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Practical Application of Current Procedural Law Provisions on Civil Court Fees

Chapter 3

PRACTICAL APPLICATION AND RECOMMENDATIONS FOR IMPROVEMENT

PROVISIONS OF VIETNAMESE CIVIL PROCEDURE LAW ON CIVIL COURT FEES


3.1. PRACTICAL APPLICATION OF CURRENT PROCEDURE LAW REGULATIONS ON CIVIL COURT FEES

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3.1.1. On the level of civil court fees at first instance

Although the current law still has some shortcomings in the regulations on the level of court fees in cases with and without thresholds. However, it has also explained quite clearly the types of court fees, civil cases with thresholds and civil cases without thresholds. The problem still exists in the actual application to resolve civil cases, some courts still believe that the above explanation is not really clear and thorough, so when applied, it is still not consistent.

Practical Application of Current Procedural Law Provisions on Civil Court Fees

For example: In the Decision on recognition of consensual divorce and agreement of the parties No. 56/2009 of the People's Court of Luc Nam district, Bac Giang, the agreement on the division of the common property of the couple between Mr. Nguyen Van T and Ms. Nguyen Thi H was recognized. Accordingly, the Court assigned Ms. Nguyen Thi H to manage and use 90 square meters of land, the 2-storey house and all other assets in the house, and Ms. H must pay Mr. T 120,000,000 VND for the difference in property value. Regarding court fees, the Court recognized that the parties must pay 200,000 VND in first-instance civil court fees because it considered that the parties' request was only to request the Court to record the parties' agreement on the division of property, but there was no dispute for the Court to divide, and there was no request from the parties for property valuation. Thus, although the litigant's request is for a sum of money or property that can be determined by a specific sum of money, the Court still calculates court fees according to the case without a threshold.

In a similar case, in the decision to recognize the consensual divorce and the agreement of the parties No. 82/2010 dated September 23, 2010 of the People's Court of Luc Nam district, Bac Giang, the consensual divorce and the agreement of the parties between Mr. Nguyen Huu D and Ms. Tong Thi T were recognized. Accordingly, regarding the common property, although the parties had agreed to resolve the entire case, the Court only requested that the Court record the agreement of the parties. However, the Court still required the parties to agree on the value of assets such as land, houses, trees, etc. to serve as the basis for calculating court fees. Specifically, the parties agreed on the value of the property of 272,700,000 VND, which is the amount of property that Mr. D owns, and Ms. T owns the amount of property worth

33,000,000 VND. From the above agreement, the Court decided that Mr. Nguyen Huu D must pay 6,805,000 VND, and Ms. Tong Thi T must pay 825,000 VND in first-instance civil court fees. Thus, the Court determined that the above case is a case with a threshold value for calculating court fees.

The two specific cases above demonstrate that the law has stipulated the above issue quite clearly, however, in reality, the Court applies it to resolve a civil case with similar content, but the way to determine whether the case has a threshold or not and the amount of civil court fees that the litigant must pay are completely different. This is a reality that needs guidance so that the Court can apply the law consistently.

3.1.2. Regarding the subject of paying court fees and advance court fees

As analyzed in Chapter 2, the law stipulates that the plaintiff, the defendant who has a counterclaim against the plaintiff, and the person with related rights and obligations who has an independent request must pay an advance payment of court fees. In which, the person with related rights and obligations who has an independent request will participate in the proceedings in three cases: (1) The person with related rights and obligations makes a request himself. In this case, if the person with related rights and obligations does not submit to the Court the receipt for the advance payment of court fees, the Court will not resolve the request of the person with related rights and obligations.

They. (2) They participate in the proceedings at the request of other parties and are accepted by the Court. (3) They participate in the proceedings at the request of the Court. In these two remaining cases, although they are persons with related rights and obligations, they do not have an independent request, so in principle they will not have to pay advance court fees and the Court will resolve the case according to the prescribed legal procedures. However, on this issue, there are currently different views when applying it to practical implementation.

In the divorce case between Mr. H and Mrs. C, both of them requested the Court to divide the property and both of them declared that they owed the HS credit institution the sum of fifty million VND (50,000,000 VND) with mortgaged houses and land use rights. The Court resolving this case invited the HS credit institution to participate in the proceedings as a person with related rights and obligations and requested the credit institution to pay an advance court fee for the sum of 50,000,000 VND. The HS credit institution refused to participate in the proceedings and did not file a request for the Court to resolve and force Mr. H and Mrs. C to pay 50,000,000 VND but did not provide a reason for the refusal. As a result, the Court could not resolve the case within the time limit prescribed in the Civil Procedure Code, just because it waited for the HS credit institution to pay an advance court fee [1, p. 29].

