Applying the law in resolving marriage and family cases in Hanoi

The investigation process must strictly and accurately comply with the provisions of the Civil Procedure Code to ensure the objectivity of the case.

* Suspension and temporary suspension of the case

- In case of suspension of the case, the Civil Procedure Code shall be applied in the following cases:

a. The plaintiff or defendant is a deceased individual whose rights and obligations are not inherited.

b. The agency or organization has been dissolved or declared bankrupt without any individual, agency or organization inheriting the litigation rights and obligations of that agency or organization.

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c. The plaintiff withdraws the lawsuit and the Court accepts it or the plaintiff does not have the right to file a lawsuit.

d. Agencies and organizations withdraw the lawsuit in case there is no plaintiff or the plaintiff requests not to continue resolving the case.

d. The parties have reached an agreement and do not request the Court to continue resolving the case.

e. The plaintiff is duly summoned for the second time but is still absent, unless that person has a request to resolve the case in absentia or there is a force majeure event.

g. There has been a court decision to open bankruptcy proceedings against an enterprise or cooperative that is a party in a case where the resolution of the case is related to the property obligations of that enterprise or cooperative.

h. The statute of limitations has expired.

i. Cases specified in Clause 1, Article 168 of the Civil Procedure Code.

k. Other cases as prescribed by law [33, Article 192].

If the case falls into one of the above cases, the Court will analyze, evaluate, and clarify the details of the case, and at the same time compare them with current legal provisions, select legal norms to apply to issue a decision to suspend the case.

Legal consequences of suspension of case settlement: If the case is suspended according to the cases specified in points a, b, d, đ, e and k as mentioned above, the advance payment of court fees paid by the litigant shall be transferred to the State budget. If the case is suspended according to points c, g, h and i, the advance payment of court fees paid by the litigant shall be refunded to them.

- In case of temporary suspension of case settlement, the Civil Procedure Code shall be applied in the following cases:

+ The parties are deceased individuals, agencies or organizations that have merged, split or dissolved without any individual, agency or organization inheriting the litigation rights and obligations of that individual, agency or organization;

+ The party is an individual who has lost civil capacity and has not yet determined a legal representative;

+ Termination of legal representation of the party without a replacement;

+ Need to wait for the results of the judicial commission or wait for the agency or organization to provide documents and evidence as requested by the Court to resolve the case, but the settlement period has expired;

+ Need to wait for the settlement result of another related case or the matter is stipulated by law to be resolved by another agency or organization before the case can be resolved;

+ Other cases as prescribed by law [33, Article 189].

Then analyze and evaluate, reveal the details of the case, compare with current law, select legal norms to apply to decide to temporarily suspend that case.

The legal consequences of the temporary suspension, the advance payment of court fees and the fees of the litigants shall be deposited in the State Treasury and shall be processed when the Court continues to resolve the case. The decision to temporarily suspend and suspend may be appealed or protested according to the appellate procedure.

The second is ADPL activity in case of successful conciliation.

In case of successful conciliation, after accepting the Marriage and Family case, the Court will investigate the case and follow the same steps as in the case of suspension or temporary suspension of the case, but the collection of documents and evidence related to the case must depend on the nature of each case being resolved. Simple cases have easier investigation content than complex cases. When the investigation has been fully completed and objective details of the case have been revealed, the Court will proceed with conciliation.

Mediation must comply with the provisions of Articles 180, 181, 185, 186 of the Civil Procedure Code. The court summons the parties to mediation to help them reach an agreement on the disputed issues. Before conducting mediation, the judge must have a firm grasp of the details of the case and must proactively prepare the content for the mediation session. At the same time, the relevant parties and their representatives must be notified of the location, time, and content of the issues to be mediated.

