If the request is not accepted, the Judge shall immediately issue a decision to apply temporary emergency measures. If the request is not accepted, the Judge shall notify the requester in writing and state the reasons.
At the trial of a marriage and family case, the Trial Panel received a request for temporary emergency measures. The Trial Panel reviewed the request and the accompanying evidence, asked for the opinions of the applicant and the person requested to apply temporary emergency measures, discussed and approved in the courtroom. In case of acceptance but the applicant does not have to implement security measures, the Trial Panel immediately issued a decision to apply temporary emergency measures; In case of acceptance but the applicant must implement security measures, the Trial Panel immediately issued a decision to apply temporary emergency measures when they presented evidence that the security measures had been implemented; In case of rejection, the Trial Panel did not issue a decision and publicly announced the rejection at the trial, clearly stating the reasons and recording it in the minutes of the trial.
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However, in some cases
to ensure civil rights according to law
The Hanoi People's Court may decide to apply, change or cancel emergency measures in accordance with the provisions of law. In addition to having to comply with the provisions of the relevant articles of the Civil Procedure Code, the Hanoi People's Court has based on the provisions of relevant laws to make correct decisions.
temporary emergency measures to ensure the right of the party to request
food
porch
effectively
as effectively as possible. The application, change, and cancellation of measures
Temporary emergency orders made before the opening of a trial of a marriage and family case shall be considered and decided by a Judge, and at the trial of a marriage and family case shall be considered and decided by a Trial Panel.
On ensuring the right to request changes in Judges, People's Assessors, Prosecutors, Court Clerks, Experts, and Interpreters
According to the provisions of Article 16 of the Civil Procedure Code, those who conduct or participate in civil proceedings include: Chief Justice of the Court, Judge, People's Juror, Court Secretary, Chief Prosecutor, Prosecutor, and other persons.
interpreters, experts. Those who conduct proceedings and participate in civil proceedings help the court clarify the issues of marriage and family cases, those issues are done through their duties and powers during the proceedings.
The activities of litigants and participants in litigation are aimed at helping the court resolve civil cases, protecting the legitimate rights and interests of the litigants, and ensuring social justice. Therefore, in the process of participating in and conducting litigation, they must be impartial while performing their duties, ensuring the principle of impartiality of litigants and participants in litigation as prescribed by law. However, in cases where litigants request to change Judges, People's Assessors, Prosecutors, Court Clerks, experts, and interpreters because there are grounds to believe that they cannot be impartial when participating in the trial of marriage and family cases, if the litigants' requests are in accordance with Articles 46 and 47 of the Civil Procedure Code, the Chief Justice of the City People's Court shall issue a decision to change the litigants or the litigants may refuse to participate in the trial of marriage and family cases.
In recent years, in the trial of marriage and family cases, in order to ensure uniform application, it has contributed to raising awareness and responsibility of Judges, People's Assessors, Court Secretaries in carrying out litigation activities, improving the quality of trials to ensure citizens' rights in the trial of marriage and family cases. In cases of adjournment of the trial due to changes in the person conducting the proceedings, it must be confirmed by the Deputy Chief Justice in charge of the unit based on the Judge, the presiding judge of the trial with a "Adjournment of the trial slip" stating the reason for the adjournment and at the same time predicting or scheduling a retrial date. Therefore, at the Hanoi People's Court, there is no longer a situation of indiscriminate adjournment of the trial, violating citizens' rights as well as affecting the quality of trials of marriage and family cases.
On ensuring the right to participate in court sessions and meetings of the litigants
The trial and meeting of a marriage and family case is where the Court considers and resolves the issues of the case. At the trial and meeting, the parties have the right to present the issues of the marriage and family case and to participate in the debate.
to disclose details and events related to the protection of one's rights and interests. To ensure the protection of the litigant in civil proceedings, the Hanoi People's Court has ensured the presence of the litigant in the trial and meeting; at the trial and meeting, the litigant's right to present, ask questions and debate must be guaranteed.
