Provisions of the 2004 Vietnam Civil Procedure Code on civil case mediation and implementation practices at the People's Court of Hoai Duc district, Hanoi city

Currently, the People's Court of Hoai Duc district, Hanoi city" is the subject of his research .

2. Research status of the topic

Mediation is an important issue in resolving civil cases in Court. Therefore, in addition to being concerned by the State and regulated in documents on civil procedure law (PLTTDS), there have also been many legal scientific research works studying this issue such as:

- Master's thesis in law: " Mediation in civil proceedings - practice and improvement direction " by Bui Dang Huy, Hanoi Law University, 1996;

- Master's thesis in law: " Reconciliation in civil proceedings" by Truong Kim Oanh, Institute of State and Law Studies, Center for Social Sciences and Humanities, 1996;

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- Doctoral thesis in law: " Mediation in resolving economic disputes at Court in Vietnam " by Dao Thi Xuan Lan, Institute of State and Law, Hanoi, 2004;

- Doctoral thesis in law: " Conciliation regime in civil procedure law - Some theoretical and practical issues " by Tran Van Quang, Hanoi Law University, 2004.

Besides, there are many articles on the practice of conciliation of civil cases by authors published in the People's Court Magazine, State and Law Magazine, Inspection Magazine, Justice Newspaper... such as:

- " Improving the conciliation regime in civil proceedings" by Dao Thi Mai Huong, TAND Magazine, No. 1, 1998;

- " Reconciliation and self-agreement in civil, economic and labor proceedings"

by Phan Huu Thu, Democracy and Law Magazine, No. 02, 1999;

- " The role and procedures of mediation in adjudicating labor disputes"

by Le Van Luat, TAND Magazine, No. 16, 2004;

- " Application of mediation regulations in civil proceedings" by Nguyen Thi Thanh Huong, Procuracy Magazine, No. 5, 2006;

- " The court's decision depends on the agreement of the parties" by Nguyen Quoc Phuong, Cong Ly Newspaper, No. 72, September 6, 2008;

- " Conciliation in civil proceedings of Vietnam and Japan from a comparative perspective" by Duong Quynh Hoa, State and Law Magazine, No. 02, 2008...

In addition, mediation in civil proceedings is also mentioned in the Civil Procedure Law Textbook of Hanoi Law University, Ho Chi Minh City Law University...

Each work and each article above studies mediation in civil procedure from a separate aspect, but most of them refer to the current status of the law on mediation, reflect the difficulties in the process of applying this institution and propose solutions to amend and supplement the regulations on mediation as well as measures to improve the effectiveness of mediation in the process of resolving civil cases at the Court. In particular, the research work of Dr. Tran Van Quang has studied in a relatively complete and comprehensive manner the mediation institution in civil procedure as well as the practical application of this institution. However, like other legal institutions, the mediation institution of civil cases is formed on a socio-economic basis, deeply reflecting the economic, political, cultural and social factors of the time. Therefore, the mediation institution always moves and develops objectively before the requirements of social life. The promulgation of the Civil Procedure Code is a great development of the civil procedure law system, including the mechanism of conciliation of civil cases. However, since the promulgation of the Civil Procedure Code, there has not been any research work that has fully and comprehensively studied the conciliation provisions of this Code.

3. Subject and scope of the research topic

The research object of the topic is theoretical issues on mediation, the institution of mediation of civil cases such as the concept, nature, meaning, basis of the institution of mediation of civil cases; regulations of the Civil Procedure Code on mediation of civil cases and their practical application at the People's Court of Hoai Duc district, Hanoi city; solutions to address the shortcomings of these regulations to improve the effectiveness of mediation of civil cases in civil procedures.

The provisions of the Civil Procedure Code on conciliation of civil cases is a topic with very broad research content, including many different issues. However, within the scope of this topic, the author only focuses on researching the provisions of the Civil Procedure Code on conciliation of civil cases before opening a court session, civil meeting as a part of the Civil Procedure Code in order to reveal their basic contents and the practical implementation of them at the People's Court of Hoai Duc district, Hanoi city.

4. Purpose and tasks of research topic

The purpose of the research is to further explore theoretical issues on mediation, analyze and explore the content of the provisions on mediation of civil cases in the Civil Procedure Code as well as the practical application of these provisions at the People's Court of Hoai Duc district, Hanoi city; thereby proposing solutions to improve the law on mediation to improve the effectiveness of mediation work in civil procedures.

To achieve the above goals, the research topic has the following main tasks:

- Study the theoretical basis of resolving civil cases by conciliation at Court; study the content of the provisions of the Civil Procedure Code on conciliation of civil cases.

- Research on the practical application of the provisions of the Civil Procedure Code on the mediation of civil cases at the People's Court of Hoai Duc district, Hanoi city.

- Identify the shortcomings and inadequacies of the provisions of the Civil Procedure Code on civil mediation and find solutions to improve the provisions of the Civil Procedure Code on civil mediation.

5. Methodology and research methods of the topic

The topic is researched on the basis of Marxism-Leninism methodology and Ho Chi Minh's thought on state and law. In addition, the research of the topic is not separate from other institutions of PLTTDS in particular and the entire legal system in general.

The specific research methods used are: analysis, demonstration, synthesis, interpretation, comparison, social investigation, logic, history...

