Joint Circular No. 01/2003/TTLT/TANDTC-BQP-BNV-UBTWMTTQVN guiding the implementation of certain provisions of the Ordinance on Judges and Associate Judges of People's Courts

JOINT CIRCULAR

Guidelines for implementing certain provisions

of the Ordinance on Judges and Lay Judges of People's Courts

Based on the Law on Legislative Activities which was amended and supplemented on December 16, 2002;

Based on Article 43 of the Ordinance on Judges and Lay Judges of People's Courts,

In order to implement correctly and uniformly the provisions of the Ordinance on Judges and Lay Judges of People's Courts adopted by the Standing Committee of the National Assembly on October 4, 2002 and effective from October 15, 2002, the Supreme People's Court, the Ministry of National Defense, the Ministry of Public Security, and the Vietnam Fatherland Front Central Committee provide guidance on the following points:

I. REGARDING THE STANDARDS FOR JUDGES

1. According to Articles 1 and 2 of Resolution No. 131/2002/NQ-UBTVQH11 dated October 4, 2002 of the Standing Committee of the National Assembly "Regarding some points on the implementation of the Ordinance on Judges and Lay Judges of People's Courts and the Ordinance on Prosecutors of People's Procuratorates," when selecting and appointing judges, attention should be paid to:

a) For those who have not yet served as a judge of a People's Court (first time being proposed for selection and appointment as a judge), to be eligible for selection and appointment as a judge at any level of court, they must meet the standards stipulated in Articles 20, 21, 22, and 23 respectively of the Ordinance on Judges and Lay Judges of People's Courts (hereinafter referred to as the Ordinance).

b) For those who have served as a judge of a People's Court but have not obtained a certificate in trial procedures training, but meet all other standards stipulated in Articles 20, 21, 22, and 23 respectively of the Ordinance, they may be selected and appointed as a judge at the corresponding level without requiring a certificate in trial procedures training.

c) For those who were appointed as judges before October 15, 2002 and do not have a bachelor's degree in law or a certificate in trial procedures training, but meet all other standards stipulated by the Ordinance, they can only be reselected and reappointed as judges at that level, but during their new term, they must study to obtain a bachelor's degree in law.

d) For those who have sufficient experience in legal work, have not received training in trial procedures, but meet all other standards stipulated by the Ordinance, they can only be selected and appointed as judges in special cases and must be transferred to work in the judiciary by competent authorities. Special cases refer to situations where if they are appointed as judges, they will be appointed as Chief Judge or Deputy Chief Judge of the People's Court at that level.

2. Vietnamese citizens loyal to the country and the Constitution of the Socialist Republic of Vietnam, with good moral character, integrity, and honesty, and a firm spirit in protecting socialist rule of law must:

a) Not engaging in any act that endangers the independence, sovereignty, territorial integrity of the Fatherland, the people's national defense, the socialist regime, and the Socialist Republic of Vietnam;

b) Strictly abide by the Constitution and laws, Party policies, and State policies, lead a healthy life, and respect public rules;

c) Firmly struggle against individuals and actions harmful to the Party, the country, and the people;

d) Respect the people, serve the people wholeheartedly, maintain close ties with the people, listen to their opinions, and accept their supervision; firmly struggle against corruption, waste, and all manifestations of bureaucracy, arrogance, and abuse of power;

đ) Having a spirit of self-criticism and criticism, protecting justice;

e) Not fall under the circumstances prescribed in Article 2 of Chapter I of Decision No. 75/QD-TW dated April 25, 2000 of the Politburo;

g) Not engage in activities prohibited by Article 15 of the Ordinance;

h) Never been convicted (including cases where the conviction has been expunged).

"Having a bachelor's degree in law" means having a bachelor's degree in law issued by domestic universities authorized to award bachelor's degrees in law according to regulations; if the bachelor's degree in law is issued by foreign educational institutions, it must be recognized in Vietnam by the competent authority.

4. "Having been trained in trial procedures" means having a certificate in trial procedures training issued by the competent authority responsible for training judicial positions; if the certificate is issued by foreign educational institutions, it must be recognized by the competent authority in Vietnam.

5. "Time spent in legal work" refers to the period of employment since being assigned to a civil servant rank including Clerk of Court, Investigating Officer, Enforcement Officer, Legal Specialist, Researcher, Investigator, Prosecutor, Notary, Inspector, security personnel in the military, legal officers, lecturers in law, and time spent as a lay judge or lawyer is also considered "time spent in legal work."