The conciliation components are also stipulated by law, including: the judge presiding over the conciliation session, the secretary recording the content of the conciliation minutes. In a case with many parties, where one party is absent from the conciliation session, but the other parties agree to conduct conciliation and the conciliation does not affect the rights and obligations of the absent party, the judge will conduct conciliation between the parties present. If the parties request to postpone the conciliation session, in order to have all parties present in the case, the judge must postpone the conciliation session. When conducting conciliation, the judge will inform the parties of the provisions of the law.

related to the settlement of the case so that the parties can relate to their rights and obligations, analyze the legal consequences if the case has to be tried, so that they can reach an agreement with each other on how to resolve the case. Then, the Judge analyzes, evaluates, and clarifies the details of the case, and at the same time understands the wishes and aspirations of the parties and then conducts the reconciliation. During the reconciliation phase, the Judge must have a solid grasp of legal knowledge, a deep understanding of society, and rich life experience. He must patiently analyze and encourage the parties to resolve the disputes so that the reconciliation can achieve results. When the parties have reached an agreement on the disputed issues, the content of the reconciliation must be recorded in a record and signed by the parties, the secretary, and the Judge presiding over the reconciliation session according to the provisions of Article 186 of the Civil Procedure Code. The minutes of successful conciliation are delivered to the parties [33, Article 186, Clause 2]. After 07 days from the date of making the minutes of successful conciliation, if no party changes their mind, the Court will compare with current law and choose the applicable legal norm, Article 187 of the Civil Procedure Code, to issue a decision recognizing the successful conciliation.

The decision to recognize a successful conciliation shall take legal effect immediately upon issuance and shall not be subject to appeal or protest under the appellate procedure, but may be protested under the supervisory procedure if there is reason to believe that the agreement is mistaken, deceptive, threatening or contrary to the law or social ethics.

Third is ADPL activity in case of consensual divorce .

In the case of consensual divorce, when accepting the Marriage and Family case, the Judge investigating the case must also follow the above steps, but in this case, the divorce case should require further investigation about the children such as the children's age, the children's wishes when their parents divorce, about assets, common debts, and separate debts must also be fully and clearly investigated. In this case, the husband and wife both request a divorce, but the

If reconciliation fails, the parties truly see that the marital relationship is gone, there is no possibility of reunification, they voluntarily divorce, as well as agree on the division of common property, debts, care, upbringing, education of children, the Court will draw up a record of the content of that agreement, and at the same time compare it with the provisions of the law on marriage and family to issue a decision recognizing the consensual divorce of the parties.

Fourth is ADPL activity in case of bringing the case to trial with a verdict.

The Law on Organization of People's Courts 2002 stipulates the jurisdiction of People's Courts at all levels as follows:

- First instance trial of the People's Court of district, town, city under province (hereinafter referred to as district-level People's Court).

- First instance trial of the provincial People's Court.

- The appeal trial of cases in which the first-instance judgment or decision of the District People's Court that has not yet taken legal effect is appealed or protested according to the provisions of law.

- Review or re-review cases in which the judgments and decisions of the District People's Court that have come into legal effect are protested according to the provisions of law.

- Resolve other matters as prescribed by law [31, Article 28] .

Based on the provisions of law on decentralization, classify each type of case for the Courts to resolve. In resolving Marriage and Family cases, the District People's Court is authorized to resolve them according to the first instance procedure and the Provincial People's Court is authorized to resolve Marriage and Family cases according to the first instance, appeal, review and retrial procedures according to the provisions of law.

Usually, cases that must be brought to trial are more complicated in nature. On the other hand, the parties also have goodwill towards resolving disputes through negotiation and conciliation.

After the Court accepts the Marriage and Family case, investigates, verifies, collects documents and evidence related to the case, and requests the parties to prove the issues related to the dispute in accordance with the steps mentioned above. After a full investigation, revealing the objective details of the case, if the case has assets, the assets must be valued. Then, conduct mediation and analysis so that the parties can reach an agreement with each other. If they cannot reach an agreement, the Judge will evaluate the details of the case and compare them with current laws to choose the legal norm - decide to bring the case to trial. In this case, from the time of acceptance to the time of bringing the case to trial, this is the process of preparing for trial. The ADPL Judge (as prescribed from Article 213 to Article 241 of the Civil Procedure Code) must comply with the following steps to conduct the trial of the Marriage and Family case:

- The procedure for starting a trial includes:

+ The judge opens the trial and reads the decision to bring the case to trial;

+ The judge checks the identity of the parties; Disseminates the rights and obligations to the parties at the trial;

+ Introduce the members of the Trial Panel; Ask if anyone requests to change the litigators?

