Date: 29 May 2021
Writer: Truc Nguyen & Quang Nguyen
Our clients have often concerned how many percent of winning possibility our lawyers can support for their litigation case in Vietnam. Frankly, it is hard to confirm about this matter. There are some main reasons as follows:
1. Complex procedure for considering and settling a litigation case
Per Vietnamese law, there are 2 procedures that a case may undergo, including first-instance procedure and appellate trial procedure. In which:
(i) First-instance trial
The first-instance trial is the commencement stage of a lawsuit. Competent court shall review the case’s whole contents through the submitted documents of the plaintiff and defendant at the trial.
To start this trial, the plaintiff must send a petition request in writing to the competent People’s Court in Vietnam (the “Court”). Additionally, the plaintiff is responsible for collecting and submitting evidence supporting for his claim.
If the case is regarding debt collection, determining overdue payment interest, fine for breaching contract and compensation is also a notable issue.
Within the next 8 working days, the Court will consider and issue an official result on whether accepting or returning the submitted request and other documents.
Once the Court accepted to handle the petition, the defendant will officially involve in the litigation case. The Court will notify to the defendant about the case. This authority also requires a written document presenting his opinion on the issues mentioned in the plaintiff’s claim and his own claim against the plaintiff (if any). The defendant can also make counter-claim over the plaintiff’s claim.
The Court will hold mediation meeting(s) not later than 6 months from the acceptance date. In a mediation meeting, the plaintiff and the defendant can discuss and agree to resolve their dispute under the Court’s witness. Both parties could additionally provide evidence and relevant documents supporting their opinion against the other. As the mediation meeting is compulsory, one party could delay the first-instance procedure by not attending this meeting with a proper reason.
If both parties fail to reach an agreement in mediation meeting(s), the Court will recognize such failure. Then, the Court will issue a decision on bringing the case into hearing within the next 02 months. According to assessment over provided documents and each party’s explanation at the trial, the Court will issue a judgement on settling the case.
Of note, during the first-instance procedure, the Court could consider and apply special decision(s). They are application of an injunctive relief, summoning witness(es)/ translator(s), requesting appraisal, collecting and protecting evidence, delivering documents to overseas, etc. Such decision(s) can affect result of the case as well.
(ii) Appellate procedure
In an appellate procedure, the Court just considers the issues that a party make appeal. Such issues could be either parts or the whole of the released first-instance judgement. The appellate-level Court may issue one of the following results:
- remaining the validity of the first-instance judgement;
- directly amending the first-instance judgement;
- repealing a part or the whole of the first-instance judgement and request to re-hold the first-instance trial;
- canceling the case settlement or appellation; or
- suspending the case settlement.
When the appellate-level Court issues a judgement on requesting to re-hold the first-instance procedure, both plaintiff and defendant will engage in the first-instance trial again.
Besides the above, when the first-instance judgment or appellate judgment takes effect (“Effective Judgement”), it could not be re-judged. The upper Court will review Effective Judgement by the under another procedure named cassation and/ or reopening.
In a cassation, the Court will review the case due to the findings of mistakes in issuing the Effective Judgement or violations in proceeding the court, which are not complied with the laws.
Otherwise, if there are new important information and/ or proofs of the resolved case, the Court will decide on the reopening procedure. However, new finds for a reopening must affect the conclusion in the Effective Judgement.
2. Difficulties to the parties involving in the litigation case
Per our experience, there are some difficulties as follows:
- First, when filing the case to the Court, the plaintiff must provide documents of the defendant. They could be the copy of identity paper (if individual) or certificate on establishment (if company or organization). However, these documents belong to the defendant and the plaintiff is hard to collect them from the defendant for the purpose of filing a lawsuit against him.
- Second, there are different on understanding and applying regulations of law of judges of Courts though there are some guidance in law application issued by the Supreme People’s Court.
- Third, cassation and reopening are special adjudicating procedures, which do not constitute a third adjudication level. So, the case will be re-judged under first-instance and/ or appellate trial.
- Forth, the plaintiff or defendant are not able to request a Court to proceed the cassation and/ or reopening. Only the persons who are conferred the competence to request have the right to ask the Courts operating a cassation and/ or reopening. They include:
- President of the Supreme People’s Court or the Senior People’s Courts; or
- Chairman of the Supreme People’s Procuracy or the Senior People’s Procuracies.
3. Hard to enforce an effective judgement in a litigation case
The most important issue to the party who wins the case is that the Effective Judgement could not be implemented in practice due to the following reasons:
- When the Courts’ judgements are valid, the losing party shall firstly perform its obligations totally based on its willingness. Therefore, they will not voluntarily follow the requested actions, such as debt repayment, violation cancellation, etc.; or
- Another difficulty is the losing party has no asset to do obligations to the wining party. If the losing party intends to delay an obligation, the winning one can ask for the support in judgement enforcement from local Civil Judgment Enforcement Agency. In fact, this measurement is not effective because the ratio of debt payment is recorded usually under 50% of the total case.
Although there are several hard things to support a litigation case, our lawyers often discuss with clients. The purpose is to have a strategy on that case based on our experience. Helping clients foresee those things and have a plan are our duty.
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