How the court will adjudicate in the defendant’s absence is specified in the Civil Procedure Code 2015. In fact, there may be intentional or multiple reasons for the defendant to not appear at the court hearing even though duly summoned by the Court. So “Can the defendant be absent from the court under Vietnam law” Let’s find out with LSX in the article below.
Legal grounds
- Civil Procedure Code 2015.
What rights and obligations does the defendant have?
Article 72 of the 2015 Civil Procedure Code also stipulates that the defendant has the following rights and obligations:
Article 72. Rights and obligations of the defendants
1. The involved parties’ rights and obligations prescribed in Article 70 of this Code.
2. To be notified by Courts of the lawsuits against them.
3. To agree or disagree with part or whole of the claims of the plaintiff, persons with related interests and/or obligations who have independent claims.
4. To make counter-claims against the plaintiffs if they are related to the plaintiffs’ claims or set off the obligations claimed by the plaintiffs. For counter-claims, the defendants shall have the plaintiffs’ rights and obligations prescribed in Article 71 of this Code.
5. To make independent claims for persons with relevant interests and/or obligations and such claims shall relevant to the lawsuit settlement. For independent claims, the defendants shall have the plaintiffs’ rights and obligations prescribed in Article 71 of this Code.
6. If the counter-claims or the independent claims are not accepted by the Court to be resolved in the same case, the defendant may initiate another lawsuit.
Can the defendant be absent from the court under Vietnam law?
Article 227. Presence of involved parties, their representatives and defense counsels of legitimate rights and interests
1. For the first time duly summoned by the Court, involved parties or their representatives and defense counsels of their legitimate rights and interests must be present at the Court session; if any of them is absent, the trial panel shall postpone the Court session, unless such person requests for trial in his/her absence.
The Courts must notify the involved parties, their representatives and defense counsels of legitimate rights and interests of the postponement of the Court session.
2. For the second time duly summoned by the Court, involved parties or their representatives and defense counsels of their legitimate rights and interests must be present at the Court session, unless they request for trials in their absence; if any of them is absent due to a force majeure event or an objective obstacle, the Court may postpone the Court session, otherwise the Court shall handle as follows:
a) If the plaintiff is absent and his/her representative does not participate in the Court session, such plaintiff shall be considered giving up the lawsuit initiation, thus the Court shall issue a decision to terminate the case resolution for his/her request for lawsuit initiation, unless such plaintiff requests for trials in their absence. The plaintiff may re-initiate lawsuits according to law provisions;
b) If the defendant without counter-claims or a person with relevant interests and duties without independent claims is absent and his/her representative does not participate in the Court session neither, then the Court shall direct the trial according to absence-trial procedure;
c) If the defendant has counter-claims but is absent and his/her representative does not participate in the Court session, such defendant shall be considered giving up the counter claims, thus the Court shall issue a decision to terminate the resolution for his/her counter claims, unless such defendant requests for trial in his/her absence. The defendant may re-initiate lawsuits for his/her counter-claims according to law provisions;
d) If the person with relevant interests and duties has independent claims but is absent and his/her representative does not participate in the Court session, such person shall be considered giving up the independent claims, thus the Court shall issue a decision to terminate the resolution for his/her independent claims, unless such person requests for trial in his/her absence. Such person may re-initiate lawsuits for his/her independent claims according to law provisions;
đ) If the defense counsels of legitimate rights and interests of the involved parties are absent, the Court shall direct the trial according to absence-trial procedures.
Thus, if the defendant is summoned for a second time without being present, without a legitimate reason as prescribed above, the Court can still proceed with the trial in accordance with regulations.
Explanation about the legal provisions on the defendant’s presence at court
Regarding the presence of the defendant in particular and of the litigants in general at the court hearing, Article 227 of the Civil Procedure Code 2015 (CPC 2015) stipulates that, upon the first valid summons:
– The involved parties or their representatives, the defense counsels of their legitimate rights and interests must be present at the court hearings;
– If someone is absent, the trial panel must postpone the court session;
– If there is an application for trial in his/her absence, the trial will still be held.
When the Court properly summons for the second time, the involved parties or their representatives and defense counsels of their legitimate rights and interests must be present at the court hearing, unless they have written a petition to the Court to consider the matter of absenteeism.
How is right of the defendant to counter-claim?
The defendant has the right to make a counter-claim under Article 200 of the Civil Procedure Code 2015. Specifically as follows:
Article 200. Defendants’ right to make counter-claims
1. Together with their obligation to submit to Courts their written opinions on the plaintiffs’ claims, the defendants are entitled to file counter-claims against the plaintiffs or persons with relevant interests and duties who have made independent claims.
2. The defendants’ counter-claims against the plaintiffs and/or persons with relevant interests and duties shall be accepted in one of the following cases:
a) The counter-claims are made to clear liability against the plaintiffs’ claims and/or persons with relevant interests and duties with independent claims;
b) The accepted counter-claims may exclude the partial or full acceptance of the plaintiffs’ claims and/or persons with relevant interests and duties who have made independent claims;
c) There is an interrelation between the counter-claim and the claim of the plaintiff/person with relevant interests and duties, and if these claims are settled in the same case, the resolution of such claims in the same case shall be more accurate and quicker.
3. Defendants are entitled to make counter-claims before the opening of the meetings for checking the handover of, access to and disclosure of evidences and mediating.
The defendant has the right to make a counter-claim before opening the meeting to check the handover, access and disclosure of evidence and conciliation.
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Frequently asked questions
According to Article 273 of the Civil Procedure Code 2015, the defendant was tried in absentia but they still have the right to appeal. The time limit for appealing against the judgment of the first-instance court is 15 days from the date of pronouncement; for litigants who are not present at the court hearing, the time limit for appeal (15 days) will be counted from the date the judgment is delivered to them or posted.
According to the current law, there is no provision that allows the defendant to record audio or video himself at the court hearing. Regarding the recording of developments at the court hearing, Article 211 of the Civil Procedure Code stipulates as follows: all developments in the court hearing from the beginning to the end of the trial shall be recorded into the Court’s minutes. You, as a participant in the proceedings, have the right to see the minutes of the court session right after the end of the court session, to request amendments and supplements to the minutes of the court session and to sign for certification.
Pursuant to Clause 1, Article 233 of the 2015 Civil Code, the Trial Panel is forced to postpone the court session or has the right to decide to postpone the court hearing depending on the following grounds:
• One of the procedure-conducting persons is requested to be changed, has grounds to change but has no immediate replacement;
• The involved parties are duly summoned by the Court for the first time, but they and their representatives are not present at the court hearing and do not have an application for trial in their absence;
• The interpreter is absent without a substitute;
• The involved parties are duly summoned by the Court for the second time, they and their representatives are not present at the court hearing, do not have an application for trial in their absence but have a valid reason;
• Witnesses and experts are absent from the court hearing.
Covid-19 can be considered as an objective obstacle (good reason), as a basis for the defendant to request the Court to postpone the trial.
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