6. "Having the ability to perform judicial work" means having the capability to effectively handle cases and resolve matters within the jurisdiction of the corresponding level of court, as assessed and evaluated by the management unit or through published research papers or applied studies on law.

7. "Having the health to fulfill assigned tasks" means having full capacity for civil acts, in addition to physical fitness, it includes appearance factors such as no deformities or defects directly affecting posture or job performance as a judge.

8. Those currently under criminal investigation or disciplinary review, but without a final decision from the competent authority, do not meet the conditions to be proposed for selection and appointment as a judge.

II. REGARDING THE SELECTION BOARD FOR JUDGES

1. Changes in members of the Selection Board for Judges

a) Pursuant to Clause 1 of Article 27 of the Ordinance, the Chairman or Vice-Chairman of the Provincial People's Council is the Chairman of the Selection Board for Judges of the Provincial People's Court and District People's Courts; therefore, when there is a change or reassignment between the Chairman and Vice-Chairman of the Provincial People's Council regarding the performance of the duty as Chairman of the Selection Board for Judges, the Standing Body of the Provincial People's Council shall notify in writing the Chairman of the Supreme People's Court.

b) Pursuant to Clause 1 of Article 27 of the Ordinance, the Chairman of the Provincial People's Court is a natural member of the Selection Board for Judges of the Provincial People's Court and District People's Courts; therefore, anyone appointed to the position of Chairman of the Provincial People's Court or delegated the authority of the Chairman of the Provincial People's Court by the decision of the Chairman of the Supreme People's Court shall automatically become a member of the Selection Board for Judges without needing a decision from the Chairman of the Supreme People's Court appointing them as a member of the Selection Board for Judges of the Provincial People's Court and District People's Courts.

c) When a change is needed in the representative of the Organizational Department of the Government, the Vietnam Fatherland Front Central Committee, or the Provincial Bar Association's Executive Committee as members of the Selection Board for Judges of the Provincial People's Court and District People's Courts, the agency or organization whose representative needs to be changed shall send a written request to the Chairman of the Provincial People's Council proposing such change. Attached to this document is the brief resume of the newly nominated person. The Chairman of the Provincial People's Council shall prepare a document requesting the Chairman of the Supreme People's Court to issue a decision changing the member of the Selection Board for Judges of the Provincial People's Court and District People's Courts. Attached to this document are the document of the agency or organization whose representative needs to be changed as a member of the Selection Board for Judges and the brief resume of the newly nominated person.

d) When a change is needed in the representative of the Ministry of National Defense, the Ministry of Public Security, the Vietnam Fatherland Front Central Committee, or the Central Executive Committee of the Vietnam Bar Association as members of the Selection Board for Judges of Military Regional People's Courts and Military Area People's Courts, the agency or organization whose representative needs to be changed shall send a written request to the Chairman of the Central Military Court proposing such change. Attached to this document is the brief resume of the newly nominated person. The Chairman of the Central Military Court shall prepare a document requesting the Chairman of the Supreme People's Court to issue a decision changing the member of the Selection Board for Judges of Military Regional People's Courts and Military Area People's Courts. Attached to this document are the document of the agency or organization whose representative needs to be changed as a member of the Selection Board for Judges and the brief resume of the newly nominated person.

2. The Selection Board for Judges operates according to the Regulation on the Operation of the Selection Board for Judges issued by the Supreme People's Court after reaching consensus with the Ministry of National Defense, the Ministry of Public Security, and the Vietnam Fatherland Front Central Committee.

3. The operating expenses of the Selection Board for Judges of the Provincial People's Court and District People's Courts are budgeted within the operating expenses of local people's courts. Depending on the conditions of each locality, the local People's Council may decide to provide partial funding support from the local budget for the operation of the Selection Board.

The operating expenses of the Selection Board for Judges of Military Regional People's Courts and Military Area People's Courts are budgeted within the operating expenses of the Central Military Court.

III. REGARDING THE PREPARATION OF PERSONNEL AND DOCUMENTS FOR PERSONS PROPOSED FOR SELECTION AND APPOINTMENT AS JUDGES

1. Pursuant to Clause 2 of Article 27 and Clause 2 of Article 28 of the Ordinance, the Chairman of the Provincial People's Court is responsible for preparing personnel and documents for persons proposed for selection and appointment as Judges of the Provincial People's Court and District People's Courts; the Chairman of the Central Military Court is responsible for preparing personnel and documents for persons proposed for selection and appointment as Judges of Military Regional People's Courts and Military Area People's Courts.

