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MINSTRY OF EDUCATION AND TRAINING

MINSTRY OF JUSTICE

HANOI UNIVERSITY OF LAW

-------

NGUYEN THI THUY HANG

ENSURING LITIGATION RIGHTS OF LITIGANTS IN CIVIL PROCEDURE

Specialized major: Civil Law and Civil Procedure
Code: 9 38 01 03

SUMMARY OF DISSERTATIONS

HA NOI, NAM 2019



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The dissertation is completed at:
HANOI UNIVERSITY OF LAW

Academic Supervisor:

1. Prof.Dr. Trần Anh Tuấn
2. Dr. Đinh Trung Tụng

Reviewer 1: Dr. Lê Thu Hà
Reviewer 2: Dr. Nguyễn Quang Thái
Reviewer 3: Dr. Nguyễn Công Bình

Dissertation will be examined by the Council of Dissertation
Evaluation at Ha Noi Law University at date /

Dissertation is available at:
1) National Library of Viet Nam;
2) Library of Ha Noi Law University.

/ 2019


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INTRODUCTORY
In the trend of development and international integration, the issue of protecting
human rights has become increasingly more important. Therefore, in the trial activity to
ensure the litigation right of the litigant is an objective indispensable. Ensuring the litigation
right of the litigants in civil proceedings is the basis for resolving the case accurately and
objectively, bringing justice to the people. The view of judicial reform is recognized by the
Party in Resolution No. 48-NQ / TW of May 24, 2005 of the Politburo on the strategy of
building and perfecting the Vietnamese legal system up to 2010, oriented to 2020 indicated:
“Perfecting the State's protection regime with respect to the rights and legitimate interests
of citizens, the regime of state agencies' responsibilities, especially the Court in protecting
those rights; strictly handle all acts of infringing upon the rights and legitimate interests of
citizens ". It can be seen that our Party's view on judicial reform requires a drastic reform
of judicial proceedings towards democracy, openness, transparency, ensuring the litigation


of the litigants. , ensuring the effectiveness of civil judicial procedures to meet the
requirements of ensuring human rights and civil rights.
The constitution of the socialist republic of Viet Nam 2013, which is seen as the most
powerful national Act, concretized this issue at paragraph 3 of Article 102 as: "People's
Court is responsible for protecting justice, protecting human rights, civil rights, protecting
the socialist regime, protecting the interests of the State, the rights and legitimate interests
of organizations and individuals”. Thus, the issue of justice protection, protection of human
rights and civil rights is placed on top of many of the Court's tasks that the Constitution
listed. This shows the legislative progress on the ground of ensuring human rights and civil
rights is the root for proteting the right to letigation of the litigants in civil procedure.
Ensuring the right of litigants to litigate in civil proceedings is very important.
Ensuring the litigation right of the litigant is to ensure that individuals, agencies and
organizations have legal rights and interests infringed upon or disputed in civil relations,
marriage and family business. Trade and labor can protect their legitimate rights and
interests before the Court. However, from a theoretical perspective, there has not been any
research systematic and comprehensive research on the right to litigation of the litigants in
civil proceedings to serve as a basis for law assessment. On the other hand, a number of
regulations on ensuring litigation rights of the litigants stipulated in the Civil Procedure
Code (CPC) in 2015 are incomplete or lacking, so the application of these regulations in


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practice has led to problems, shortcomings, failing to meet the requirements of the
effectiveness of ensuring procedural rights. For example, CPC 2015 stipulates the litigation
rights of the litigants but does not stipulate the reciprocal obligations of the opposing parties
or regulations, but there are no measures to ensure that the parties oppose the right
implementation their litigation obligations. Therefore, affecting the efficiency of
implementing other litigation rights of other litigants. On the other hand, the Court and the
proceedings of the Court have an important role in ensuring the right of litigation of the
litigants, but the provisions of the CPC 2015 on the responsibilities of the Court, duties and
rights the term of entities conducting proceedings in the Court has not been linked to
ensuring the right of litigation of the litigants. The People's Procuratorate has the function of
monitoring litigation activities, thereby ensuring the litigation rights of the litigants are
enforced but some provisions of the CPC 2015 on the specific duties and powers of the
Head of the Procuracy, Procurators have not met the requirements of ensuring litigants' right
to proceedings. In addition, the civil procedure law has not provided appropriate sanctions
to ensure the right to proceed as well as legal rights and interests of the litigants.
Researching on practical proceedings at the Court showed that the Court has not really
respect and sometimes violate the litigation rights of the litigants and did not create
necessary conditions for the litigants to exercise the right to proceed. This leads to the legal
rights and interests of the parties does not been protected completely. For the reasons
analyzed above, this thesis named "Ensuring litigation rights of litigants in civil
procedure" aims to clarify the theoretical and practical of protecting the litigation rights
based on interpreting the reasons for existence, limitation in ensuring the right to litigate of
the litigants. By doing this, the thesis also proposes requests and petitions to ensure better
litigation rights of litigants in law Civil litigation in Vietnam which be seen as an urgent
matter, with theoretical and practical significance.
New contributions of the thesis
First, the thesis builds on the basic theoretical issues of ensuring litigants' rights to
litigate in civil proceedings such as the nature and scientific basis of the formulation of
regulations on ensuring the right to proceedings of litigant; determine the content of legal
measures to ensure the litigant's right to litigate in civil proceedings and fundamental factors
to ensure the litigation right of litigants in civil proceedings.


