Temporary Emergency Measures Under Vietnamese Civil Procedure Law

with common sense

Chapter 1 Conclusion

Before the 2004 Civil Procedure Code, the regulations on temporary restraining orders were stipulated in sub-law documents such as the Ordinance on procedures for resolving civil cases, the Ordinance on procedures for resolving economic cases, and the Ordinance on procedures for resolving labor disputes. When the 2004 Civil Procedure Code was promulgated, the regulations on temporary restraining orders were expressed specifically and clearly. Currently, the 2015 Civil Procedure Code has supplemented and improved the regulations on temporary restraining orders. There are many ways to classify these temporary restraining orders. If based on the nature and purpose of temporary restraining orders to group, they can be divided into groups: groups of temporary restraining orders that force partial performance of obligations, groups of temporary restraining orders applied to disputed assets, groups of temporary restraining orders that freeze accounts and assets, groups of temporary restraining orders that prohibit or force certain acts, and groups of other temporary restraining orders prescribed by law; Based on the criteria of the subject requesting the application of temporary restraining orders, they are divided into groups: the group of temporary restraining orders that the Court decides to apply by itself in the absence of a request from an individual, agency or organization with the right to request the Court to apply temporary restraining orders; the group of temporary restraining orders that the Court must apply must have a request from an individual, agency or organization with the right to request the Court to apply temporary restraining orders; If based on the subject of the impact of temporary restraining orders, temporary restraining orders can be classified into the group of temporary restraining orders that affect personal rights and the group of temporary restraining orders that affect property and property rights.

The application of temporary measures is very important in protecting the rights and legitimate interests and urgent needs of the parties in a timely manner, while contributing to preventing wrongdoings, protecting evidence, maintaining the evidentiary value of evidence, and helping to resolve civil cases accurately. However, according to the provisions of the 2015 Civil Procedure Code, the application of temporary measures is only implemented in the litigation stage and has not yet been regulated for application in the pre-litigation stage.

Pre-litigation provisional emergency measures are pre-litigation provisional emergency measures prescribed by law that the Court decides to apply before initiating a civil lawsuit in order to:

to resolve the urgent needs of the litigants, protect evidence, preserve disputed assets, avoid causing irreparable damage or ensure the enforcement of judgments at the request of relevant individuals and organizations. Because of the importance of applying provisional emergency measures as well as on the basis of human rights, on the basis of the Party's guidelines on judicial activities, on the basis of the basic principles of the Civil Procedure Law, the relationship between substantive law and civil procedure law, and at the same time on the basis of the practice of implementing the Civil Procedure Law and referring to the model of applying provisional emergency measures in the pre-litigation stage in the world, the 2015 Civil Procedure Code needs to provide for expansion in the direction of allowing litigants to have the right to request the court to apply provisional emergency measures before filing a lawsuit to ensure the legitimate rights and interests of the litigants.

CHAPTER 2

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

Article 114 of the 2015 Civil Procedure Code stipulates sixteen temporary injunctions and one reserve provision. Compared to the 2004 Civil Procedure Code, the temporary injunctions stipulated in the 2015 Civil Procedure Code have increased by four measures, which are: Prohibition of exit for obligated persons; Prohibition of contact with victims of domestic violence; Suspension of bidding and activities related to bidding; Detention of aircraft and ships to ensure settlement of the case. These are completely new measures of great significance in the settlement of civil cases. The above-mentioned temporary injunctions can be applied to civil, marriage and family cases, commercial business cases, labor cases such as measures of freezing accounts, freezing assets, etc., but there are also measures that are only applied in civil cases such as handing over minors to individuals or organizations for care, nurturing, education; There are measures that are only applicable to labor cases such as temporarily suspending the execution of the decision to dismiss an employee, etc. This is a point to note when applying emergency measures in accordance with the legal relationship that the Court is resolving [27, p. 227].

2.1. Temporary emergency measures under the Vietnamese Civil Procedure Law

The BPKCTT prescribed in Article 114 of the 2015 Civil Procedure Code include:

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

The 2015 Criminal Procedure Code has expanded the protected subjects in this BPKCTT. According to the 2004 Criminal Procedure Code, which stipulates “ Measures for assigning minors to individuals, agencies, and organizations for care, nurturing, education ”, the protected subjects of this BPKCTT are “minors”.

However, the 2015 Civil Procedure Code has added additional protected subjects including: persons who have lost civil act capacity and persons with difficulty in cognition and behavior control. The two subjects, "minors" and "persons who have lost civil act capacity", were clearly defined in the 2005 Civil Procedure Code, while the subject "persons with difficulty in cognition and behavior control" was recognized for the first time as a subject in need of protection and defined in Article 23 of the 2015 Civil Procedure Code (effective from January 1, 2017).

“Article 23. People with difficulty in cognition and behavior control

1. If an adult, due to a physical or mental condition, is unable to perceive or control his or her behavior but has not yet lost civil capacity, the Court shall, upon request of this person, a person with related rights or interests, or a relevant agency or organization, based on the conclusion of a forensic psychiatric examination, issue a decision declaring this person to be a person with difficulty in perceiving or controlling his or her behavior and appoint a guardian and determine the rights and obligations of the guardian.

2. When there is no longer a basis for declaring a person to have difficulty in cognition or behavior control, at the request of that person himself or of a person with related rights or interests or of a relevant agency or organization, the Court shall issue a decision to cancel the decision declaring the person to have difficulty in cognition or behavior control.

