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The Supreme People's Court of Vietnam: Benchbook Online

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Benchbook Online - Table of Contents
	INTRODUCTION
	INTRODUCTION PREFACE TO THE BENCHBOOK BY AUSTRALIAN AMBASSADOR
	ACKNOWLEDGEMENTS
	BENCHBOOK CONTRIBUTORS
	USING, UPDATING AND COMMENTING ON THE BENCHBOOK
	LIST OF ABBREVIATIONS

	PART ONE - PEOPLE’S COURTS, JUDGES AND ASSESSORS OF THE PEOPLE’S COURTS
		1. Position, role, functions and duties of the People's Courts
			1.1. System of the People’s Courts
				1.1.1. Supreme People’s Court
				1.1.2. People’s Courts of provinces and cities directly under central authority
				1.1.3. People’s Courts of districts, prefectures, towns or cities under the provinces
				1.1.4. Military Tribunals
			1.2. Position and role of the People’s Courts in the State apparatus
			1.3. Functions and duties of the People’s Courts
			1.4. Basic principles in judicial activities of the People’s Courts
				1.4.1. General basic principles in judicial activities with respect to types of case
				1.4.2. Specific basic principles in criminal, civil and administrative proceedings
		2. Judges of the people’s courts
			2.1. Criteria for Judges
				2.1.1. General criteria for Judges
				2.1.2. Specific criteria for Judges of the People’s Courts and Military Tribunals of different levels
			2.2. Appointment, resignation and removal of Judges
				2.2.1. Appointment of Judges
				2.2.2. Resignation and removal of Judges
			2.3. Duties, powers and responsibilities of Judges
				2.3.1. General duties and powers of Judges
				2.3.2. Specific duties and powers of Judges
				2.3.3. Responsibilities of Judges
		3. Assessors of the People’s Courts
			3.1 Criteria for Assessors of the People’s Courts
				3.1.1. General criteria for Assessors of the People’s Courts
				3.1.2. Specific criteria for Assessors of the People’s Courts and Military Courts of different levels
			3.2 Appointment and removal of Assessors of the People’s Courts
				3.2.1. Appointment of Assessors of the People’s Courts
				3.2.2. Resignation and removal of Assessors of the People’s Courts
			3.3. Duties, powers and responsibilities of Assessors of the People’s Courts
		4. Requirements for Judges and Assessors of the People’s Courts and Procurators in conducting their duties
			4.1. Judges and Assessors of the People’s Courts must be humane, righteous, knowledgeable, courageous and transparent
			4.2. Judges and Assessors of the People’s Courts must ensure objectivity and honesty in conducting their duties
			4.3. Judges and Assessors of the People’s Courts must ensure principles of impartiality and legal compliance in conducting their duties
		5. Guaranteeing the independence of the judiciary of Judges
			5.1. Being independent and obeying only the law
			5.2. Ensuring principles of judicial independence in Beijing Statement