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Secondly, the thesis has analyzed and comprehensively assessed the limitations and
shortcomings in the provisions of law as well as the implementation of the provisions of the
law on the right to prosecute the litigants; The determination of the underlying cause of the
litigant's right to proceedings is not guaranteed to be a premise for proposing solutions to
ensure the litigation right of the litigants.
Thirdly, the thesis has built a system of scientific requirements and petitions to ensure
litigants' rights to proceed in civil proceedings to meet the trend of international integration
and the Party's guidelines and policies. The State on judicial reforms ensures human rights
in trial activities, including proposals to improve the law and propose the implementation of
the law.
Forthly, proposals to improve the provisions of the CPC on the assurance of the
involved parties' rights in CPC, including: supplementing the litigation rights of the litigants
not yet recorded; amending and supplementing provisions on the reciprocal obligations of
the involved parties in association with ensuring the right to litigation of other litigants;
completing the provisions of the law on participation in civil proceedings of representatives
and guardians of the rights and interests of the litigants; perfecting the provisions of the
Court's responsibilities and tasks and powers of subjects conducting proceedings in the
Court in association with ensuring the litigation right of the litigants; completing the
provisions of the law on the mechanism of supervising the right to proceed of the litigation,
and at the same time building sanctions to handle violations of the litigation rights of the
litigants.
Lastly, proposals for implementing laws such as building criteria for judging the
Court, training for uniform judicial titles ...
Structure of the thesis
Besides the introduction, overview of research issues, conclusions, references, the
thesis presents with a bridge of 3 chapters:
Chapter 1. Theoretical issues of ensuring litigants' right to litigation in civil procedure
Chapter 2. Current situation of current Vietnamese laws on ensuring litigants' rights
in civil procedure and practical implementation
Chapter 3. Requirements and a number of recommendations on ensuring litigants'
rights to litigate in civil procedure


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OVERVIEW OF THE RELEVANT RESEARCHES AND LITERATURES

Through research of research projects in Vietnam and abroad related to the topic, the
thesis shows that there are no works that comprehensively study theoretical and practical
issues to ensure the right of proceeding of the litigants in civil proceedings in Vietnam.
There is still only studies from the perspective of separate legal rights (but this number is
also very small). However, the research results from these specific procedural rights projects
will be the basis for the PhD student to analyze and interpret the advantages of activities to
ensure the litigant's rights to proceed according to a comparative perspective and procedural
law science. The advantages and research results of the related works will be inherited and
developed by the dissertation.


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CHAPTER 1:
SOME THEORETICAL ISSUES ON ENSURING
THE RIGHTS OF LITIGATION IN THE CIVIL PROCEDURE

1.1. The concept and characteristics of the litigation of the litigants in civil
proceedings
1.1.1. The concept guarantees the litigation right of litigants in civil proceedings
The issue of assuring the litigation rights of litigants in the CPC has been approached
to study in many angles with different points of view. Research results show that there are
up to 5 different views on this issue:
The first view is ensuring the litigation right of the litigants is implemented through
reasonable, public and transparent regulation of proceedings
The second view is assuring the litigation right of the litigant by law, fully
acknowledges the litigation rights of the litigant
The third viewpoint is assuring the litigation right of the litigant by law to enforce
sanctions in violation of litigation rights of the litigant
The fourth viewpoint is ensuring the right of litigants to litigate through the
determination of duties, powers and responsibilities of the proceeding subject
The fifth viewpoint is ensuring the right to litigate the litigants through supervisory
institutions (National Assembly, People's Council, Vietnam Fatherland Front ...).
Thus, it can be seen that there are many different views on ensuring the litigation
rights of litigants in the CPC. Through reference to the above research works and derived
from the nature of the security measures, the fellows realized that the litigation rights of the
litigants were ensured by the overall measures mentioned above.
With the above analysis, ensuring the litigation right of litigants in the legal
system can be accessed in a broad and narrow sense.
In the broad sense, ensuring the litigant's right to litigation in the CPC is a
comprehensive set of measures prescribed by the law to ensure effective implementation
of the litigation rights of the litigants in practice, including full recognition of procedural
rights concretely of each of the litigants, at the same time, establishing reciprocal
obligations of the other litigants; establishing a representative mechanism, protecting the
rights and interests of the litigants; prescribing the duties, powers and responsibilities of
the Court, the Procuracy and those conducting the proceedings; setting up a mechanism