According to this regulation, people with difficulty in cognition and behavior control are people with certain physical disabilities or mental problems that directly affect their ability to express their will accurately. These people do not fall into a state of "complete loss of cognitive ability and behavior control" so they cannot be classified as subjects with "loss of civil capacity" according to Article 22 of the 2015 Civil Code. People with difficulty in cognition and behavior control are often concentrated in the elderly group mainly related to mental reasons and people with disabilities due to physical conditions.

Entrusting a minor, a person without civil act capacity, or a person with difficulty in cognition or behavior control to an individual or organization for care, nurturing, care, or education is the act of transferring a minor, a person without civil act capacity, or a person with difficulty in cognition or behavior control to another person or organization for care, nurturing, care, or education in the event that the child's parents or relatives of the person without civil act capacity or the person with difficulty in cognition or behavior control do not have the conditions to care, nurture, care, or educate them so that they can develop normally.

Previously, in the Ordinance on Procedures for Settlement of Civil Cases, this measure was stipulated in Clause 2, Article 41, but it was only “handing over minors to individuals, agencies, and organizations for care”. Clause 1, Article 102 of the 2004 Civil Procedure Code was supplemented and the 2015 Civil Procedure Code continued to record: minors, people who have lost civil act capacity, and people with difficulties in cognition and behavior control are not only assigned to “take care of” but must also be “raised, cared for, and educated”. The measure is applied to urgently protect a special subject that the whole society is interested in protecting, which is minors, people who have lost civil act capacity, and people with difficulties in cognition and behavior control. In an emergency, minors, people who have lost civil capacity, people with difficulty in cognition, controlling their behavior and do not have a guardian, the court must immediately hand over these people to a qualified entity to look after, raise, care for, and educate them to ensure that they have a normal life and development until the court makes an official decision to resolve the content of the case. According to the provisions of Article 114 of the 2015 Civil Procedure Code, this temporary measure is decided by the Court to be applied in resolving marriage and family cases related to minors who do not have a guardian in accordance with the provisions of Articles 68, 69, 70, 71, 72 of the 2014 Law on Marriage and Family and Article 61 of the Civil Code.

The application of this temporary restraining order may originate from the plaintiff who has a request for the Court to apply it, and may also occur during the process of resolving a civil case involving a minor, a person without civil capacity, or a person with difficulty in cognition or behavior control, where the Court deems it necessary to apply emergency measures to protect and care for them. In this case, the Court shall issue a decision to apply temporary restraining order without the need for a request from the litigant.

The conditions for applying this measure are stipulated in Article 115 of the 2015 Civil Procedure Code, according to which this measure will be applied if the settlement of the case involves these people who do not have a guardian. At the same time, for the handover of minors aged seven years or older, the wishes of that person must be considered.

Resolution No. 02/2005/NQ-HDTP of the People's Council of People's Councils guiding the 2004 Civil Procedure Code stipulates: A minor without a guardian is understood as a case where the minor does not have a natural guardian but the minor's relatives have not appointed any of them or another person to be the guardian and the People's Committee of the commune, ward or town and social organizations at the grassroots level have not appointed any of them or a charitable organization to undertake guardianship. In case an individual or organization that meets the conditions for guardianship prescribed by law voluntarily undertakes guardianship, the court shall issue a decision to apply the temporary guardianship to assign the minor to that individual, agency or organization for care, nurturing, care and education. In case no individual, agency or organization voluntarily undertakes guardianship, the court shall decide to apply the temporary guardianship measure to assign the minor to one of the minor's relatives who meets the guardianship conditions prescribed by law to look after, raise, care for and educate. If there is no relative or none of the relatives meets the guardianship conditions, the court shall decide to apply the temporary guardianship measure to assign the minor to another person who meets the guardianship conditions prescribed by law or to a charitable organization to look after.

nurturing, care, education of the Supreme People's Court (2005), Resolution of the Council of Judges of the Supreme People's Court guiding the implementation of a number of provisions in Chapter VIII "Temporary emergency measures" of the Civil Procedure Code dated April 27, 2005, Hanoi.

The 2015 Civil Procedure Code does not have any guidance documents yet, however, based on the guidance of Resolution No. 02/2005/NQ-HDTP mentioned above, it can be seen that compared to the provisions of Article 115 of the 2015 Civil Procedure Code, this guidance creates more favorable conditions for the court when applying it. However, if we understand "minors, people who have lost civil act capacity, people with difficulty in cognition and behavior control and do not have a guardian" as only the case where the above subjects do not have a natural guardian, it is not really complete. In practice, there are cases where a minor, a person who has lost civil capacity, or a person with difficulty in cognition or behavior control in a civil case has a guardian, but that guardian is serving a prison sentence, is in a state of restricted parental rights over the minor, or one parent is serving a prison sentence while the other parent is in particularly difficult circumstances such as serious illness or poverty and cannot look after, raise, care for, or educate the minor. In these cases, the court must also decide to apply the temporary guardianship measure to assign the minor, the person who has lost civil capacity, or a person with difficulty in cognition or behavior control to that individual, agency, or organization for care, raising, care, and education.

2.1.2. Forced performance of part of the alimony obligation in advance

Compulsory advance performance of a part of the maintenance obligation is when the court decides to force the person requested to provide maintenance to provide a certain amount of money in advance to ensure that the person receiving maintenance can resolve their immediate difficulties, so that their health and life are not affected. The 2015 Civil Procedure Code stipulates in Article 116 as follows: “Compulsory advance performance of a part of the maintenance obligation is applied if the settlement of the case is related to the maintenance request and the request is considered to be well-founded and