In the trial of a marriage and family case at the Hanoi People's Court, in case the litigant is absent for the first time without a request for absence or adjournment of the trial in accordance with regulations, the Hanoi People's Court will issue a valid summons for the first time, and the plaintiff must be present. If the plaintiff is absent, the trial panel will adjourn the trial, unless that person has a request for trial in absentia. The Hanoi People's Court has notified the litigant, the representative, and the person protecting the litigant's legal rights and interests of the adjournment of the trial.
Accordingly, the summoning of litigants in marriage and family cases is carried out by the Hanoi City People's Court in accordance with the provisions of the law on civil proceedings such as through service procedures, direct notification, by post or by an authorized third party, public posting or announcement on the mass media.
In case the court has properly summoned the parties but they cannot attend the trial for legitimate reasons, they can submit a request and documents proving legitimate reasons to request a postponement of the trial to the Hanoi City People's Court for the judge assigned to handle the case to consider and decide. In case the plaintiff is absent for the second time, the City People's Court will issue a second valid summons, the plaintiff must be present at the trial, if the absence is not due to force majeure, the absent plaintiff will be considered to have abandoned the lawsuit and the City People's Court will issue a decision to suspend the settlement of the case for that person's lawsuit request, unless that person has a request for trial in absentia. The plaintiff has the right to re-file the lawsuit, if the statute of limitations for filing the lawsuit is still valid.
On ensuring the right to debate in civil proceedings
To enhance innovation in litigation procedures at court as well as ensure citizens' right to debate at court in the settlement of marriage cases.
In order to protect the rights and interests of individuals and families, the Hanoi People's Court has coordinated with the Hanoi People's Procuracy to issue the Regulations on coordination between the Court and the Procuracy at two levels in resolving various types of cases and in managing, directing and operating. On that basis, many model trials of marriage and family cases have been coordinated and organized at the Hanoi People's Court, with the participation of Judges and Prosecutors of two branches. During the litigation process, the Trial Panel listens to the arguments from both sides, the prosecution and the defense, ensuring that the litigants and those with related rights and obligations are able to present their views to protect their legitimate rights and interests. Ensuring the right to equality between litigants and participants in the proceedings in presenting evidence and expressing opinions to determine objective truth; ensuring the highest right of litigants to request changes in litigants and participants in the proceedings; ensure the right to agree with each other on settlement as well as ensure the right to participate in court sessions and meetings of the parties.
On ensuring the right of litigants to appeal against illegal decisions and procedural acts
Implementing the motto of "Must be close to the people, understand the people, help the people, learn from the people" and to promptly resolve the people's petitions and requests, the Hanoi People's Court has proposed many measures to effectively carry out the work of receiving people and resolving complaints and denunciations. The Hanoi People's Court has arranged 01 room for receiving people, posting the schedule for receiving people and the rules for receiving people. The Chief Justice of the Hanoi People's Court has issued documents guiding the work of receiving people in the Notice of Conclusion of the Meeting No. 1713/TB - VP dated October 29, 2012 and Official Dispatch No. 1776/TA - VP dated November 7, 2012 on continuing to improve the quality of receiving people: requiring leaders of units to schedule monthly receiving people and send the schedule 10 days in advance to the Office of the City Court to report to the Chief Justice to arrange time to attend and conduct surprise inspections. Establish a citizen reception book, count the number of monthly citizen receptions, and immediately report complicated complaints. The Chief Justice directly or authorizes 01 Deputy Chief Justice to receive citizens and resolve complaints and denunciations. The Chief Justice requests
Leaders of units must regularly direct and inspect cadres assigned to receive citizens to strictly comply with the time limit, order and procedures for handling complaints and denunciations according to the provisions of the Law on Complaints, the Law on Denunciations, the Criminal Procedure Code, the Civil Procedure Code, the Administrative Procedure Law, ensuring the legitimate rights and interests of the State, organizations and people, and not causing trouble to the people.