The Personnel and Organization Department of the Provincial People's Court or the Personnel and Organization Department of the Central Military Court assists the Chairman of the Provincial People's Court or the Chairman of the Central Military Court in preparing personnel and documents for persons proposed for selection and appointment as Judges, as well as assisting the Selection Board for Judges in the selection process and recommending the Chairman of the Supreme People's Court to appoint Judges.

2. The preparation of personnel for nomination to the Selection Board for Judges is carried out in the following steps:

Step 1: Based on the need for Judges, based on the proposals of agencies, units, and organizations, the Chairman of the Provincial People's Court prepares a list of brief resumes of persons proposed for selection and appointment as Judges of the Provincial People's Court, and a list of brief resumes of persons proposed for selection and appointment as Judges of District People's Courts; the Chairman of the Central Military Court prepares a list of brief resumes of persons proposed for selection and appointment as Judges of Military Regional People's Courts, and a list of brief resumes of persons proposed for selection and appointment as Judges of Military Area People's Courts.

Step 2: The Chairman of the Provincial People's Court and the Chairman of the Central Military Court organize the collection of opinions from the agencies, units, and organizations where these persons work as follows:

a) Regarding the subjects participating in the opinion collection:

For individuals currently working in the People's Court system who are proposed for selection and appointment as judges, the subjects participating in the opinion solicitation include all cadres and civil servants of the court where the individual being proposed for selection and appointment as a judge is working, if that court has fewer than 70 cadres and civil servants; if that court has 70 or more cadres and civil servants, the subjects participating in the opinion solicitation include judges and those holding positions at or above Deputy Director level and equivalent.

For individuals currently working outside the People's Court system who are proposed for selection and appointment as judges, the subjects participating in the opinion solicitation include all cadres and civil servants... of the agency, unit, or organization where the individual being proposed for selection and appointment as a judge works, if that agency, unit, or organization has fewer than 70 cadres and civil servants...; if that agency, unit, or organization has 70 or more cadres and civil servants..., the subjects participating in the opinion solicitation shall be determined through coordination between the President of the Provincial People's Court and the President of the Central Military Court with the head of that agency, unit, or organization, but the number of representatives of cadres and civil servants... participating in the opinion solicitation must not be less than 50 people from that agency, unit, or organization.

b) Regarding the form of opinion solicitation:

The opinion solicitation is conducted at a meeting (or a meeting of representatives) of cadres and civil servants... of the agency, unit, or organization where the individual being proposed for selection and appointment as a judge is working, using secret ballot voting.

c) Regarding the procedure for opinion solicitation:

After declaring the purpose, the composition of the meeting, the President of the Provincial People's Court or the President of the Central Military Court (or someone authorized by the President of the Provincial People's Court or the President of the Central Military Court) clearly states the need to appoint judges; disseminates the standards, duties, and powers of judges; announces the list of individuals proposed for selection and appointment as judges; reads a summary of the curriculum vitae, educational and work history, self-assessment, and strengths and weaknesses of the individual proposed for selection and appointment as a judge, along with the assessment of the head of the agency, unit, or organization where the individual proposed for selection and appointment as a judge works; guides the recording of ballots and distributes ballots;

Those participating in the opinion solicitation record and cast their ballots;

The President of the Provincial People's Court or the President of the Central Military Court (or someone authorized by the President of the Provincial People's Court or the President of the Central Military Court) together with at least two participants in the opinion solicitation check the total number of collected ballots (without counting them) and seal them in a large envelope signed by all participants in the checking process, with the total number of collected ballots noted on the outside of the envelope.

Step 3: The leadership collective of the Provincial People's Court or the Central Military Court and the Head of the Organization-Cadre Department of the Provincial People's Court or the Central Military Court conduct the ballot counting, prepare a ballot counting record; analyze the results of the opinion solicitation; verify and conclude any new issues arising (if any); discuss, assess, and vote on personnel. Personnel proposed for selection and appointment as judges must be approved by a majority of members of the leadership collective of the Provincial People's Court or the Central Military Court. In principle, cases receiving no more than 30% of valid votes in agreement with the proposal for selection and appointment as a judge will not be considered. For cases receiving 50% or fewer of valid votes in agreement with the proposal for selection and appointment as a judge, but where a majority of members of the leadership collective of the Provincial People's Court or the Central Military Court propose the selection and appointment as a judge, specific reasons must be provided.

Step 4: Prepare files for individuals proposed for selection and appointment as judges (each individual proposed for selection and appointment as a judge must have two files).

