to be-replaced person is the court’s Chief Justice, the competence to decide shall conform to regulations in clause 1 of Article 56 of Civil Procedure Code 2015

- The replacement of Judges and/or Court Clerks when processing the civil matters shall comply with regulations in clause 1 and clause 2 Article 368 of Civil Procedure Code 2015.

- Within 03 working days from the day on which the Court session/meeting is postponed, the court’s Chief Justice shall assign the replacing persons.

4.2. Decision on replacement of procurators or inspector in Vietnam

Decision on replacement of procurators or inspector specified in Article 62 of the Civil Procedure Code 2015 as follows:

- Prior to the opening of Court sessions, the replacement of procurators shall be decided by the chairpersons of the procuracies of the same level;

If the to be-replaced procurators are procuracy chairpersons, their replacement shall be decided by the chairpersons of the immediate superior procuracies.

The replacement of the inspectors shall be decided by the procuracy chairpersons at the same level.

- In Court sessions, the replacement of procurators shall be decided by the trial panels after listening to the opinions of the to be-replaced persons. The trial panels shall discuss matters in the deliberation rooms and make decisions by majority.

The decision on postponement of the Court session for the replacement of procurators shall be decided by the trial panels. The appointment of procurators as the replacement shall be decided by the chairpersons of the procuracies of the same level.

If the to be-replaced procurators are chairpersons of the procuracies, their replacement shall be decided by the chairpersons of the immediate superior procuracies.

- The replacement of procurators when processing the civil matters shall comply with regulations in clause 3 Article 368 of Civil Procedure Code 2015.

- Within 03 working days from the day on which the Court session/meeting is postponed, the procuracy chairperson shall assign the replacing persons and send the Court a written notification

Ngoc Nhi

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