	PART TWO - HEARING OF CRIMINAL CASES
		1. Hearing of first instance
			1.1. Receiving and accepting a case file
			1.2. Preparing for hearing of first instance
				1.2.1. The Judge should determine jurisdiction to hear the case
				1.2.2. The Judge should determine time limit of preparation for hearing
				1.2.3. The Judge should consider application, alteration or rescission of deterrent measures
				1.2.4. The Judge should study the case file
				1.2.5. The Judge should issue a decision.
				1.2.6. The Judge should summon relevant persons to court for interrogation.
				1.2.7. The Judge should require relevant divisions to serve the Court’s decisions
				1.2.8. The Judge shall check the preparation for opening the trial of first instance of the case.
			1.3. Trial of first instance
				1.3.1. The Judge should understand and follow general provisions on the proceedings at the trial.
				1.3.2. Procedure for commencement of the trial
				1.3.3. Procedure for interrogation at the trial
				1.3.4. Oral argument at the trial
				1.3.5. Deliberation and pronouncement of judgments
				1.3.6. Post-trial tasks
		2. Applelate hearing
			2.1. The Judge should consider the legality of appeals and protests
			2.2. Preparing for appellate hearing.
				2.2.1. The Judge should determine scope of appellate hearing.
				2.2.2. The Judge should determine time limit of preparation for hearing
				2.2.3. The Judge should consider application, alteration or rescission of deterrent measures
				2.2.4. The Judge should transfer the case file to the Procuracy of the same level as the Court of Appeal
				2.2.5. Composition of an Appellate Trial Panel.
				2.2.6. The Judge should study the case file
				2.2.7. The Judge should require the functional division to serve the Court’s decisions.
				2.2.8. The Judge should summon persons necessary for interrogation to trial.
				2.2.9. The Judge should prepare for issuing decisions on arrest and detention of the accused after pronouncement of the judgment
			2.3. Appellate trial
				2.3.1. General provisions on procedures of an appellate trial.
				2.3.2. Procedure for commencement of the trial
				2.3.3. Procedure for interrogation at the trial
				2.3.4. Oral argument at the trial; deliberation and pronouncement of judgments; post-trial tasks.
		3. Review of legally enforceable judgments or decisions
			3.1. Review of legally enforceable judgments or decisions under the cassation procedure
				3.1.1. The Judge should determine the grounds for an appeal under the cassation procedure and the nature of cassation review
				3.1.2. Detecting legally enforceable judgments or decisions which need to be reviewed under the cassation procedure
				3.1.3. The Judge shall determine the right to protest under the cassation
				3.1.4. The Judge shall determine jurisdiction of cassation review
				3.1.5. Cassation review hearing
				3.1.6. Post-trial tasks
			3.2. Review of legally enforceable judgments or decisions under the retrial procedure
				3.2.1. The Judge shall determine the grounds for a protest under the retrial procedure and the nature of retrial
				3.2.2. Notification and verification of fresh evidence
				3.2.3. Determination of the right to protest under the trial procedure
				3.2.4. The Judge shall determine jurisdiction of retrial
				3.2.5. Conducting a retrial
				3.2.6. Post-trial tasks
		4. Hearing of juvenilr offenders
			4.1. Procedure for hearing juvenile offenders
				4.1.1. The Judge shall determine which laws apply to a juvenile offender
				4.1.2. The Judge shall determine the correct age of a juvenile offender
				4.1.3. Arrest, custody and detention of a juvenile offender
				4.1.4. The Court should ensure legal assistance for the juvenile offender
				4.1.5. Hearing a juvenile offender
			4.2. Directivess on dealing with juvenile offenders
			4.3. Decision on penalty imposed on juvenile offenders
		5. Hearing criminal cases relating to women
			5.1. Hearing criminal cases having a female accused
				5.1.1. Ensuring right to have an equal footing before laws
				5.1.2. Ensuring general proceedings and specific characteristics of a female accused
				5.1.3. The Judge must understand and implement well the provisions of the CrPC and Penal Code on orientations in dealing with a female accused
			5.2. Hearing criminal cases in which the victim is a women
				5.2.1. Ensuring proper implementation of general proceedings and specific characteristics of the female victim
				5.2.2. The Judge must understand and correctly apply provisions of the Penal Code when victims are female
		6. Sentencing
			6.1. Grounds for sentencing
				6.1.1. The Judge should apply the provisions of the Penal Code
				6.1.2. The Judge should consider nature and extent of danger caused to Society by offences
				6.1.3. The Judge should consider the personal status of offenders
				6.1.4. The Judge should consider facts of extenuation and aggravation of criminal liability
			6.2. The Judge should identify aggravating and mitigating elements
				6.2.1. The Judge should identify mitigating elements
				6.2.2. The Judge should determine aggravating elements
		7. Issues in relation to remission of sentence and exemption from serving sentence
			7.1. Determine jurisdiction with respect to a decision on such extenuation or remission
			7.2. File of application for extenuation of term of penalty or remission of penalty serving
			7.3. Conditions of remission of sentence and exemption from serving sentence
			7.4. Procedure for considering remission of sentence or exemption from serving sentence
		8. Hearing of robbery offence
			8.1. The Judge should study thoroughly the “Robbery Offence” as provided in Article 133 of the Penal Code
				8.1.1. The Judge should determine whether the offender uses violence or the threat of immediate violence or otherwise acts to cause the victim not to resist to take the victim’s property
				8.1.2. The Judge should distinguish the “Robbery Offence” from other offences relating to illegal appropriation of property
				8.1.3. The Judge should determine the age for being subject to criminal liability in respect of the “Robbery Offence”
				8.1.4. The Judge should determine a number of facts that aggravate the penalty