According to the author, the failure of the Court of First Instance to resolve the case within the time limit prescribed by the Civil Procedure Law due to waiting for the HS credit institution to pay the advance court fee is the Court's fault, and this fault is a mistake in understanding the law. If the credit institution had refused, the Court would not have resolved the related content. This confusion is due to the Court's handling of the matter. Current law has specifically stipulated in Clause 1, Article 130 of the Civil Procedure Code and in Clause 1, Article 25 of the Court Fees and Charges Ordinance, which stipulates that only those with related rights and obligations who have independent requests must pay the advance court fee. In cases where those with related rights and obligations participate in the proceedings but do not have independent requests, they do not have to pay the advance court fee. In the Civil Procedure Code

There is no provision that allows the Court to wait indefinitely for a person with related rights and obligations who refuses to participate in the proceedings to pay an advance payment of court fees. This is a reality that needs to be overcome by the Courts in the practical application of procedural law provisions.

3.1.3. Regarding the obligation to pay court fees in specific cases

3.1.3.1. Regarding the obligation to pay court fees in disputes over claiming lent or rented property

According to the provisions of Clause 1, Article 17 of Resolution No. 01/2012/NQ-HDTP:

For disputes over claims for lent or rented property, the parties must pay the first-instance civil court fees as in civil cases without a threshold. In cases where, in addition to disputes over claims for lent or rented property, the parties also have disputes over compensation for damages and request the Court to resolve them, the parties must pay the non-threshold court fees for disputes over claims for lent or rented property and the threshold court fees for claims for compensation for damages [26].

Thus, in the case of a dispute over a claim for lent or rented property and the parties have no other requests, the court fee is determined by the civil case without a threshold, which is 200,000 VND. Legally, this amount is too low compared to the cost that the Court spends to resolve this type of case. In addition, in the case of a dispute over compensation for damages, the court fee is determined by the threshold case.

Although the obligation to pay court fees in this case has been specifically regulated in Resolution No. 01/2012, in practice, there has been inconsistency between local courts in calculating first-instance civil court fees in house repossession lawsuits: One court calculates court fees based on cases without a threshold, while another calculates them based on cases with a threshold, leading to a huge difference in the amount the losing party must pay.

For example: In February 2010, Ms. TTM bought a house from Mr. NVK in Nha Trang city (Khanh Hoa) for 2 billion VND. Ms. M completed the transfer procedures and was granted a pink book by the Nha Trang City People's Committee. Because the transfer time was near Tet, Mr. K asked Ms. M to let him stay for a while, and when Ms. M needed it, he would move elsewhere and return the house. However, when Ms. M asked to move out, Mr. K refused. With no other choice, Ms. M had to file a lawsuit with the Nha Trang City People's Court to reclaim the house.

Determining that this was a property claim case with no threshold value, the court required Ms. M to pay an advance court fee of VND 200,000. The Nha Trang City People's Court brought the case to trial, accepted Ms. M's request, and forced Mr. K to return the house. Regarding the court fee, the court ordered Mr. K to pay

200,000 VND.

In contrast to the above case, a court determined that a similar house claim lawsuit was a lawsuit with a threshold value and calculated court fees as a percentage of the value of the disputed property.

Specifically, Ms. TM (a Vietnamese Canadian) bought the house from Ms. TTL's family. The transaction was completed but Ms. L's family refused to hand over the house, so Ms. M filed a lawsuit with the People's Court of Khanh Hoa province. Upon accepting the case, the People's Court of Khanh Hoa province conducted an appraisal and determined the value of the house to be more than 16 billion VND. On November 16, 2012, the court brought the case to trial and ordered Ms. L to return the house to Ms. TM. Regarding court fees, the court determined that this was a civil lawsuit with a threshold value, so the co-defendants were required to pay more than 120 million VND [16].

Or in another case, in February 2010, Mr. H bought a three-story house with a 65-square-meter plot of land from Ms. B in Van Loc commune, Hau Loc district, Thanh Hoa province for 600 million VND, paid in full, and was certified by the People's Committee of Van Loc commune. Because he did not need to move in immediately, Mr. H lent the house to Ms. B to stay temporarily, agreeing to take it back when needed. Later, when he needed the house, Ms. B refused to hand it over, forcing him to file a lawsuit.

Determining that the lawsuit was a case without a threshold, Hau Loc District People's Court requested Mr. H to pay 200,000 VND in advance court fees. On June 15, 2010, the court of first instance ordered Ms. B to return the disputed land and house to Mr. H. In addition, Ms. B must pay 200,000 VND in court fees.

The above judgment was appealed by the Thanh Hoa Provincial People's Procuracy, claiming that the first instance court incorrectly determined the amount of court fees that Ms. B had to pay. According to the Procuracy, this was a civil case with a threshold value, the disputed property was worth 600 million VND, so the first instance civil court fee should be 28 million VND (20 million VND + 4% of the value of the disputed property exceeding 400 million VND) [16].

