Pre-litigation interim emergency measures under Vietnamese law - 1

HANOI NATIONAL UNIVERSITY

FACULTY OF LAW

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NGUYEN VAN HAI

PROVISIONAL EMERGENCY MEASURES PRESIDENTIALLY UNDER VIETNAMESE LAW

MASTER'S THESIS IN LAW

Hanoi – 2016

HANOI NATIONAL UNIVERSITY

FACULTY OF LAW

NGUYEN VAN HAI

PROVISIONAL EMERGENCY MEASURES PRESIDENTIALLY UNDER VIETNAMESE LAW

Major : Civil Law and Civil Procedure

Code : 60 38 01 03

MASTER'S THESIS IN LAW

Scientific advisor : Dr. HOANG ANH TUAN

Hanoi – 2016

COMMITMENT

I hereby declare that this Thesis is my own research work. The results stated in this Thesis have not been published in any other work. The figures, examples and quotations in this Thesis ensure accuracy, reliability and honesty. I have completed all subjects and paid all financial obligations as prescribed by the Faculty of Law, Vietnam National University, Hanoi.

So I write this Declaration to request the Faculty of Law to consider so that I can defend my Thesis.

Thank you very much!

GUARANTEE

Nguyen Van Hai

LIST OF ABBREVIATIONS

BLDS : Civil Code

BLTTDS: Civil Procedure Code People's Committee: People's Committee

TAND: People's Court TANDTC: Supreme People's Court VADS: Civil case

BPKCTT: Temporary emergency measures

INDEX

COMMITMENT iii

LIST OF ABBREVIATIONS iv

INTRODUCTION 1

CHAPTER 1 10

SOME BASIC THEORETICAL ISSUES ON TEMPORARY EMERGENCY MEASURES IN THE PRE-LIMINARY PHASE 10

1.1. Concept, meaning and classification of temporary emergency measures in the period

pre-trial paragraph 10

1.1.1. Concept of provisional emergency measures in the pre-litigation stage

1.1.2. The significance of applying temporary emergency measures 14

1.1.3. Classification of temporary emergency measures 14

1.2. Brief history of formation and development of Vietnamese civil procedural law on application of temporary emergency measures 19

1.3. Basis for formulating regulations on temporary emergency measures in the pre-litigation stage 21

CHAPTER 2 30

CONTENT AND PRACTICE OF APPLYING PROVISIONS OF CURRENT VIETNAMESE LAW ON TEMPORARY EMERGENCY MEASURES 30

2.1. Temporary emergency measures under the Vietnamese Civil Procedure Law 30

2.1.1 Handing over minors, people without civil act capacity, people with difficulty in cognition and behavior control to individuals or organizations for care, nurturing, care, and education 30

2.1.2. Compulsory performance of part of the maintenance obligation in advance 34

2.1.3. Forced to perform in advance a part of the obligation to compensate for damages caused by infringement of life and health 36

2.1.4. Forcing employers to advance wages, health insurance, social insurance, unemployment insurance, medical expenses for work-related accidents or occupational diseases, compensation, and allowances for work-related accidents or occupational diseases for employees 37

2.1.5. Temporarily suspend the implementation of unilateral decisions to terminate labor contracts and decisions to dismiss employees 39

2.1.6. Seizing disputed assets 41

2.1.7. Prohibition of transferring property rights to disputed property 44

2.1.8. Prohibition of changing the status of disputed property 45

2.1.9. Measures for harvesting and selling crops or other commodities

2.1.10. Freezing accounts at banks, other credit institutions, and state treasury 47

2.1.11. Freezing the assets of the obligated person 48

2.1.12. Prohibition or forcing certain acts 49

2.1.13. Prohibition of exit for persons with obligations 50

2.1.14. Prohibition of contact with victims of domestic violence 51

2.1.15. Suspension of bidding and activities related to bidding 52

2.1.16. Arrest of aircraft and ships to ensure the settlement of cases 53

2.1.17. Other temporary emergency measures 54

2.2. Practice of applying temporary emergency measures 56

CHAPTER 3 64

DEVELOPING REGULATIONS ON TEMPORARY EMERGENCY MEASURES IN THE PRE-LIMINARY PHASE, LEGAL ISSUES THAT NEED TO BE RESOLVED 64