6. New scientific points of the thesis

It can be said that, since the Civil Procedure Code came into effect, this thesis is the first monograph that comprehensively, completely and systematically studies the provisions on mediation of this Code. Therefore, the thesis has new scientific contributions as follows:

- Reveal some more theoretical issues on civil case mediation;

- Fully assess the current status of the provisions on mediation of the Civil Procedure Code, point out the difficulties in the application process and their shortcomings and inadequacies.

- Make recommendations to improve the provisions of the Civil Procedure Code on civil mediation.

7. Structure of the thesis

In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:

Chapter 1 : Overview of the civil case mediation regime in Vietnamese civil procedure law

Chapter 2 : Contents of provisions of the 2004 Vietnam Civil Procedure Code on mediation of civil cases

Chapter 3 : Practical implementation of the provisions of the 2004 Vietnam Civil Procedure Code on civil case mediation at the People's Court of Hoai Duc district, Hanoi city and recommendations.

Chapter 1

OVERVIEW OF THE REGULATIONS ON CONCILIATION OF CIVIL CASES IN VIETNAMESE CIVIL PROCEDURE LAW

1.1. CONCEPT, BASIS AND ROLE OF CIVIL CONCILIATION REGULATIONS IN VIETNAMESE

1.1.1. Concept of civil case mediation in Vietnamese civil procedure law

Mediation is a traditional method to resolve disputes in all areas of social life. Normally, when a dispute arises, the disputing parties will try to meet each other directly to settle, negotiate, and bargain. If there is no result, they will seek a third party to help them resolve the dispute. The third party they seek first will not be strangers but the closest people of the two parties. If their relatives cannot help them reconcile themselves, they will seek and rely on grassroots mediators or people working in the government and grassroots organizations that they trust. If the dispute resolution stops at the above levels, it is considered extrajudicial dispute resolution.

If the parties cannot negotiate and reconcile with each other, they will be forced to file a lawsuit in court. However, the law does not require all parties to file a lawsuit in court. They have the right to file a lawsuit requesting the court to resolve the dispute or not to file a lawsuit. Article 4 of the Civil Procedure Code stipulates: "Individuals, agencies and organizations have the right to file a civil lawsuit, request the settlement of civil matters at a competent court to request the court to protect their legitimate rights and interests or those of others". If the disputing parties choose to file a lawsuit to request the court to protect their rights, they still have the right to freely file a lawsuit throughout the litigation process.

determine their rights. Clause 2, Article 5 of the Civil Procedure Code stipulates: "In the process of resolving civil cases, the parties have the right to terminate, change their requests or voluntarily reach an agreement with each other, not contrary to the law and social ethics" [34]. That means that to resolve civil cases, in addition to adjudication, the Court can mediate to help the parties reach an agreement to resolve the case. In mediation, the Court is also a third party in resolving disputes. However, the Court's role as a third party does not stop at consulting and proposing dispute resolution options like a Mediator, but the law also gives the Court the right to make the final decision on the case, if the disputing parties cannot reach an agreement themselves.

Thus, civil case mediation is a method of resolving civil cases by the Court. However, there are still many different understandings of civil case mediation. There is a view that: Mediation in dispute resolution at the Court is a way to integrate mediation into judicial proceedings with the role of the Court as a third intermediary to help propose friendly solutions for the two parties to reach an agreement, while at the same time recognizing the legal value and ensuring the enforcement by the power of the State of the agreement results of the parties [18, p. 21]. Another view is that: Civil case mediation is a procedural activity conducted by the Court to help the parties reach an agreement on resolving civil cases [61, p. 257].

There is also a view that: Mediation in civil proceedings is a way to resolve civil disputes prescribed by law according to a certain order and procedure, according to which the Court explains the law to make the parties understand their rights and obligations in the dispute relationship with the aim of guiding the parties to voluntarily agree with each other to resolve the dispute between them [16, p. 43].

From the above mentioned viewpoints and current legal regulations, it can be seen that mediation in civil proceedings has the following characteristics:

Firstly, conciliation is a principle and procedure in the process of resolving civil cases.

Conciliation has been stipulated by the Vietnamese Civil Procedure Code as a principle and procedure in the process of resolving civil cases for the parties to exercise their right to self-determination and create opportunities to shorten the litigation time, while contributing to improving the effectiveness of the Court's operations. According to Article 10 of the Civil Procedure Code: "The Court is responsible for conducting conciliation and creating favorable conditions for the parties to reach an agreement on the settlement of civil cases in accordance with the provisions of this Code". According to Article 180 of the Civil Procedure Code: "During the period of preparation for the first-instance trial of a case, the Court shall conduct conciliation for the parties to reach an agreement on the settlement of the case, except for cases that are not mediated or do not undergo conciliation as prescribed in Articles 181 and 182 of this Code" [34]. Thus, conciliation is a mandatory procedure before the first-instance trial of civil cases that are required by law to be mediated.

Second, the Court is the intermediary entity conducting mediation.

The Court participates in mediation as an intermediary during the entire process of resolving civil cases, not only ensuring the parties' right to self-determination but also ensuring the legality of the mediation. The Court is the one who proactively summons the parties to open a mediation session. During the mediation process, the Court, represented by the Judge assigned to resolve the case, has the task of explaining the law related to the dispute, analyzing the difficulties of the parties, and proposing options for the parties to reach an agreement on resolving the case. The results of the mediation are recognized by the Court. Thus, the presence of the Court in mediation affirms the Court's intermediary position in the process of mediating civil cases at the Court.

Third, conciliation is an agreement between the parties.