Through the work of handling complaints and denunciations, the Chief Justice of the Hanoi People's Court has directed units to promptly learn from experience and improve their responsibilities in order to avoid shortcomings in judicial administrative activities and in the process of conducting proceedings.
After completing the trial stage of marriage and family cases, at the end of the trial stage, ensuring citizens' rights is to ensure the right to obtain an extract of the judgment; the right to protest and appeal the judgment; the right to complain and denounce the court's trial of marriage and family cases. The City People's Court has deployed the application of information technology in management activities.
Digitizing judgments by scanning more than 53,400 judgments from 1990 to the end of 2013, facilitating the storage, exploitation, search and issuance of copies of judgments to agencies, organizations and citizens [47, p.7].
On ensuring the right to authorize lawyers, people's defenders or other persons to represent in civil proceedings
The provision of legal services by lawyers to individuals and legal aid activities in Hanoi City in recent years has increased in both quantity and quality, contributing to the active protection of justice, rights and legitimate interests of citizens and businesses, actively serving the judicial reform, contributing to the creation of a favorable legal environment to promote investment, business and trade activities in the context of international integration while ensuring that citizens can ask others to protect their rights when participating in court proceedings in general and in the trial of marriage and family cases in particular.
Currently, in Hanoi, according to the report of the Hanoi Department of Justice, Hanoi currently has 356 law practice organizations and 18 branches, of which 25 are law practice organizations.
Foreign lawyers to ensure legal advice and support services for local people [50, p.10].
However, in the resolution of marriage and family cases compared to civil disputes, criminal cases, etc., the participation of citizens in the form of authorization for lawyers is often less. Citizens only seek help from lawyers in complicated marriage and family cases, usually disputes over property or joint child custody.
Example : Trial of the divorce case No. 101/2012/HNGD-PT dated August 15, 2012, according to the decision to bring the case to trial No. 844/2012/QDXX-PT dated September 19, 2012 of the Hanoi City People's Court. Plaintiff: Mr. Phan Chi Thanh, born in 1968. Defendant: Ms. Pham Thi Minh Thao, born in 1971. Both residing at: No. 21, Ngo 61/44 Tran Duy Hung, Cau Giay, Hanoi. The person protecting the legal rights and interests of Ms. Thao: Ms. Nguyen Thi Hang Nga - Lawyer of Hang Nga Law Office, Hanoi City Bar Association.
Case content :
Mr. Phan Chi Thanh and Ms. Pham Thi Minh Thao got married on the basis of voluntary understanding and registered their marriage on November 12, 1993 at the People's Committee of Dong My Commune, Thanh Tri District, Hanoi City. After getting married, they lived in many places in Hanoi City and since 2001, they have lived stably at No. 21, Alley 44/61 Tran Duy Hung, Trung Hoa Ward, Cau Giay, Hanoi. During nearly 20 years of living together, the couple often had conflicts. Therefore, Mr. Thanh filed for divorce at the People's Court of Cau Giay District.
At the first instance trial, Mr. Thanh asked for a divorce, Ms. Thao did not agree.
Regarding their children, they agreed to give their two children to Mr. Thanh to take care of and raise. Regarding the house and land, Ms. Thao asked to divide them in kind. The People's Court of Cau Giay District ruled: Accepting the lawsuit of Mr. Phan Chi Thanh. Granting Mr. Phan Chi Thanh a divorce from Ms. Pham Thi Thanh Thao.
Regarding the common child: Record the agreement between you and Mr. Phan Chi Thanh to directly raise Phan Ba Hai Trieu, born on August 17, 1995 and his child.
Phan Ba Thuy Tien, born August 17, 1995. Temporarily exempt from child support for Ms. Thao because Mr. Thanh did not request it. Neither party is allowed to prevent the right to see and care for the child.