3.1. Establishing a regime on temporary emergency measures in the pre-litigation stage 64

3.1.1. Orientation for choosing to apply some types of temporary emergency measures according to current procedural law provisions on temporary emergency measures in the pre-litigation stage 64

3.1.2. Persons entitled to request the application of temporary emergency measures in the pre-litigation stage 68

3.2. Legal issues to be resolved when applying provisional emergency measures in the pre-litigation stage 75

CONCLUSION 86

LIST OF REFERENCES 88

INTRODUCTION

1. Urgency of the topic

The provisional emergency measures (PRM) regime is one of the important legal regimes in the timely protection of the rights and legitimate interests of the litigants in civil proceedings (CPL). The provisional emergency measures regime in the Civil Procedure Law (CPL) records the court's temporary settlement method when a civil case is urgent, according to which the court will promptly decide to immediately apply an immediate solution according to the provisions of law on the basis of the urgent request of the subjects with rights and interests according to the law or as the court itself deems necessary to temporarily resolve the urgent needs of the litigants, to immediately protect evidence and assets, and to ensure the timely protection of the rights and legitimate interests of the litigants in the civil case.

In terms of the legal policies of our Party and State, Article 14 of the 2013 Constitution stipulates that “ In the Socialist Republic of Vietnam, human rights and citizens' rights in the political, civil, economic, cultural and social fields are recognized, respected, protected and guaranteed in accordance with the Constitution and laws ”. Resolution No. 49-NQ/TW dated June 2, 2005 of the Politburo on the judicial reform strategy to 2020 also clearly states the direction of “ perfecting judicial proceedings, ensuring consistency, democracy, publicity, transparency, respect and protection of human rights ”, “ continuing to perfect civil proceedings ”, “ encouraging the settlement of some disputes through negotiation, conciliation and arbitration; The court supports by deciding to recognize that settlement ”… To realize the above goals and directions, the establishment of pre-litigation regimes in the pre-litigation stage is an urgent task to perfect “civil proceedings” in particular and contribute to ensuring human rights and property rights of citizens according to the provisions of the 2013 Constitution in general.

In the 2004 Civil Procedure Code (amended and supplemented in 2011), the provisions on administrative procedures are stipulated in Chapter VIII with 28 Articles stipulating 12 administrative procedures and guided by Resolution No.

02/2005/NQ-HDTP issued by the Council of Judges of the Supreme People's Court on April 27, 2005. Compared to the 2004 Civil Procedure Code (amended and supplemented in 2011), the 2015 Civil Procedure Code (effective from July 1, 2016) has added many new temporary measures (a total of 16 temporary measures), regulated in Chapter VIII, including 32 articles regulating various contents related to the application of temporary measures in resolving civil cases such as the right to request, the authority to decide on application, responsibility for incorrect application of temporary measures, procedures, complaints, recommendations, etc. Currently, the regulations on temporary measures in the 2015 Civil Procedure Code do not have any documents guiding their application. In terms of law making on temporary detention and application of temporary detention from the 2004 Civil Procedure Code to the 2015 Civil Procedure Code, the provisions on temporary detention and application of temporary detention are still very few compared to other regulations. This is also one of the reasons leading to the consequence that in practice, in the process of resolving civil cases, the application of temporary detention is still difficult and there is no mechanism to ensure enforcement.

The application of temporary detention measures is stipulated in Article 111 of the 2015 Civil Procedure Code. According to the above provisions, temporary detention measures are applied during the process of resolving a case from the time of accepting the case or in case of emergency, needing to immediately protect evidence and prevent serious consequences that may occur, individuals, agencies and organizations have the right to submit a request to a competent court to issue a decision to apply temporary detention measures stipulated in Article 114 of the 2015 Civil Procedure Code at the same time as submitting a lawsuit to that court. Thus, the application of temporary detention measures in the 2015 Civil Procedure Code is only implemented during the litigation stage or implemented together with the main lawsuit. However, in Vietnam's litigation practice, there are also many cases where, in order to protect their legitimate rights or avoid possible bad consequences, the parties only request the Court to immediately apply necessary measures without filing a lawsuit regarding the main lawsuit because there are no other disputes between them or there is a dispute regarding the main lawsuit but after the Court applies emergency measures, the parties have resolved it themselves. Generally speaking, it is clear that

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