The above practice shows that, although the Supreme People's Court has provided specific guidance in Resolution No. 01/2012, in order to overcome errors in practical application, training is needed for the team of people working in adjudication to avoid errors in determining court fees for each case. Because if there are errors in determining court fees, not only will the legitimate rights of the litigants be violated, the law will be misapplied and vice versa, many cases will cause loss of money to the budget.

3.1.3.2. Regarding the obligation to pay court fees in marriage and family cases with disputes over common property and common debts of spouses upon divorce

Practical application shows that due to the provisions on the common property regime, the separate property of husband and wife, the law on marriage and family and the civil law still have many shortcomings. The objective condition that needs to be mentioned is that Vietnamese families still have many generations living in the same house (three generations living together, four generations living together, ...) so determining the separate property of husband and wife in resolving divorce is very difficult. In many cases, parents give their children property but when divorce occurs, they make excuses saying they do not give it and demand the property back, leading to the fact that the division of common property is often very complicated, the consequence is that the calculation of court fees is also complicated. According to author Cao Van Tinh: in the case where parents file a lawsuit to reclaim the property given to their children, the Court has dismissed the lawsuit and forced

They have to pay the court fees for the part of the request that the Court does not accept. Thus, on one part of the property, two people have to pay the court fees.

A specific example is the divorce case between the plaintiff, Ms. Le Thuy H, and the defendant, Mr. Nguyen Hong B, requesting the People's Court of LS City to resolve "divorce, dispute over division of common property, common debt of husband and wife upon divorce". Regarding common property: Ms. H and Mr. B both admitted that they had jointly created many assets including houses, land... with a total value of 1 billion VND. Regarding common debt: Both Ms. H and Mr. B also admitted that they owed Ms. C, Mr. D, and Ms. E 200 million VND each. However, the creditors refused to participate in the proceedings, only requesting the Court to assign the responsibility for debt repayment to Ms. H or Mr. B or both Ms. H and Mr. B so that they have a basis to claim the debt when these debts are due.

In current practice, when resolving disputes over common property and common debts of spouses during divorce as in the above case, the Courts have two ways of understanding and applying the law as follows:

Method 1: Ms. H and Mr. B have agreed on the total value of the common assets and have contributed equally, so the total value of the common assets of the couple is determined to be 1 billion VND, each person is divided into assets worth 500 million. Regarding the common debt: Assign responsibility to Ms. H to pay the debt to Mrs. C, Mr. D each 200 million VND when these debts are due and Mr. B is responsible for paying the debt to Ms. E 200 million VND when this debt is due. Mr. B pays the difference in the amount of common debt to Ms. H 100 million VND. Because Ms. H and Mr. B have a total common debt of 600 million VND, after deducting this common debt, the total value of the couple's assets is 400 million VND, corresponding to each person receiving 200 million VND. Therefore, the court fee for dividing the property that each person must pay is 200 million x 5% = 10 million VND [7].

Those who hold this view believe that: When resolving a divorce, if the plaintiff, defendant and creditor agree that there is a common debt, regardless of whether the debt is due or not and the creditor participates,

Whether the Court decides to sue or refuse to participate in the proceedings, it must determine: Take the total value of the common property minus all the common debts, the remaining amount must be divided in half for each party, and at the same time consider it the value of the property they actually enjoy and this value is used as the basis for calculating court fees because Clause 2, Article 131 of the Civil Procedure Code clearly stipulates that "... each party must pay the first instance court fee corresponding to the value of the property they enjoy ". Accordingly, Ms. H and Mr. B each only have to pay 10 million VND in court fees corresponding to the value of the property that each person actually enjoys, which is 200 million VND.

Second method: Determine that Ms. H and Mr. B have a total common asset value of 1 billion VND. Because no creditor has an independent claim in the case, the total value of the common asset of the couple that the Court must divide is 1 billion VND, each person is divided assets with a total value of 500 million VND. Regarding the common debt: assign responsibility to Ms. H to pay the debt to Ms. C and Mr. D each 200 million VND when these debts are due and Mr. B is responsible for paying the debt to Ms. E 200 million VND when this debt is due. Mr. B pays the difference in the amount of common debt to Ms. H of 100 million VND. Because the creditors do not have an independent claim and the Court does not resolve to force Ms. H and Mr. B to pay the common debt in this case, the value of the common asset that each person is divided is 500 million VND. Therefore, the court fee for dividing the property that each party must pay is 20 million + 4% x 100 million = 24 million [7].

Those who hold the second view argue that: Because no creditor has an independent claim, when dividing the common property of Ms. H and Mr. B, the common property still has a total value of 1 billion VND and in fact each person has been divided 500 million. This shows that, at the time the Court decided, in fact, Ms. H and Mr. B each divided and enjoyed 500 million VND, correspondingly each person must pay 24 million VND in court fees for dividing the common property, which is consistent with Clause 7, Article 27 of the Ordinance on Court Fees and Charges; Clause 1, Article 13 of Resolution No. 01/2012/NQ-HDTP dated

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