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to supervise the litigants' right to proceedings as well as the necessary sanctions to
handle violations of litigation rights of the litigants.
In the narrow sense, ensuring the litigant's right to litigation in civil proceedings
is construed as: the overall measures prescribed by law to ensure the effective
implementation of the litigation rights of the litigants in fact. including setting up a
representative mechanism, protecting the rights and interests of the litigants; prescribing
the duties, powers and responsibilities of the Court, the Procuracy and those conducting
the proceedings; setting up a mechanism to supervise the litigants' right to proceedings
as well as the necessary sanctions to handle violations of litigation rights of the litigants.
In the framework of this thesis, the content ensures the right of litigants to access
in a broad sense.
1.1.2. Characteristics of ensuring litigants' civil rights in civil procedure
- The court is the subject that plays an important role in ensuring the right to litigation
for the litigants.
- Ensuring the litigation right of the litigant is applied to all parties.
- Ensuring the litigation right of the litigant is the basis for the protection of the civil
rights of the subject protected by law.
- Ensuring the litigation right of the litigants in civil proceedings is implemented by
various coordination measures.
1.2. The scientific basis of the law building on the right to litigation of litigants in
civil procedure
+ The law development of the litigant's right to proceed from the request to protect the
legal rights and interests of the litigants
+ The development of regulations on the right to litigation of the litigants is based on
international standards of human rights
+ The development of regulations on the right to litigation of the litigants is derived from the
requirement to ensure human rights in judicial activities.
+ The development of regulations on the right to litigation of the litigants is based on the
relationship between content law and procedural law.
+ The construction of the law to ensure the litigation right of the litigants comes from
the requirements of civil proceedings at the Court.
1.3. The content ensures the litigation right of litigants in civil proceedings
The thesis only focuses on researching the following security measures: Recognizing
the litigation rights of the litigants, establishing counterpart obligations of other litigants;


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ensure the adoption of regulations on representatives and protectors of legal rights and
interests of the litigants; ensure through the assignment of duties, powers and
responsibilities of the Court; ensure the passing of the Procuracy's regulations on inspection
responsibilities; ensure the adoption of sanctions regulations when the subjects violate the
litigation rights of the litigants.
1.3.1. Full recognition of the basic litigation rights of the litigants and at the
same time establish and ensure the fulfillment of the corresponding obligations of
the other litigants
+ The procedure law must fully and rationally record basic procedural rights and
specific procedural rights based on each stage of proceedings so that the litigants can use to
protect their legitimate rights and interests.
+ There are a number of litigation rights of this litigant who are reciprocal obligations
of the other litigants and only when the other litigants perform their litigation obligations,
will the other party's right to proceed. Therefore, depending on each stage of legal
proceedings, it will be recorded to the litigants specific rights and establish reciprocal
procedural obligations.
1.3.2. Establishing a support mechanism to implement the litigant's right to
proceed through the proceedings of the representatives and the guardians of the rights
and interests of the litigants at the Court
1.3.2.1. Establish a mechanism to support the litigation of the litigants through
participation of the representatives of the representatives
Besides recognizing the litigant's specific procedural rights, the Civil Procedure Law
must have a mechanism for the litigants who do not have full capacity for procedural acts or
have no conditions to directly participate in the proceedings may access to the procedural
rights granted by law. The reality shows that in legal relations, those who have lost their
capacity for behavior, have limited capacity for behavior, juveniles or people with
difficulties in perceiving behavior control must have legal representatives. In addition, there
are cases where the sick, go on business or for some legitimate reason that cannot
participate in the proceedings also need to have a legal representative on behalf of them to
exercise their rights and obligations before the Court. The participation of the representative
contributes to ensuring the litigation rights of the litigants are effectively implemented in
practice


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1.3.2.2. Establish a support mechanism to implement the litigant's right to proceed
through the proceedings of the person protecting the legal rights and interests of the
litigants
When participating in the proceedings, not all litigants understand the law to carry out
the procedural rights. Because of the proceedings, the legal process in court is quite
complicated. Therefore, legal support of legal rights and protection advocates is needed to
help the person implement this process. The participation of the person protecting the legal
rights and interests of the litigants is very important for ensuring the litigation rights of the
litigants in civil proceedings. The person who defends the legal rights and interests of the
litigants both plays an advisory role to help the litigants understand and well implement
their procedural rights while assisting the litigants in exercising other procedural rights like
the right to collect evidence, proof; adversarial rights,…etc.
1.3.3. Regulations on the duties, powers and responsibilities of the Court in ensuring
the implementation of the litigation right of the litigants
In order for the Court to ensure the litigation of the litigant, it must first establish a
legal basis for promoting and ensuring the right of litigation of the litigant, by stipulating the
Court's responsibilities, as well as rights and obligations. parties, as a basis for
implementation. In the process of settling the case depending on the stage of the
proceedings, the Court takes the initiative or at the request of the litigant to apply or create
necessary conditions for the litigant to exercise the right to proceed with the law. The extent
to which the Court's responsibility will be exercised will determine whether the litigation of
the litigant is guaranteed.
The Court exercises its power, functions and duties through trial activities. Such trial
shall be conducted by the proceeding proceeders, the Chief Judge, the Judge, the Court
Clerk, the People's Court and the Inspector. Therefore, the procedural law stipulates the
duties, powers and responsibilities of those conducting legal proceedings in accordance with
their functions have a direct meaning to the quality and effectiveness of the exercise of
rights. litigation of litigants. Especially the duties and powers of Judges, Assessors and
Court Clerks.
1.3.4. Regulations on the duties, powers and responsibilities of the Procuracy in
ensuring the implementation of the litigation right of the litigants
The Procuracy's participation in civil proceedings is considered as one of the