	PART THREE - RESOLUTION OF CIVIL LAWSUITS
		A. Procedure for resolving civil cases
			1. Procedure for resolving civil cases at court of first instance
				1.1. Receiving the petition initiating a legal action and accepting the civil case
				1.2. Preparing for hearing
					1.2.1. The Judge should collect evidence.
					1.2.2. The Judge should conduct conciliation and recognize the agreement of litigants
					1.2.3. The Judge should apply provisional measures
					1.2.4. The Judge should study and assess evidence
					1.2.5. Decisions in the preparation for hearing
					1.2.6. The Judge should temporarily suspend the resolution of the case
					1.2.7. The Judge should suspend the resolution of the case
					1.2.8. The Judge should decide to hear the case
				1.3. Trial of first instance
					1.3.1. Procedure for commencement of the trial
					1.3.2. Procedure for interrogation at the trial
					1.3.3. The Judge should ask whether the litigants have any request
					1.3.4. The Judge should listen to the presentation of the litigants
					1.3.5. The Judge should question each litigant about each issue
					1.3.6. Oral argument at the trial
					1.3.7. Deliberation of judgments
					1.3.8. Post-trial tasks
			2. Procedure for resolving civil cases
				2.1. The Judge should consider the legality of appeals and protests
				2.2. The Judge should prepare for appellate hearing
					2.2.1. The Judge should accept and deal with the case file for appellate hearing
					2.2.2. The Judge should consider issuing proceeding decisions during preparation for appellate hearing
				2.3. The Judge should consider the change, addition, or withdrawal of the appeal or protest, or where the plaintiff withdraws their petition for initiation of a legal action prior to the commencement of or during the appellate trial
				2.4. The Judge should summon participants in the proceedings
				2.5. Appellate trial and proceeding decisions.
				2.6. The Judge should consider whether the appellate trial shall be adjourned or continued.
				2.7. The Judge shall recognize the agreement of the parties at the appellate trial
				2.8. Order of presentation and oral argument at the appellate trial
				2.9. Rendering of the appellate judgment and decisions
				2.10. Appellate procedure with respect to a decision of the Court of first instance
			3. Procedure for review of legally enforceable judgments or decisions
				3.1. Procedure for the cassation review
					3.1.1. Nature of the cassation review
					3.1.2. Protest on the basis of judicial review
					3.1.3. Preparation for a trial of cassation review
					3.1.4. Procedure for a trial of cassation review
					3.1.5. Scope of cassation review
					3.1.6. Jurisdiction of the Judicial Review Panel
				3.2. Procedure for retrial
					3.2.1. Nature of retrial
					3.2.2. Protest on the basis of retrial
					3.2.3. Preparation and procedure for a retrial; scope of retrial
					3.2.4. Jurisdiction of the Retrial Panel
		B. PROCEDURE FOR RESOLVING CIVIL MATTERS
			1. Civil matters subject to jurisdiction of courts
				1.1. The Judge should determine civil requests
				1.2. The Judge should determine requests on marriage and family
				1.3. Requests on business and commerce
				1.4. Requests on labour
			2. General provisions on procedure for resolving civil matters
				2.1. Applicable laws
				2.2. Acceptance of civil matters
					2.2.1. Petitions
					2.2.2. The Judge must determine time limit for the request
					2.2.3. Jurisdiction to resolve a civil matter
				2.3. Preparation for considering the petition
				2.4. Participants in the meeting to resolve a civil matter
					2.4.1. Persons who resolve the civil matter
					2.4.2. Participation of representative of the Procuracy
					2.4.3. Presence of participants in the proceedings
				2.5. Procedure for conducting the meeting
				2.6. Appeal, protest, appellate procedure for civil matters
			3. Procedure for resolving a number of civil matters
				3.1. Procedure for resolving a request to declare a person as without capacity to perform civil actions or having limited capacity to perform civil actions
