11:30, 10/07/2024
On September 13, 2019, the Supreme People's Court of Vietnam issued Official Dispatch No. 212/TANDTC-PC regarding the announcement of online response results to some issues in adjudication.
Article table of contents
Resolution of 43 Issues
The Supreme People's Court of Vietnam has resolved 43 issues during the handling of Criminal, Administrative, Civil, and Business, Commercial cases. To be specific:
| Criminal |
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1. Issues regarding the crime of high-interest lending in civil transactions (stipulated in Article 201 of the Criminal Code) 1.1. Is the illegal profit used to determine criminal responsibility the total amount of interest collected from lending or the interest collected after deducting the lawful interest as stipulated by the Civil Code? 1.2. Is the illegal profit used to determine criminal responsibility in the case the total interest collected from all borrowers or the interest collected from each borrower? |
| 2. If an individual serving a sentence is newly considered for a reduction in the prison sentence (within 1 year), can they be considered for conditional early release? |
| 3. Does the mitigating circumstance "The offender actively cooperates with authorities in detecting or resolving the crime" equate to the circumstance "The offender sincerely confesses, shows remorse"? |
| 4. According to Clause 2, Article 168 of the Criminal Code, the crime of robbery carries a prison sentence of 07 to 15 years. Can an accused aged 16 to under 18 be sentenced to 04 years in prison? |
| 5. When deciding the sentence, can the court consider the personal circumstances of the accused, such as low educational level, being the main breadwinner, having young children, or having grandparents who are revolutionary veterans, as mitigating circumstances under Clause 2, Article 51 of the Criminal Code? |
| 6. The accused has appealed for a lighter sentence. However, in court, the accused requests both a lighter sentence and a reduction in compensation damages. Does the appellate court consider the request to reduce compensation damages? |
| 7. The accused is required by the first-instance court to return the illegal profit or is subject to additional fines. The accused appeals for a lighter sentence and has paid the illegal profit or fine. Is this considered a new mitigating circumstance in the appellate court? |
| 8. How is liability for damages determined in a criminal case with accomplices? |
| 9. If the female accused becomes pregnant after being prosecuted, does the court apply the circumstantial "The offender is a pregnant woman"? |
| 10. If an individual forges official documents to commit fraud, should they be prosecuted for fraud or for using fake official documents? |
| Civil |
| 11. Does the judge have the authority to gather supplementary evidence during the appellate trial phase? |
| 12. In urgent situations where the petitioner submits a lawsuit and requests a provisional emergency measure at 4:30 PM on a Friday, can the court apply emergency measures over the weekend or on holidays as stipulated in Clause 2, Article 111 and Clause 3, Article 133 of the Civil Procedure Code? |
| 13. During the suspension of the case, if one party requests a provisional emergency measure, can the assigned judge decide on the application of this measure? |
| 14. If an individual files a lawsuit seeking moral damages for harm done to their honor and reputation by actions of the chairman of the district People's Committee, does the court have jurisdiction to handle the case? |
| 15. In cases of failed reconciliation attempts as stipulated in Clause 5, Article 397 of the Civil Procedure Code, and the court issues a decision to suspend the civil matter of mutually agreed divorce, child custody agreement, and property division upon divorce, how are the advance court fees and civil matter resolution fees already paid handled? |
| 16. In a case involving provisional emergency measures, if the first-instance and appellate judgments are annulled by cassation procedures, is the provisional emergency measure decision automatically annulled? If not, how should the first-instance court resolve the case upon re-acceptance? |
| 17. In a case involving property division disputes when the place of residence of the defendant and the location of the disputed property are different, which court has jurisdiction? |
| 18. If stepchildren and stepparents do not live together but maintain visits and financial support for care, is this considered a caregiving relationship sufficient for inheritance rights according to Article 654 of the Civil Code? |
| Administrative |
| 19. How is the deadline for issuing an administrative violation penalty decision determined when clarification of the violation is required? |
| 20. When issuing an administrative violation penalty decision, can the authority base their decision on a supplementary administrative violation report? |
| 21. According to Clause 1, Article 122 of the Law on Administrative Procedures, if the lawsuit petition lacks required content as per Clause 1, Article 118 of this Law, should the judge request the petitioner to amend and supplement their lawsuit petition. If the petitioner amends the lawsuit petition but fails to submit evidence proving their rights and interests were violated, can the court return the lawsuit petition according to Point g, Clause 1, Article 123 of the Law on Administrative Procedures? |
| 22. Article 130 of the Law on Administrative Procedures only specifies the trial preparation period for administrative decisions under points a and b, Clause 2, Article 116 of this Law without stipulating the period for cases under Clause 3, Article 116. How should the court apply the trial period for administrative decisions under Clause 3, Article 116 of the Law on Administrative Procedures? |