Regarding the common property which is real estate: Assign to Mr. Phan Chi Thanh the ownership and use of the house and land at No. 21, Ngo 44, Do Quang Street, Group 41, Trung Hoa Ward, Cau Giay, Hanoi and is responsible for paying Ms. Thao the amount of 4,254,610,460 VND immediately after the judgment comes into legal effect.
Disagreeing with the first instance judgment No. 12/2012 dated May 25, 2012 of the People's Court of Cau Giay District dated June 4, 2012. Ms. Pham Thanh Thao filed an appeal on June 11, 2012, paid the appeal fee and requested to raise the common child, and requested to divide the land and house in kind.
Feeling unable to protect her own rights, Ms. Pham Thanh Thao asked Ms. Nguyen Thi Hang Nga - Lawyer of Hang Nga Law Office, Hanoi Bar Association for assistance. After studying the file and listening to Ms. Thao's presentation, the Lawyer contacted the relevant authorities to collect evidence and prove to ensure Ms. Thao's rights. At the Court of Appeal, the Lawyer presented the appeal and Ms. Thao's opinion to withdraw the appeal request regarding feelings and common children, requesting the panel of judges to divide the first and second floors of the house in kind for her and requesting to divide 2/3 of the land use rights and 1/2 of the house ownership rights. The lawyer protecting Ms. Thao's legitimate rights and interests presented arguments and requested the panel of judges to base on Article 95 of the Law on Marriage and Family to divide the common property of spouses to Ms. Thao 2/3 of the house in kind.
After studying the records of the Hanoi City People's Court, at the appeal trial, the Trial Panel issued Judgment No. 01/2013/HNGD - PT on the family marriage dispute with the following content: Amending the first instance divorce judgment No. 12/2012/LHST dated May 25, 2012 of the People's Court of Cau Giay District - Hanoi. Accepting the appeal of Ms. Pham Thi Minh Thao regarding the request to divide the house at No. 21, Ngo 44, Do Quang Street, Group 41, Trung Hoa Ward, Cau Giay, Hanoi, dividing in half, each party will receive 4,254,610,460 VND. Divided in kind: Mr. Phan Chi Thanh is entitled to own and use the house.
using the entire area of 02 rooms on the second floor. Ms. Pham Thi Thanh Thao is allowed to use and own the entire area of 02 rooms on the third floor. The area of the first floor is the kitchen and garage along with the entire staircase, common walkway, terrace area, shared by both sides.
Thus, the above case has demonstrated the role and position of Lawyers in the entire process of resolving the marriage and family dispute case of Ms. Thao and Mr. Thanh. In particular, through practice, it has been shown that marriage and family cases with the participation of Lawyers have a more lively debate in court, the trial activities also bring better quality and the conflicts of the parties are resolved more thoroughly. This also shows that the Hanoi People's Court always focuses on ensuring the civil rights of citizens in the trial of marriage and family cases.
On ensuring the right of litigants to be represented in civil proceedings
Regarding the guarantee of the right to seek protection of the legitimate rights and interests of the litigant. In recent years, our State has regularly paid attention to promoting legal aid activities. Along with the establishment of legal aid funds are the activities of free legal aid centers managed and directed by the Department of Justice. Up to now, this activity has been expanded to all political-social and socio-professional organizations such as the Lawyers Association, the Women's Union, etc. to ensure the legitimate rights and interests of citizens as well as to ensure the rights of citizens in the trial of marriage and family cases.
In Hanoi, with the aim of protecting the legitimate rights and interests of citizens in general and ensuring citizens' rights in the trial of marriage and family cases in particular, promoting the effectiveness of legal aid centers, the Bar Association, and the Women's Association is always of interest. Regarding the team of lawyers, law practice organizations continue to be interested in developing according to the orientation of the Strategy for the Development of the Lawyers' Profession to 2020. At the same time, promoting the effectiveness of free legal aid centers contributes significantly to ensuring the implementation of the right to initiate for poor litigants and political subjects.