				3.2. Procedure for resolving a request to announce the search for a person that is absent from their residential place
				3.3. Procedure for resolving a request to declare a person missing
				3.4. Procedure for resolving a request to declare a person dead
		C. RESOLVING A NUMBER OF SPECIFIC CIVIL CASES
			1. Resolving a civil case of disputes over a contract for a loan
				1.1. Determining Time Limits
				1.2. Resolving a number of types of contracts for a loan
					1.2.1. Contracts for an interest-free loan
					1.2.2. Contracts for a loan with interest.
					1.2.3. Contracts for a loan offered by a bank or credit institution
					1.2.4. Contract for a loan with interest but without a fixed interest rate
					1.2.5. Dealing with mortgaged property
			2. Resolving a dispute over compensation for non-contractual damages
				2.1. Notes in respect of proceedings:
				2.2. Conditions where liability arises for compensation for non-contractual damages
				2.3. A number of principles
					2.3.1. Principles of compensation for damages
					2.3.2. Burden of proof of litigants in cases requesting compensation for damage
				2.4. Determining damages.
					2.4.1. Determining damage caused by harm to health.
					2.4.2. List of compensation amounts for damage caused by harm to health
					2.4.3. Determining damage resulting from loss of life
					2.4.4. Determining damage caused by harm to honour, dignity or reputation
				2.5. Compensation for damage in specific cases
					2.5.1. Compensation for damage caused by sources of extreme danger
					2.5.2. A number of cases already stipulated by the Civil Code
			3. Resolving civil cases on inheritance disputes
				3.1. To accept and notify of accepting the cases
					3.1.1. Immediately after receiving the dossier of the case, judge must check time-limits for initiation of a legal action