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"supervisory channels" to ensure that the litigation right of the litigants is effectively
implemented in practice. However, not all countries use the Procuratorate's control
mechanism to ensure their litigation rights.
In order for the Procuracy to perform the function of effective control, contributing to
ensuring the litigation right of the litigant, the civil procedure legislation must stipulate the
duties, powers and responsibilities of the procuracy in the protection ensure the litigation of
the litigants in accordance with the functions, positions and roles of the procuracy.
Legislators must base on the nature of the stages of civil proceedings such as the first
instance, the appellate, the re-trial director to acknowledge the rights and duties of the
Procuracy in accordance with the function of supervision in order to ensure the execution of
litigants' rights corresponds to each stage of the proceedings. On the other hand, the
legislator must base on the procedural model, based on the legal relationship of disputes to
rationally define the tasks and powers of the procuracy in civil proceedings.
1.3.5. Establish necessary sanctions to handle violations of litigation rights of
litigants
The timely detection and handling of violations of litigation rights of the involved
parties will have the effect of preventing and overcoming consequences of violations of the
litigation right of the litigants. Therefore, the civil procedure law needs to stipulate fully,
clearly and transparently sanctions to deal with subjects when violations occur. These
sanctions not only apply to subjects conducting proceedings, subjects participating in legal
proceedings but also apply to subjects who keep documents and evidence but hinder the
litigants in collecting, provide evidence. The sanctions are applied to individuals, agencies
and organizations that violate the proceedings of the law are very diverse, possibly
disciplinary sanctions, administrative sanctions, criminal sanctions, civil sanctions.
Depending on the status of the proceedings and the nature and extent of the violation, the
civil procedure legislation stipulates corresponding sanctions. For subjects violating the
litigation rights of the involved parties but not officials and public employees, depending on
the seriousness of the violations, they may be handled according to civil sanctions,
administrative sanctions and criminal sanctions. For violating subjects being officials and
public employees, in addition to administrative sanctions, civil sanctions, criminal sanctions
may be handled according to disciplinary sanctions.
1.4. Factors that govern the assurance of litigants' right to litigation in civil


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proceedings
+ The level of legal knowledge and the sense of compliance with the litigant's civil law
+ Activities of judicial support
+ Capacity of professional qualifications, bravery and professional ethics of people
conducting legal proceedings


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CHAPTER 2
CURRENT SITUATION OF VIETNAM LEGISLATION
ON ENSURING THE LITIGATION RIGHTS OF LITIGANTS
IN CIVIL PROCEDURE AND PRACTICE IMPLEMENTATION
2.1. Actual situation of Vietnamese laws on ensuring litigation rights of litigants
in civil procedure
2.1.1. Recognition of specific procedural rights and the establishment of the
litigant's obligation to respond to the proceedings
2.1.1.1. Advantages in recognizing specific procedural rights and establishing the
litigants' reciprocal obligations
The results of theoretical comparison and the actual law show that, based on the nature
and purpose of each stage of the proceedings as well as the procedural actions that the
litigants need to take to protect the rights and interests of the people The lawmakers of
Vietnam concretized this basic procedural right into specific procedural rights and are
recognized in the CPC 2015.
In addition to acknowledging specific procedural rights, based on the argument of the
correlation between the rights and obligations of litigants, CPC 2015 also established
counterpart obligations of the litigants to ensure for carrying out litigation rights of litigants
in CTD
2.1.1.2. Limitations in recognizing the right to prosecute and establishing the
litigant's counterpart obligations
* Restrictions on the recognition of legal rights
- The provisions of specific litigation rights of litigants in CPC 2015 are not really
reasonable and do not meet the requirements of ensuring the right of complaint of the
litigants.
- CPC 2015 lacks regulations on the rights of the litigants in requesting individuals and
competent agencies to request and recommend, reconsider the decision of the Municipal
Court of Justice.
- CPC 2015 did not specify the right to a trial by an independent and objective Court
within a reasonable time.
- CPC 2015 has no provisions on the right to request the application of temporary
emergency measures before lawsuits


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* Limitations in setting up the litigant's litigation obligations:
- CPC 2015 does not stipulate the obligations of the defendant, the person with the
rights and obligations in sending the plaintiff to express their views on the petitioner's claim
and documents and documents. just attached
- CPC 2015 does not provide for the obligation to send appeal feedback and attached
documents and evidence to the appellant and consider the appeal to be a litigation right of
the litigants instead of a litigation obligation. their
- CPC 2015 does not prescribe the obligation to send copies of appeals and attached
documents and evidence of the appellant to the litigants related to the appeal.
- CPC 2015 does not stipulate measures and time limits for implementing plaintiff's
obligations in sending documents and evidence to opposing parties
- CPC 2015 does not stipulate measures and time limits for implementing plaintiff's
obligations in sending documents and evidence to opposing parties
2.1.2. Actual situation of legal provisions of the Law on Ensuring the right of
litigants to litigate through the role of the representative, the person protecting the legal
rights and interests of the litigants
2.1.2.1. Actual status of the provisions of the civil procedure law on ensuring the
litigation right of the litigants through the role of the representative
CPC 2015 regulates that representatives have many changes in order to create favorable
conditions for the litigants to have the right to act on behalf of the Court to best protect their
legal rights and interests. they. However, the research results show that there are some
regulations on representatives in CPC 2015 which have not been rationally and clearly defined,
leading to difficulties in implementing the representation rights of the litigants.
- CPC 2015 does not stipulate clearly that legal entities cannot act as authorized
representatives
- The provisions of the CPC 2015 on the time when the litigants can perform the
authorization in civil proceedings, the subject confirms the authorization and the form of
authorization has not met the requirements to ensure the right to have a representative.
participate in litigation of the litigant
2.1.2. The reality of the provisions of the civil procedure law on ensuring litigants'
right to proceed through the role of the representative, the person protecting the legal
rights and interests of the litigants