| 23. Article 203 of the Land Law: If disagreeing with the second decision on complaint resolution by the Chairman of the Provincial People's Committee or the Minister of Natural Resources and Environment, does the individual, agency, or organization have the right to file a lawsuit at the court? |
| 24. When registering to protect the legal rights and interests of the parties (for lawyers and eligible Vietnamese citizens as per point c, Clause 2, Article 61 of the Law on Administrative Procedures), what documents must the court require these individuals to present? |
| 25. If the court rejects the complainant's request to annul an administrative decision, can the administrative authorities enforce the decision immediately, or must they wait for the first-instance court's enforcement decision to force compliance with the administrative decision? |
| 26. If an administrative decision is disputed and the complaint resolution period expires without resolution, leading the affected party to file a lawsuit against both the administrative decision and the inaction, does the court accept to concurrently review and resolve both complaints? |
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27. According to Section 2 of Civil Section of Official Dispatch 64/TANDTC-PC regarding online query results guidance on disputes over land use rights transfer, transformation, or donation contracts where the competent authority has issued a land use rights certificate to the recipient, the court does not involve the issuing authority in the proceedings and does not need to annul the certificate. Therefore, if the plaintiff only requests the annulment of the land use rights certificate, does the court accept the case? If the first-instance court is hearing a civil dispute over land use rights with a request to annul the certificate, and the plaintiff changes the request to only annul the certificate, how should the court handle this? |
| 28. If a land use rights certificate was issued based on a transfer, transformation, or donation contract, does the court assess the legality of the contract and involve signatories as individuals with related rights and obligations when reviewing the certificate annulment request? |
| Regarding Business, Commerce |
| 29. In a two-member LLC, if member A buys out member B's capital but has not paid the transfer value as agreed, and A subsequently changes the business registration certificate to convert from a two-member LLC to a single-member LLC, is B's lawsuit to cancel the transfer, return the transferred capital, restore company membership, and annul the new business registration certificate a civil dispute or a business, commercial dispute? Which People's Court level has jurisdiction over the first instance? When resolving the case, does the court consider annulling the new business registration certificate? |
| 30. Mr. A and Mrs. B are members of a two-member LLC established in 2016. Mr. A contributed capital with a workshop, which the company received and used for production but had not yet completed the ownership transfer procedure for the workshop associated with land use rights to the company. In 2018, Mr. A transferred his capital to Mrs. C without Mrs. B's knowledge. If Mrs. B sues Mr. A, how should the court determine whether Mr. A's capital contribution to the company is complete, and whether Mrs. C is a member of the two-member LLC? |
| 31. If a member of an LLC or a shareholder of a Joint Stock Company sues the company's director for failing to fulfill obligations, harming the interests of the member/shareholder or the company, based on which legal provisions will the court accept and resolve the dispute? |
| 32. If a loan agreement between Bank A and Company B is executed and funds disbursed at Bank's branch M, without agreement on the forum for dispute resolution being the location of the plaintiff, can Bank A sue Company B for loan dispute resolution at the court of the branch M’s location? |
| 33. If there is a dispute between the insurer and the policyholder over non-life insurance premiums according to the signed insurance contract, is this a civil dispute or a business, commercial dispute? |
| 34. If the policyholder intentionally provides false information to enter into a contract and claims insurance benefits, is this considered a void insurance contract due to fraudulent acts as stipulated in point d, Clause 1, Article 22 of the Insurance Business Law or does the insurer have the right to unilaterally terminate the contract as per point a, Clause 2, Article 19 of the Insurance Business Law? |
| 35. If a request to recognize out-of-court mediation results involving business, commercial disputes is made, should this be treated as a civil or business, commercial request? If it is a business, commercial request, which legislation does the court apply in acceptance and resolution, given that the 2015 Civil Procedure Code views such requests as civil matters (Clause 7, Article 27 of the 2015 Civil Procedure Code). |
| 36. From January 1, 2017, how is the statute of limitations for filing lawsuits regarding insurance contract disputes determined according to the 2000 Insurance Business Law, amended and supplemented in 2010, applied as per the Civil Code or the Insurance Business Law? |
| 37. If a loan agreement involves a two-member LLC where the legal representative signs but the loan file lacks the minutes of the member council meeting, in case of a dispute, should the borrowing party be recognized as the company or the individual representative? In what capacity does the company participate in litigation? |
| 38. If households or cooperatives are registered and granted collective trademarks as per the Intellectual Property Law, how should their participation in litigation be determined when they initiate or are subject to a dispute over the collective trademark? |
See the complete resolution of the 43 issues HERE.
Thanh Lam
- Key word:
- Criminal
- Civil
- Supreme People
- Vietnam