					3.1.2. Judges must check the jurisdiction for resolving the cases
					3.1.3. Judges must check other conditions for the acceptance of the inheritance cases
					3.1.4. Notification of acceptance of a case
				3.2. Collecting evidence
				3.3. Noted issues in inheritance cases
					3.3.1. Defining the legitimacy of the will
					3.3.2. Defining the heritance
					3.3.3. Provisions on part of a will be legally ineffective
					3.3.4. Some provisions on restriction of inheritance right
					3.3.5. Inherit in case having no marriage registration
			4. Resolving civil cases on dispute of house purchasing contract
				4.1. Common issues on procedures and law application
					4.1.1. On juricdiction
					4.1.2. Some instances on limitation of resolution
					4.1.3. Prescription
					4.1.4. Application of laws respective to the time of transaction
				4.2. Basic steps and some notes in resolving disputes on housing purchase contracts
					4.2.1. Determining validity of a contract
					4.2.2. Resolving disputes related to a valid housing purchase contract
					4.2.3. Identifying breaches of valid contracts and resolving such breaches
					4.2.4. Resolving an invalid housing purchase contract
					4.2.5. Resolving deposits in housing purchase contracts
			5. Resolving divorce cases
				5.1. Accepting the case and notifying of such acceptance
					5.1.1. Jurisdiction to resolve the case
					5.1.2. Conditions for accepting the case
					5.1.3. Notifying of acceptance of the case
				5.2. Gathering evidence
				5.3. Conciliation and preparation for hearing.
				5.4. Notes in resolving a divorce case
					5.4.1. Determining nature of marital relation
					5.4.2. Defining seperate property of husband, wife
					5.4.3. Division of house and land upon divorce
					5.4.4. Raising the children when divorcing
			6. Settlement of business, commercial disputrs
				6.1. Determination of the jurisdiction of the Court
				6.2. Instruction some Laws applicable in settlement of business and commercial disputes
					6.2.1. Settlement of commercial disputes
					6.2.2. Settlement of disputes in transportation of goods, passengers by railway, by road and inland waterway
					6.2.3. Settlement of disputes in transportation of goods, passengers by airway and seaway
					6.2.4. Settlement of disputes in investment, finance and banking
					6.2.5. Settlement of disputes in dealing shares, bonds and other valuable instruments
					6.2.6. Settlement of disputes in insurance
					6.2.7. Settlement of disputes in construction
			7. Resolving disputes on intellectual property right and technology transfer
				7.1. General provisions on application of laws
				7.2. Jurisdiction of People’s Courts
					7.2.1. Disputes under jurisdiction of the People’s Courts
					7.2.2. Jurisdiction of Courts of different levels
					7.2.3. The Judge should distinguish types of cases
				7.3. Notes in resolving a dispute on copyright
				7.4. Notes in resolving a case related to industrial property right
				7.5. Notes in resolving a case related to technology transfer
			8. Resolving labour disputes
				8.1. Individual labour disputes:
					8.1.1. Acceptance of Jurisdiction by the Court
					8.1.2. Preperation for trial.
					8.1.3. Some matters need to pay attention when resolving individual labour disputes
					8.1.4. Common labour cases
				8.2. Collective labour disputes
					8.2.1. Jurisdiction and procedure of resolving collective labour disputes
					8.2.2. Some matters need to pay attention when resolving collective labour disputes

	PART FOUR - RESOLVING ADMINISTRATIVE CASES
		1. Receiving a petition and its attached documents and evidence
			1.1. Receiving a petition
			1.2. Receiving attached documents and evidence
		2. Accepting the case
			2.1. Considering the petition and attached documents and evidence
			2.2. Accepting the case
				2.2.1. Accepting the case where the petitioner is exempt from advance payment of court fees
				2.2.2. Accepting the case where the petitioner has to make advance payment of court fees
		3. Preparing for hearing
			3.1. Notifying of acceptance of the case
			3.2. Verifying and collecting evidence
				3.2.1. Method for verifying and collecting evidence
				3.2.2. The Court shall verify and collect evidence
			3.3. Determining time limit for preparation for hearing
			3.4. Applying provisional measures
			3.5. Issuing a decision within time limit for preparation for hearing
				3.5.1. Bringing the case to trial
				3.5.2. Temporarily suspending resolution of the case
				3.5.3. Suspending resolution of the case
				3.5.4. Sending decisions
			3.6. Determining characteristics in resolving an administrative case
			3.7. Considering whether the petitioner of an administrative case, at the same time, requests any compensation for damage or not
		4. Trial of first instance
			4.1. Determining persons who are obliged to be present at the trial of first instance
			4.2. Deciding to continue the trial in the absence or presence of persons participating in the proceedings
			4.3. Procedure for questioning at the trial
			4.4. Oral argument at the trial
			4.5. Deliberation and pronouncement of the judgment
			4.6. Post-trial tasks
		5. Appellate procedure
			5.1. Preparation for appellate hearing
			5.2. Procedures for an appellate trial
				5.2.1. Opening the appellate trial
				5.2.2. Procedure for commencement of the trial
				5.2.3. Questioning at the trial.
				5.2.4. Oral argument
				5.2.5. Deliberation and pronouncement of the judgment
				5.2.6. Appellate judgment
				5.2.7. Jurisdiction of the Appellate Trial Panel
				5.2.8. Post-trial tasks

	PART FIVE - BANKRUPTCY PROCEDURES
		1. Receiving a petition to commence bankruptcy procedures
		2. Determining jurisdiction to resolve a petition to commence benkruptcy procedures
		3. Checking status of the petitioner
		4. Checking the petition for commencement of bankruptcy procedures and attached documents
		5. Determining whether an enterprise or cooperative has become insolvent or not
		6. Determining scope of application of bankruptcy law
		7. Determining bankruptcy fees
		8. Returing the petitio for commmencement of bankruptcy procedures.
		9. Accepting the petition for commencement of bankruptcy procedures
		10. Declaring the enterprise or cooperative bankrupt under special circumstances.
		11. Considering the decision on commencing or not commencing bankruptcy procedures
		12. Notifying of the decision to commence bankruptcy procedures
		13. Establishing asset management and liquidation team
		14. Applying measures for preservation of assets owned by the enterprise or cooperative which has been inslovent
		15. Dealing with debts.
		16. Convening and presiding at the meeting of creditors
		17. Considering application of procedures for recovery of business operations
		18. Considering application of procedures for liquidation of assets
		19. Declaring the enterprise or cooperative bankrupt
		20. Relation between the court and procuracy during conducting bankruptcy procedures
		21. Resolving complaints and protests
		22. Enforcing the decision to declare the enterprise or cooperative bankrupt


Appendix - Legal references


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