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- CPC 2015 has not created favorable conditions for the guardians to assist the litigants
to participate in the proceedings to support the litigants to exercise their right to proceed. In
particular, CPC 2015 has not yet simplified the procedures for registration as a guardian of
the rights and interests of the litigants.
- The opinion of the person who defends the legal rights and interests of the person
presenting at the trial is not always recognized by the trial panel. Therefore, the role of the
legal guardians to protect their rights and interests is weak
- CPC 2015 has no exclusion provisions for the person protecting the legal rights and
interests of the litigants with their relatives (children; wife, husband or father, mother)
participating in protecting rights, legal benefits for the litigants with opposing interests in
the same case.
2.1.3. Status of civil procedural laws and regulations on the Court's responsibilities
and duties, powers and responsibilities of persons conducting legal proceedings in
ensuring the execution of the litigation right of the litigants
2.1.3.1. The status of civil procedural laws and regulations on the Court's
responsibilities in ensuring the litigation right of the litigants
Firstly, the CPC in 2015 has no provisions on the Court's responsibilities associated
with ensuring the litigation right of litigants in civil proceedings.
Secondly, CPC 2015 has supplemented the principle of Article 4 that the Court is not
allowed to refuse to accept the case when there is no applicable law to ensure the litigant's
right to sue, but CPC In 2015, there were no regulations on sanctions against the Court
when it refused to accept the case on the grounds that there was no applicable law.
Thirdly, CPC 2015 does not limit the time that the Court has the right to collect
evidence, which has greatly influenced the litigation of the litigants.
Fourth, the impartial independence of the Court in the trial process is an important
guarantee for the litigation right of the litigants to be practically practiced.
2.1.3.2. Actual status of civil procedural laws and regulations on duties, powers and
responsibilities of persons conducting legal proceedings in ensuring litigation rights of
litigants
In addition to the advantages, the 2015 CPC regulates the duties and powers of Judges,
Clerks and Assessors with some limitations such as:


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- There are no provisions or clauses that specifically stipulate the Judge's
responsibilities in ensuring and supporting the litigants to exercise the procedural rights
prescribed by law.
- CPC 2015 stipulates that the litigants are obliged to transfer documents and evidence
related to the case to other litigants, but do not stipulate that the Judge should be responsible
for supervising, urging and requesting the litigants. litigants perform that obligation
- Article 51 of the CPC 2015 does not have any provisions attached to the
responsibilities of the Secretary with the right to prosecute the litigants or stipulate that the
Secretary is responsible with the Judges to support and create favorable conditions. for
litigants to exercise their legal rights.
- CPC 2015 does not stipulate that People's jurors must study case files from any stage
of the procedural process.
2.1.4. Current situation of the provisions of the civil procedure law on the
mechanism of supervising the assurance of litigation rights of the litigants
Besides the advantages, there are some limitations such as:
- The provisions of CPC 2015 did not meet the requirement of supervision to ensure
the litigant's right to sue
- The provisions of the CPC 2015 on the right to protest of the Procuracy have not met
the requirements of ensuring the right of self-determination and right of litigation
2.1.5. Actual situation of the law on sanctions dealing with violations of litigation
rights of litigants
Some acts of violation of litigation rights of the litigants are not yet regulated by the
law on sanctions, leading to the right to proceedings of the litigants not yet guaranteed.
- CPC 2015 does not stipulate sanctions for acts of obstructing the litigants, their
representatives, the persons protecting legal rights of the involved parties in collecting
documents and evidence to prove the requirements of litigant.
- CPC 2015 has not yet imposed sanctions for the representative; the person defending
the legal rights of the litigant if they commit acts of harming the execution of the litigation
right of the litigant.
- CPC 2015 does not regulate sanctions if the litigants do not perform the obligation to
send documents and evidence to the opposing parties
- CPC 2015 only regulates sanctions for acts of obstructing procedural activities but


