With the development of international integration, international judicial relations become more and more vibrant and develop strongly. Against that background, the Civil Procedure Code has dedicated Chapters XXXVI and XXXVII to provisions on international judicial matters in civil proceedings, in which, notably, regulations on procedures for settling cases civil affairs with foreign elements. So about the matter “Procedures for civil cases with foreign elements in Vietnam” Let’s find out with LSX in the article below.
Legal grounds
- Civil Code 2015
- Civil Procedure Code 2015
What is a civil case involving foreign elements?
The concept of civil cases with foreign elements has been explained in many legal scientific documents and is considered as an interesting topic of interest to many scholars. From a legal perspective, civil cases involving foreign elements are explained in Clause 2, Article 464 of the Civil Procedure Code, specifically:
A civil case involving a foreign element is a civil case in one of the following cases:
– At least one of the participating parties is a foreign individual, agency or organization.
The participating parties are all Vietnamese citizens, agencies and organizations, but the establishment, change, implementation or termination of such relationship occurs in a foreign country.
The parties involved are Vietnamese citizens, agencies or organizations, but the subjects of such civil relations are abroad.
Thus, a civil case with foreign elements is a resonance of two factors, first of all it must be a pure civil case (that is, disputes, business and commercial requirements, civil, labor, marriage and family matters shall be accepted and settled by the Courts according to legal submissions and procedures); Second, there must be “foreign elements”, foreign factors are considered from three angles: subject, object, and object of civil relations, which only needs to satisfy one of the three cases considered to have “foreign elements”.
Procedures for civil cases with foreign elements in Vietnam
Procedures for settling civil cases involving foreign elements as provided for in the Civil Procedure Code are not regulated to focus on a particular law and what the author provides below is a summary from regulations. In general, if the jurisdiction belongs to the Vietnamese courts, the procedure for settling the civil case is carried out like a civil case, an ordinary civil matter, however, due to foreign factors In addition, the civil case settlement procedure will have other arising points as follows:
Legal status in civil procedure of foreigners, foreign agencies and organizations, branches and representative offices in Vietnam of foreign agencies, organizations and international organizations, representative agencies of international organizations in Vietnam, foreign State.
Legal status in civil procedure is understood as the total civil procedural legal capacity, civil procedural act capacity, and rights that foreigners, foreign agencies and organizations, and international organizations have international organizations’ rights and obligations, and the obligations they have to bear when participating in legal proceedings in Vietnam.
In terms of legal status, the content of civil procedural legal capacity and civil procedural act capacity is the central content, in which subject capacity is considered between individuals and agencies and organizations. However, the author will only focus on the subject capacity of foreigners as a specific example:
For a foreigner, foreign agencies and organizations participating in civil procedures in Vietnam will have at least two governing legal systems. That is the Vietnamese legal system (where the proceedings are conducted) and the legal system of the country where they have their nationality/place of establishment or where they reside. The determination of legal capacity and civil procedure act capacity of foreigners, foreign agencies and organizations is an important content in determining the civil legal status of foreign individuals.
Clause 1, Article 466 of the Civil Procedure Code provides as follows:
a) Under the law of the country of which he/she is a citizen. For a stateless foreigner, his/ her civil-procedure legal capacity and civil-procedure act capacity shall be determined under the law of the country where he/she resides. For a stateless foreigner residing in Vietnam, his /her civil-procedure legal capacity and civil- procedure act capacity shall be determined under Vietnamese law;
b) If the foreigner has different foreign citizenships, his /her civil procedure legal capacity and civil-procedure act capacity shall be determined under the law of the one of the countries of which he/she is a citizens and where he/she resides.
For a foreigner who has different citizenships and resides in a country of which he/she is not a citizen, his/her civil-procedure legal capacity and civil-procedure act capacity shall be determined under the law of the country of which he/she is a citizen for the longest time;
c) Under Vietnamese law, if he/she has different citizenships including Vietnamese citizenship, or if he/she has a card for permanent residence or temporary residence in Vietnam.
The principle clearly established in the above regulation is to apply the system of nationality law (for persons with foreign nationality) and the system of law of residence (for stateless people). This is the basis that inherits from the 2004 Civil Procedure Code.
In addition to the general rule, special cases should be noted:
First, the case of stateless people permanently residing in Vietnam. In this case, the law of Vietnam will apply. This is also in line with the general principle, if they permanently reside in Vietnam, it is clear that Vietnam is the place where they have the closest relationship with that person.
