First Instance Court Hearing to Resolve Loan Contract Dispute

Decision to suspend the settlement of the case

The Court shall issue a Decision to suspend the settlement of the case according to the provisions of Article 217 of the 2015 Civil Procedure Code. Accordingly, a loan contract dispute case will be suspended when the plaintiff or defendant is an individual who has died and no heir to their rights and obligations can be found. An agency or organization is dissolved or bankrupt without any agency, organization or individual inheriting the procedural rights and obligations of that agency, organization or individual [15] . Or in the case where the plaintiff withdraws the entire lawsuit request or the plaintiff has been properly summoned for the second time but is still absent without a valid reason and has not submitted a request for trial in absentia. In addition to the cases stipulated herein as inherited from Article 192 of the 2004 Civil Procedure Code, the 2015 Civil Procedure Code also changes and supplements many other cases of suspension of settlement of the case, in which the loan contract dispute case will be suspended, such as:

- In case the plaintiff does not pay the advance for property valuation costs and other litigation costs as prescribed. In case the defendant has a counterclaim, the person with related rights and obligations has an independent request not to pay the advance for property valuation costs and other litigation costs as prescribed in Point d, Clause 1, Article 217 of the 2015 Civil Procedure Code, the Court shall suspend the settlement of the loan contract dispute. This provision is supplemented by the 2015 Civil Procedure Code and is extremely reasonable and has practical significance in adjudication. This provision is intended to bind the parties responsible for performing their litigation obligations so that the Court has a basis to resolve the case, on the basis of respecting the parties' right to decide and determine. When they do not perform their litigation obligations for the case to be resolved, the Court implicitly understands that they have actively refused to have the Court protect their legitimate rights and interests related to their request in the case.

- In case the litigant requests to apply the statute of limitations before the Court of First Instance issues a judgment or decision to resolve the case and the statute of limitations for filing a lawsuit has expired as prescribed in Point e, Clause 1, Article 217 of the 2015 Civil Procedure Code.

The statute of limitations for a loan contract dispute is two years [27] , the statute of limitations for filing a lawsuit on the principal debt of the loan contract does not apply to the statute of limitations for filing a lawsuit, while the interest arising on the loan contract has a statute of limitations of two years [20] . The Court does not proactively consider whether the statute of limitations for filing a lawsuit has expired or not to suspend the settlement of the case. Only when the litigant requests a suspension because the statute of limitations for filing a lawsuit has expired will the Court consider the statute of limitations for filing a lawsuit to suspend the settlement. In case the litigant does not request, even though the statute of limitations for filing a lawsuit on the loan contract has expired, the Court will still try the case and not suspend it. This provision is completely different from the previous provision of the 2004 Civil Procedure Code. Point h, Clause 1, Article 192 of the 2004 Civil Procedure Code stipulates that when the statute of limitations for filing a lawsuit has expired, the Court must suspend the settlement of the case, regardless of the litigant's request. The change and addition of this provision aims to respect the right of self-determination of the parties, limit administrative intervention of the Court's power, so that the Court can properly exercise its responsibilities and judicial powers as prescribed in the 2013 Constitution.

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- During the preparation phase for the first instance trial, if the plaintiff withdraws the entire lawsuit request or has been summoned for the second time but is still absent without a valid reason and does not request a trial in absentia, and at the same time the defendant withdraws the entire counterclaim, the person with related rights and obligations withdraws the entire independent claim, the Court shall issue a Decision to suspend the settlement of the case, remove the case from the case register and return the lawsuit, together with evidence and documents. The suspension decision in this case may be appealed or protested according to the appellate procedure; if the defendant does not withdraw or only partially withdraws the counterclaim, the Court shall issue a Decision to resolve the plaintiff's lawsuit request, at which point the plaintiff becomes the defendant, the defendant becomes the plaintiff; if the defendant withdraws the entire counterclaim, the person with related rights and obligations does not withdraw or only partially withdraws the independent claim, the Court shall issue a Decision to suspend the settlement of the plaintiff's lawsuit request, the request

In this case, the defendant's counterclaim makes the person with related rights and obligations the plaintiff, and the person sued under the independent request becomes the defendant. Decisions to suspend settlement in this case cannot be appealed or protested according to the appellate procedure.

- For a loan contract dispute case that is retried under the first instance procedure after a final judgment or retrial decision is made, if the Court decides to suspend the settlement of the case, the Court must simultaneously resolve the consequences of the execution of the judgment and other related issues (if any); in the case where the plaintiff withdraws the lawsuit and has been duly summoned for the second time but is still absent, the suspension of the settlement of the case must have the consent of the defendant, the person with related rights and obligations. According to the provisions of Clause 4, Article 217 of the 2015 Civil Procedure Code, this is a completely new provision compared to the 2004 Civil Procedure Code. However, this provision is difficult to apply in practice, because the legislative language in this provision leads to inconsistent understanding in the trial because it is impossible to determine what the consequences of the execution of the judgment are here.