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has not set a responsibility to compensate for damage in cases where the subjects
conducting legal proceedings and opposition parties violate the rights litigation of other
litigants.
2.2. Practical implementation of current regulations on ensuring litigation rights
of litigants in civil proceedings
2.2.1. Regarding the results achieved from practical implementation of current
regulations on ensuring litigation rights of litigants in civil proceedings
- In recent years, basically the litigation rights of the litigants have been guaranteed to
be implemented in practice. Specifically, the right to sue, when the litigant sues the case to
meet the provisions of law, the Court is accepted.
- The results of practical research also showed that the litigation rights of the litigants
were also ensured by the Courts in practice. In the process of resolving a civil case, the
number of successful conciliation cases in 2017 is 173,958 cases, reaching 53.3%.
- Complaints of the litigants are also concerned, implemented. In 2017, the high-level
People's Courts and the Supreme People's Court settled 7,097 / 18,067 applications for
cassation review and retrial, reaching 39.3% (8.8% higher than the previous year); settle
4,875 / 5.005 complaints about procedural and procedural decisions, reaching 97.4% (8.9%
higher than the previous year).
- In the process of resolving civil cases, the Court also respected and ensured the
litigants exercise their rights of proceedings.
- The Ministry of Justice has granted certificates of law practice to 1,004 cases; Granting
and extending practice licenses in Vietnam for 57 cases of foreign lawyers. The country has a
total of 12,581 lawyers who have been granted practicing cards (increasing 1054 lawyers
compared to 2016). With a growing number of lawyers, in the process of participating in
litigants, there are more opportunities to choose experienced and professional lawyers to help
support the litigants in ensuring rights. your chant
- Therefore, in 2017 legal aid centers have completed 79,743 legal aid cases for 87,268
people, of which 16,280 cases involved in legal proceedings (up 150% compared to 2016).
- The Procuracy at all levels also discovered violations in the process of resolving civil
cases, contributing to ensuring the litigation right of the litigants. Specifically, in 2016, the
Procuracy issued 1,521 appellate appeals, in which the Court accepted 1,319 protests at the
rate of 86.7%.


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2.2.2.1. Shortcomings and shortcomings exist in the implementation of the
provisions of the civil procedure law on the rights of litigation of the litigants, the other
party's counter-litigation obligations.
- The status of the litigant who fails to fulfill his / her present obligation to summon
the Court leads to the right to participate in the other party's conciliation.
- The phenomenon of the litigant does not perform the obligation to respond to the
lawsuit and does not participate in the meeting to implement the submission and public
access to the evidence.
- The litigants do not perform the obligation to send documents and evidence to the
opposing parties, leading to the right to access evidence and documents of the case, the right
of litigants to protest is not guaranteed.
- The non-cooperation of one party leads to the right to ask the Court to take measures
to examine on-site appraisal and the right to request property valuation to not be
implemented.
2.2.2.2. Shortcomings and limitations in implementing the litigation rights of the
litigants through the representative and the supporting role of the person protecting the
rights and interests of the litigant
* Shortcomings and limitations in implementing the litigation rights of litigants
through representatives
- The right to have the representative of the litigant not be exercised due to the
different ways of understanding and applying the representative scope of the representative
between the Courts
- The right to have the representative of the litigant not taken due to the ignorance of
the litigant and their representative
* Shortcomings and limitations in practical implementation of litigation rights of the
litigants through the support role of the person protecting the rights and interests of the litigant
- The Court has not created favorable conditions for the protection of the rights and
interests of the involved parties to participate in the proceedings, leading to the right to ask
the litigants to protect their interests.
- The person protecting the legal rights and interests of the litigants and his / her
relatives together participating in protecting legitimate rights and interests of the involved
parties with opposing interests


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- Not always Lawyers can enter the register on time as prescribed by law, many cases
of Judges assigned to resolve civil cases are not aware of the importance of Lawyers right
from the start sued and accepted the case, so it was late in entering the register of guardians
of legal rights and interests of the litigants.
- The phenomenon of the Court still does not really respect the role of the legal
guardian of the legal rights and interests still exists
2.2.1.3. Shortcomings and limitations in practical implementation of the provisions
of the Court's responsibilities and duties, powers and responsibilities of persons
conducting legal proceedings in ensuring the implementation of the litigation rights of
the litigants
* Shortcomings and limitations in practical implementation of the provisions of the
Court's responsibilities in ensuring the implementation of the litigation rights of the litigants
- The Court does not conduct invalid service procedures, leading to the parties' failure
to modify the counterclaim, so the litigant's right to protest is not implemented. (Judgment
No. 53/2018 / DS-PT in the case of "suing property" by the People's Court of Dak Lak
province for appellate trial on March 21, 2018_
- The Court has violated the right of self-determination of the litigant due to the
resolution beyond the scope of litigation of the litigant. (Jurisdictional Decision No. 63/2017
/ DS-GDT) adjudicated by the high-level People's Court in Danang on August 3, 2017)
- The irresponsible court has led to some rights of litigants of the litigants not
guaranteed to be implemented. (Verdict No. 219/2017 / DS-PT) by the High-Court People's
Court in Ho Chi Minh City for appellate trial on September 15, 2017
- The Court has determined that it is not in the right way to participate in the
proceedings, so it has not convened the litigant involved in the proceedings, leading to the
litigants failing to exercise their procedural rights still existing. (Judgment No. 10/2018 /
DS-PT) was heard by a high-ranking People's Court in Ho Chi Minh City on January 18,
2018.
* The shortcomings and limitations in practical implementation of the provisions on
duties, powers and responsibilities of conducting proceedings with the assurance of
litigation rights of the litigants
- Practical implementation of regulations on duties, powers and responsibilities of the
Judge