+ Consider the decision to postpone the trial when someone is absent;

- Procedure for questioning at court:

+ Ask the litigant whether to change, add or withdraw the lawsuit request?

+ Ask the plaintiff and defendant if they can reach an agreement on how to resolve the case? Is there any way to reconcile?

+ Listen to the presentations of the parties;

+ Order of questioning at the trial: Ask the plaintiff first, then ask the defendant and people with related rights and obligations, witnesses...;

+ Announce case documents and evidence, examine physical evidence, question experts and interpreters;

+ End of questioning at court;

- Debate at the trial:

+ Order of debate: Plaintiff, defendant, persons with related rights and obligations, witnesses express their opinions and respond to each other on the debated issues. (If the case has a lawyer defending the legal rights and interests of the parties, the lawyer reads the statement defending the legal rights and interests of his client);

+ The Procuracy speaks about the compliance with civil procedural law of the Judge and the Trial Panel;

+ Return to the questioning, if deemed necessary;

- Deliberation and sentencing:

+ The trial panel deliberates, if it deems it necessary to re-examine to reveal the details of the case, then return to the questioning and debate;

+ Deliberation and sentencing, providing extracts to the parties and relevant agencies and organizations.

The ADPL activities of the Trial Council for Marriage and Family cases are carried out in the following order:

* ADPL activities follow the first instance procedures of the District People's Court.

This is the first trial of a marriage and family case and almost all of these types of cases are tried at the district level. Previously, ADPL resolved marriage and family cases at the first instance level of the district and county People's Courts in accordance with the Ordinance on Procedures for Resolving Civil Cases in 1989. From January 1, 2005, the procedure for resolving marriage and family cases was applied according to the 2004 Civil Procedure Code (amended in 2011, effective from January 1, 2012).

The settlement and trial of marriage and family cases by the District and County People's Courts has a large number of cases, accounting for the majority in the entire province and city. If

If the ADPL is accurate, the case result will not be appealed or protested according to the appellate and supervisory procedures, or the case will not be dragged on for a long time, limiting the overload of the higher court, as well as the filing of lawsuits at higher levels.

In marriage and family cases, disputes that must be brought to trial after unsuccessful conciliation are mainly property disputes after divorce and disputes over child custody and parental recognition. If the conciliation stage is done well, the number of cases that must be brought to trial will be limited, avoiding wasting time and money for the State in the costs of trial and enforcement later.

When bringing a case to trial, the Judge must follow the steps as stated above. Regarding the content of the case, the Trial Panel must carefully prepare the content to be asked, how to ask, what content to ask first, what content to ask later. During the questioning process, it is necessary to ensure objectivity, while complying with the legal order of questioning procedures at the trial, debate at the trial, deliberation and sentencing.

* ADPL activities follow the first-instance procedures of the People's Court of the province or centrally-run city.

Some marriage and family cases under the jurisdiction of the provincial People's Court are stipulated in the Civil Procedure Code:

Disputes... involving parties or assets abroad, requiring judicial entrustment to a Vietnamese consular agency abroad, or entrustment to a foreign court, are not within the jurisdiction of the district court [33, Article 33, Clause 3].

Civil Procedure Code: “ The provincial People's Court has the authority to resolve at first instance the cases under the jurisdiction of the district People's Court, the provincial People's Court takes them up for resolution ”, [33, Article 34, Clause 2]. This is also the first court of first instance to hear the Marriage and Family case under its jurisdiction.

Applying the law in resolving marriage and family cases in Hanoi - 5

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