Decision to bring the case to trial

The Court shall issue a Decision to bring a loan contract dispute to trial when the conciliation fails and there is no basis to temporarily suspend or adjourn the case. The judge assigned to resolve the case shall have the authority to issue a Decision to bring the case to trial. The Decision to bring the case to trial must have full contents as prescribed in Clause 1, Article 220 of the 2015 Civil Procedure Code. The Decision to bring the case to trial must be sent to the parties and the People's Procuracy of the same level within 3 working days from the date of issuance of the Decision.

In case of receiving a request to change the litigants or participants in the proceedings before the opening of the trial, depending on the case, the Chief Justice of the Court or the Chief Prosecutor will consider and decide.

2.3. First instance trial to resolve loan contract disputes

In principle, the first instance trial of the loan contract dispute case

conducted like other first-instance civil trials prescribed in Chapter XIV, including 47 Articles from Article 222 to Article 269 of the Civil Procedure Code. Accordingly, the first-instance trial of a loan contract dispute is conducted according to the procedures of starting the trial, arguing at the trial, deliberation and sentencing. Compared to the 2004 Civil Procedure Code, the procedural order from starting the trial, questioning at the trial, arguing at the trial and finally deliberation and sentencing. The 2015 Civil Procedure Code stipulates that the first-instance procedure has many differences in both content and form compared to the 2004 Civil Procedure Code.

According to the 2015 Civil Procedure Code, the first step is to open the trial, the presiding judge opens the trial and reads the Decision to bring the case to trial and considers the necessary and sufficient conditions for conducting the trial regarding the presence of the parties, the person protecting the rights and legitimate interests of the parties, witnesses, experts, and prosecutors as prescribed in Articles 227 to 232 of the 2015 Civil Procedure Code. Then, the Council asks the parties about changing, adding, withdrawing requests for consideration or reaching an agreement with each other. The parties' agreement and negotiation to resolve disputes at all stages of civil proceedings is encouraged by the State. The decision to recognize the parties' agreement on resolving the case is made in writing and takes effect immediately.

In the opening procedure of the trial, two additional contents must be performed by the presiding judge: The presiding judge requires the witness to commit to testifying truthfully, and if he/she does not testify truthfully, he/she will be held legally responsible, except in the case of minors; requires the expert and the interpreter to commit to providing accurate appraisal results and interpreting the content that needs to be interpreted correctly. In civil proceedings, witnesses, experts and interpreters are other participants in the proceedings, they do not have rights and interests directly related to the case. However, they play a very important role in assisting the Court and the parties in determining the objective truth of the case and protecting their legitimate rights and interests. Therefore,

They need to be clearly aware of their responsibilities before the law and before the Court when participating in litigation. The 2015 Civil Procedure Code adds these two provisions, which is absolutely necessary, so that they can truly realize their role, thereby thinking and performing litigation responsibly. Article 232 adds a new provision compared to the provision in the 2004 Civil Procedure Code, amended and supplemented in 2011, that the Prosecutor assigned to the trial "if the Prosecutor is absent, the Trial Panel will still proceed with the trial, without postponing the trial". This new provision is reasonable because in reality, many first-instance trials have had to be adjourned due to the absence of the Procuracy. In addition, the provision that it is not mandatory for a representative of the Procuracy to participate in first-instance trials does not eliminate or limit the right to supervise judicial activities of the Procuracy. The Procuracy can exercise its right to supervise through examining case files to exercise the right to protest, make recommendations or requests (as prescribed in Clause 1, Article 21). This provision is appropriate because "if the Procuracy does not participate, it is consistent with the principle of private interests that is respected in the world of litigation. If the Procuracy participates in the proceedings at the first instance civil trial only to assess the proceedings to see whether the court's judgment is correct or incorrect, it is meaningless" [44].

The debate at the first instance trial of a loan contract dispute is based on the provisions from Article 247 to Article 263 of the 2015 Civil Procedure Code. The debate at the trial of a loan contract dispute includes the presentation of evidence, questioning, answering, and expressing opinions, arguments and assessments of evidence and details of the loan contract dispute. The debate at the trial is conducted under the direction of the presiding judge. The presiding judge is not allowed to limit the debate time, creating conditions for the participants in the proceedings to present all their opinions but has the right to request them to stop presenting opinions that are not related to the case. The debate at the trial is a completely new content added in the 2015 Civil Procedure Code, which shows that the debate is a legislative viewpoint that is emphasized. Viewpoint

This is to concretize the 2013 Constitution and the 2014 Law on the Organization of People's Courts on the litigation activities of the Court, ensuring that the principle of litigation is fully and consistently implemented during the settlement process. In addition, there are some shortcomings when applying in practice. When the parties' statements, evaluation of evidence, and proposals of opinions related to the case are too long, overlapping content wastes time in the trial of the case.