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In the trial practice, Judges do not always perform exactly the duties and powers
prescribed by the CPC. (Verdict 48/2017 / DS-PT "Dispute on loan agreement" was tried by
People's Court of Gia Lai province on September 27, 2017, mentioned the wrongdoing of
the Judge due to not implementing their duties and powers according to law); (Verdict No.
08/2017 / DS-PT "Disputes on deposit contracts" is tried by Danang People's Court on
February 20, 2017).
- Practical implementation of regulations on duties, powers and responsibilities of
Court clerks
Trial practice shows that the Secretary does not always perform his duties and powers
rightly. This affects the implementation of other litigation rights of the litigants. (Judgment
No. 69/2018 / DS-PT "Disputes over property loan contracts" by the Tay Ninh Provincial
People's Court for appellate hearing on March 26, 2018, the judgment of the provincial TA
has identified the wrongdoing signing the Court in writing the minutes of the trial; (Verdict
48/2017 / DS-PT "Dispute on loan agreement" by Gia Lai People's Court on September 27,
2017)
- Practical implementation of regulations on duties, powers and responsibilities of
people's jurors
In the practice of many cases, the jurors do not carefully study the contents of the case
but only participate as the fulfilled components. Therefore, there are cases where the jurors
do not know that they have participated in the trial before, so they continue to participate in
the second trial, leading to the judgment being canceled because the jurors participate in the
trial of the same case twice. (Judgment No. 16/2018 / DS-PT on February 2, 2018 "Disputes
over land use rights" issued by Bac Giang Provincial People's Court).
2.2.1.4. Shortcomings and limitations in the practice of implementing regulations on
the mechanism of supervising the litigation of the litigants
- There are cases where the lower level Procuratorate protests but this protest is not
grounded so the superior Procuracy has withdrawn the protest. (Sale No. 09/2017 / LD-PT
"Dispute on the form of labor discipline disciplinary action" by the People's Court of Binh
Duong province on July 13, 2017)
- The judgment is canceled because the participant participated in the same case twice.
(Judgment No. 188/2017 / DS-PT on "Claims due to infringement of life" by the People's
Court of Ben Tre on appeal on August 17, 2017).


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- The status of the litigant appeals to amend the first instance verdict, but the VKS
protested against the first instance verdict that still exists, violating the right to dispose of
the litigant. (The case "disputes over land use rights and the request to cancel part of
administrative decisions" between Ms. L and Mr. V, due to Da Nang's high-level People's
Court adjudicated and issued judgment No. 153/2018 DS-PT dated October 29, 2018).
2.2.1.5. Shortcomings and limitations in implementing regulations on sanctions
dealing with violations of litigation rights of litigants
- In fact, violations that lead to litigation of the litigants are not guaranteed to exist. For
example, the district People's Court Judge Tuy Phuoc (Binh Dinh) has just sentenced a
divorce case, when suddenly a dozen people on the defendant rushed to kick down the
Council's furniture and shock the file, tear up all documents. . The tearing down of records
and documents greatly affects the implementation of subsequent procedural rights at the
appellate trial.
- The status of defendants' legitimate rights and interests still violates the litigation
right of the litigants.
- The situation of the opposing opposition that obstructs the other parties to participate
in the proceedings at the request of the Court still exists, making it difficult for the process
of resolving the case and making other parties unable to do so. show their legal rights.
(Jurisdiction decision No. 07/2017 / HNGD-GDT dated July 11, 2017 "Divorce dispute" by
the high-level People's Court in Da Nang adjudicated according to cassation procedures).
2.3. The reasons of the litigation right of the litigants is not guaranteed
The litigation of the litigants has not been guaranteed to be practiced due to many
different reasons. In addition to causes due to inadequacies in the provisions of the
procedural law, the fellows have analyzed in sections 2.1 and 2.2 of Chapter 2, there are
also the following causes:
Firstly, due to the ability of the litigants to understand and comply with the law.
Secondly, due to the level of competence, qualifications and perceptions of proceeders.
Third, lack of support from legal aid organization and lawyer team.


20

CHAPTER 3:
REQUIREMENTS AND SOME RECOMMENDATIONS ON PROTECTION OF
THE LITIGATION RIGHTS OF THE LITIGANTS
IN THE CIVIL PROCEDURE

3.1. Requirements for ensuring litigation rights of litigants in civil proceedings
+ The completion and implementation of the provisions on ensuring the right to
litigation of the litigants must meet the requirements of building a socialist Vietnamese ruleof-law state.
+ The completion and implementation of the provisions on ensuring litigation rights of
the litigants must meet the requirements of judicial reform and international economic
integration in the current context.
+ The completion and implementation of the provisions of the litigation of the litigants
must meet the requirements of the uniformity of the legal system
+ The completion and implementation of the provisions on ensuring the right to
proceedings of the litigants must effectively overcome existing shortcomings and
limitations.
3.2. Proposals on ensuring litigants' rights to litigate in civil proceedings
3.2.1. Proposing to perfect the law on ensuring litigants' rights to litigate in civil
proceedings
3.2.1.1. Supplement and concretize the litigation rights of the litigants not yet
recorded by law
- Amending and supplementing provisions on the right to complain of the litigants in
the direction of expanding this right
- Supplement the right to request individuals and competent agencies to request and
petition, reconsider the decision of the Municipal Court of Justice.
- Supplement the right to adjudication by an independent, objective Court within a
reasonable time
- Supplement the right to request the application of provisional emergency measures
before initiating a lawsuit
3.2.1.2. Amending and supplementing provisions on the reciprocal obligations of the
involved parties in association with ensuring the right to litigation of other litigants