Second, the case of people with multiple nationalities. In this case, there are 3 possible possibilities: (1) the person has many nationalities but does not have Vietnamese nationality and resides in one of the countries where he has citizenship. At that time, the nationality mark and the place of residence will be combined to determine that the applicable law is the law of the country where the person has nationality and resides; (2) a person has multiple nationalities but does not reside in one of the countries of his nationality (nor does he reside in Vietnam), then the applicable law is the law of the country in which he or she holds nationality for a period of time longest; (3) If a person has multiple nationalities, including Vietnamese nationality (although he does not reside in Vietnam) or, although he has no Vietnamese nationality, permanently or temporarily resides in Vietnam, the applicable law shall be the law of Vietnam.
Competence of Vietnamese courts in settling civil cases involving foreign elements
The provisions on the jurisdiction of the Vietnamese courts in the Civil Procedure Code are recognized to include general jurisdiction (Article 469) and separate jurisdiction (Article 470). In a civil case involving a foreign element, the first thing is that the court must determine whether it has jurisdiction. This leads to “the question of when the court of the country will hear and decide the matter based on the decision reached by that court”. In this context, this is the only, prerogative authority, in which the term “competence” means adjudiatory competence.
Related procedures
As mentioned above, when it is determined that the jurisdiction belongs to the Vietnamese courts, the order and procedures for resolving a civil case involving foreign elements are carried out as a civil case through the Vietnamese courts. Usually, according to the regulations on the order and procedures for settling civil cases and civil matters recorded in the Civil Procedure Code.
First of all, the relationship between the Court and the litigants arises based on the event of the lawsuit and the acceptance, that is, there must be a petition from an individual, agency or organization. The application review process will be somewhat more complicated and the Court, must return the petition, petition or suspend the settlement of civil cases involving foreign elements in case there is an arbitration agreement, an agreement select a foreign court or have a foreign court, arbitration or other competent foreign agency settle or the involved parties enjoy judicial immunity. In addition, the Court must also make requests to provide personal information and determine the address of the involved parties abroad.
When accepting the case, the Court must notify and concurrently notify the opening date of the court hearing, the meeting, activities on evidence collection and service of documents, which are necessary activities in the course of settlement of the case. Civil matters are regulated in Articles 474 and 475 of the Civil Procedure Code, this will be an important legal basis for state agencies to carry out effective mutual legal assistance activities.
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Frequently asked questions
The settlement of civil cases involving foreign elements must be based on the principle of ensuring the implementation of the Party and State’s guidelines and policies on economic development and expansion of international relations; ensure national sovereignty, territorial integrity, equality and mutual benefit.
Vietnamese courts shall handle civil cases involving foreign elements on the basis of the principle of non-discrimination between involved parties. When participating in civil procedures, foreign individuals, agencies and organizations have the same procedural rights and obligations as Vietnamese citizens, agencies and organizations.
The determination of competence to settle civil cases involving foreign elements must be based on the principle of being based on international treaties that Vietnam has signed or acceded to and must also be based on domestic laws. For countries that have mutual legal assistance agreements with Vietnam, the determination of the court’s jurisdiction to settle civil cases involving foreign elements must comply with the provisions of such mutual legal assistance agreements. For countries that do not have an agreement on mutual legal assistance with Vietnam, they must base themselves on the provisions of Vietnamese law in Chapter III and Chapter XXXVIII of the 2015 Civil Procedure Code to determine the specific competence of the parties in the settlement of cases involving foreign elements.
According to Article 465 of the 2015 Civil Procedure Code, foreigners, foreign agencies and organizations, international organizations, and representative agencies of international organizations in Vietnam have the right to initiate lawsuits with Vietnamese courts to request protection of their legitimate rights and interests when they are infringed or in dispute. A branch or representative office in Vietnam of a foreign agency or organization as authorized by law has the right to initiate a lawsuit to a Vietnamese court to request protection of the lawful rights and interests of the authorized foreign agency or organization are infringed or disputed. According to Article 465 of the 2015 Civil Procedure Code, foreign individuals, agencies and organizations only have the right to initiate civil lawsuits in Vietnamese courts, but in our opinion, they must also have the right to request the settlement of civil cases. Civil. The guarantee of the right to initiate civil lawsuits and the right to request the settlement of civil matters of foreign individuals, agencies and organizations creates favorable conditions for civil relations with foreign elements to develop when they are in the process of international integration.
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