In the debate at the first instance trial according to the provisions of the 2015 Civil Procedure Code, there is a procedure for suspending the trial. During the trial, the Trial Panel has the right to decide to suspend the trial when there is one of the following grounds: Due to health conditions or force majeure events, other objective obstacles that the litigant cannot continue to participate in the trial, except in cases where the litigant requests to be tried in absentia; It is necessary to verify and collect additional documents and evidence, which if not done, cannot resolve the dispute and cannot be done immediately at the trial; Waiting for the results of additional appraisal or re-appraisal; The parties request the Court to suspend the trial so that the parties can reconcile themselves. The suspension of the trial must be recorded in the minutes of the trial. The suspension period shall not exceed 01 month. The provision on suspension of a trial is a completely new provision added in Article 259 of the 2015 Civil Procedure Code. It helps to clearly distinguish the grounds for suspension from the grounds for postponing a trial to ensure consistency in trial practice.

In addition, the 2015 Civil Procedure Code has changed the regulations on the contents of statements by the Prosecutor at the court of first instance in Article 262. Accordingly, in a loan contract dispute, after the participants in the proceedings have finished their arguments and responses, the Prosecutor shall express his/her opinion on the compliance with procedural law by the Judge, the Trial Panel, the Court Secretary and the participants in the proceedings during the process of resolving the case from the time of acceptance until before the time the Trial Panel deliberates and expresses his/her opinion on the resolution.

decide the case. Immediately after the end of the trial, the Prosecutor must send a written statement of opinion to the Court to be kept in the case file. This change adds the right to the Prosecutor at the first instance trial, if the Prosecutor is absent, the Court is not required to postpone the trial as prescribed in Clause 1, Article 232 of the 2015 Civil Procedure Code. Except in cases where the Procuracy appeals. This provision aims to ensure that the trial and settlement of civil cases are quick and timely, and to promote the responsibility of the Prosecutor and the Procuracy.

The deliberation and judgment of the first instance trial of a loan contract dispute case is prescribed in Articles 264 to 269 of the 2015 Civil Procedure Code. The deliberation is the trial panel's consideration and resolution of the case based on the results of questioning and arguing at the trial, on the basis of fully and comprehensively examining the evidence and opinions of the plaintiff, defendant and those with legitimate rights and interests to issue a judgment [13]. In the deliberation part of resolving a loan contract dispute, the trial panel will base on the documents and evidence examined at the trial, the results of the argument at the trial, and the provisions of law to discuss and make a decision. In cases where the loan contract dispute case has many complicated details, the trial panel may decide on the deliberation time but not more than 05 working days from the end of the argument at the trial. The Trial Panel must notify those present at the trial and the absent litigants of the time, date and place of the verdict. During the deliberation, if it is determined that there are circumstances of the case that have not been considered, that the questioning is insufficient or that further evidence needs to be considered, the Trial Panel shall decide to resume questioning and debate.

After the verdict is passed, the Trial Panel returns to the courtroom to announce the verdict. The presiding judge or another member of the Trial Panel reads the full text of the verdict. If a party is present but absent after the deliberation, the verdict will still be announced. If a party does not know

In Vietnamese, after the verdict was announced, the interpreter translated it again.

Compared to the 2004 Civil Procedure Code, the deliberation and judgment section of the 2015 Civil Procedure Code supplements the content of the First Instance Judgment when the case has no governing law: In addition to the Court basing itself on documents and evidence examined at the trial, the results of the debate at the trial, and the provisions of law, it must also base itself on customs, analogy of law, basic principles of civil law, precedents, or fairness, to accept or not accept the requests and proposals of the litigants, the person protecting the rights and legitimate interests of the litigants, and resolve other related issues. This provision supplements the implementation of the new provision in Article 4 of the 2015 Civil Procedure Code "The Court shall not refuse to resolve civil cases for the reason that there is no applicable law" demonstrating the consistency and strictness of the 2015 Civil Procedure Code.

2.4. Practice of resolving loan contract disputes in Binh Dinh province

In recent years, the activities of resolving loan contract disputes in Binh Dinh province have made significant progress. Although the number of loan contract dispute cases over the years tends to be higher year after year, and at the same time, the complexity of the cases has also increased, the activities of resolving loan contract disputes still achieved quite good results. According to statistics of the People's Procuracy of Binh Dinh province, from January 1, 2011 to December 31, 2015, the two-level Courts accepted 8,932 cases of all kinds, resolved and tried 8,748 cases, reaching a rate of 97.94%.

In the last five years (2011-2015), the number of cases on loan contract disputes that the Court has accepted is 1,344 cases out of a total of 6,381 civil cases, reaching a rate of 21.1%. It can be seen that loan contract disputes have increased in the total number of civil cases accepted by the Court over the years, as shown in the following figures:

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