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- Supplement the obligations of the defendant, the person with the rights and
obligations in sending the plaintiff to express their views on the plaintiff's petition request
and attached documents and evidence.
- Additional obligation to send a copy of the appeal and attached documents and
evidence of the appellant to the person concerned regarding the appeal
- Additional obligations to send appeal feedback and attached documents and evidence
of the litigants do not appeal the appeal
Supplementing provisions on the obligation of exchanging documents and evidence of
the litigants to request legal proceedings to ensure the rights of litigants of other parties
Supplementing provisions on the time of exchanging documents and evidence between
the litigants and the responsibility of supervising and urging the Judges
3.2.1.3. Perfecting the provisions of the law on ensuring the litigation rights of the
litigants through the role of the representative, the person protecting the legal rights and
interests of the litigants
* Perfecting the provisions of the law on ensuring the litigation right of the litigants
through the role of the representative
- Supplementing a number of subjects may not act as representatives of the involved
parties
- Additional provisions of cases where legal entities must not act as authorized
representatives
- Additional provisions on the form of authorization in civil proceedings to ensure the
right to authorize individuals and legal entities to participate in the proceedings
* Perfecting the provisions of the law on ensuring the litigation rights of the litigants
through the role of the defense of the legal rights and interests of the litigants
- Supplement the right to complain of the guardians of the legal rights and interests of
the litigants in respect of the decisions and acts of the proceedings of the agency conducting
legal proceedings and the persons competent to conduct the proceedings.
- Amending Clause 5 Article 75 of the CPC in 2015 in the direction of simplifying
procedures for registration of participation to protect the rights and interests of the litigants
- Additional cases of prohibiting persons protecting legal rights and interests of
involved parties to act as representatives or guardians of legitimate interests for the litigants


22

- Supplementing the opinion of the guardians of the legal rights and interests of the
litigants at the trial must be recorded in the judgment, in case the Panel does not accept such
opinions, the reasons must be clearly stated in the copies.
3.2.1.5. Completing the provisions of the law on the responsibilities of the Court and
the duties, powers and responsibilities of persons conducting legal proceedings in
ensuring the implementation of the litigation rights of the litigants
- Additional principles The Court must be responsible for ensuring the litigation right
of the litigant.
- Supplementing regulations on limit of time for Court to collect documents and
evidence.
- Supplement specific cases where the litigant has the right to request a change of
Judge.
- Supplementing provisions on duties, powers and responsibilities of Judges in
ensuring the implementation of the litigation right of the litigants.
- Supplementing provisions on duties and powers of people's jurors in ensuring the
implementation of the litigation rights of the litigants.
3.2.1.5. Complete the regulations on the mechanism of supervising the litigation of the
litigants
- Amending and supplementing Item 1 of Article 170 of the CPC in 2015 to meet the
requirement of supervising the implementation of the litigant's right to sue
- Amending and supplementing the rights of the Procuracy at the trial to meet the
requirements of the control of the litigation of the litigants
- Limit the right of protest of the Procuratorate to ensure the right of self-determination of
the litigant
3.2.1.6. Supplement sanctions to handle violations of litigation rights of the litigants
- Supplement regulations on sanctions for acts of obstructing the involved parties'
proceedings and persons protecting their legal rights and interests
- Supplementing regulations on handling acts of obstructing the verification and
collection of evidence of the involved parties, representatives and persons protecting legal
rights of the involved parties
- Supplementing sanctions in case the litigants do not perform the obligation to send
documents and evidence to the opposing parties


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- Supplementing sanctions in case the representative or guardian of the legal rights of
the involved parties violate the litigation right of the litigant
- Additional liability for damages of the Court in case of infringement of the litigation
right of the litigant leading to damage
- Supplementing sanctions to handle criminal responsibilities for infringement of
litigation rights of litigants in civil proceedings
- Supplementing the litigants 'civil liability compensation for violations of other
litigants' rights leading to damage
3.2.2. Proposing the implementation of regulations on ensuring litigation rights of
litigants in civil proceedings
3.2.2.1. Develop a program to assess the justice index to improve the effectiveness of
supervision to ensure the implementation of the litigation right of the litigants
3.2.2.2. Enhance other guarantees from the Court to ensure the implementation of
specific litigation rights of the litigants
3.2.2.3. The State must have guidelines and strategies to change the mindset,
awareness of the spirit of supremacy, and judicial activities in the direction of the Court
doing public services to protect the legal rights of the litigants.
3.2.2.4. Improving the effectiveness of legal aid activities, bailiffs and lawyers
3.2.2.5. Unify the model of training judicial titles


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