3. During the preparation of personnel, if there are complaints or reports (if according to the law on complaints and denunciations, verification is required) or if one of the members of the Judge Selection Council reflects negatively on the ethics, lifestyle, or social relations of the individual proposed for selection and appointment as a Provincial People's Court judge or County People's Court judge at their place of residence, then depending on each specific case, the President of the Provincial People's Court is responsible for coordinating with the Chairman of the Vietnam Fatherland Front Committee at the same level to organize verification and solicitation of opinions from representatives of the People's Committee, the Standing Party Committee, and the Standing Committee of the Vietnam Fatherland Front at the commune level according to the following procedures:

a) The President of the Provincial People's Court coordinates with the Chairman of the Vietnam Fatherland Front Committee at the same level to establish and dispatch a working group consisting of cadres from the Provincial People's Court and the Vietnam Fatherland Front Committee at the provincial level to the locality to verify and solicit opinions from representatives of the People's Committee, the Standing Party Committee, and the Standing Committee of the Vietnam Fatherland Front at the commune level.

b) The working group coordinates with the Chairman of the Vietnam Fatherland Front Committee at the commune level to convene a meeting to solicit opinions from representatives of the People's Committee, the Standing Party Committee, and the Standing Committee of the Vietnam Fatherland Front at the commune level.

c) Opinions of representatives of the People's Committee, the Standing Party Committee, and the Standing Committee of the Vietnam Fatherland Front at the commune level regarding issues requiring verification and solicitation of opinions related to the individual proposed for selection and appointment as a judge must be recorded in a protocol signed by those participating in the meeting and stamped by the People's Committee or the Vietnam Fatherland Front Committee at the commune level.

In special cases, at the verification meeting to seek opinions mentioned above, if the representative of the People's Committee or the representative of the Standing Party Committee or the representative of the Standing Board of the Vietnam Fatherland Front at the commune level requests to seek opinions from voters of the village, hamlet, or residential ward where the person proposed for selection and appointment as Judge resides, and all participants in the meeting consider it necessary to seek the opinion of voters on that person, such a request must be recorded in the minutes of the meeting and assigned to the Standing Board of the Vietnam Fatherland Front at the commune level to carry out the process of seeking voter opinions. The process of seeking voter opinions on the person proposed for selection and appointment as Judge shall be carried out according to the guidance of the Standing Board of the Central Steering Committee of the Vietnam Fatherland Front.

4. For negative feedback reflecting poor moral conduct, lifestyle, and social relations of the person proposed for selection and appointment as Judge of the Military Court of the Military Region, Judge of the Military Court of the Military Region where they reside or serve, the verification and conclusion shall be guided by the Chief Justice of the Central Military Court and organized in accordance with the regulations of the Ministry of National Defense.

5. The dossier of a person first proposed for selection and appointment as Judge of the Provincial People's Court, Judge of the District People's Court, Judge of the Military Court of the Military Region, or Judge of the Military Court of the Military Region shall include:

a) A voluntary application form to become a Judge (according to the model of the Supreme People's Court);

b) A curriculum vitae with a photograph (4 x 6 cm) and must be confirmed by the personnel management agency (according to Model TCTW 2b of the Central Organization Department of the Communist Party of Vietnam);

c) A declaration of assets (according to the model issued together with Decree No. 13/2002/ND-CP dated January 30, 2002 amending and supplementing certain provisions of Decree No. 64/1998/ND-CP dated August 17, 1998 of the Government);

d) Copies of graduation certificates in law, training certificates in adjudication, and other diplomas and certificates related to theoretical political education and other relevant qualifications for the selection and appointment of Judges (if any), certified by the issuing authority or by a competent state agency or by Notary Public;

đ) A self-criticism report of the person proposed for selection and appointment as Judge (according to the model of the Supreme People's Court);

e) An evaluation and assessment report by the head of the agency, unit, or organization where the person proposed for selection and appointment as Judge works regarding their work performance, professional competence, political quality, and moral conduct and lifestyle;

g) Minutes of the vote to seek opinions of the agency, unit, or organization directed at Step 2, Section 2, Part III of this Joint Circular concerning the person proposed for selection and appointment as Judge;

h) Minutes of the verification and opinion-seeking process, and Minutes of the voter opinion-seeking process directed at Point 3 and Point 4, Section III of this Joint Circular (if applicable);

i. A proposal document from the Chief Justice of the Provincial People's Court or the Chief Justice of the Central Military Court for the person proposed for selection and appointment as Judge;

6. The dossier of a person proposed for re-selection and re-appointment as Judge of the Provincial People's Court, Judge of the District People's Court, Judge of the Military Court of the Military Region, or Judge of the Military Court of the Military Region shall include:

a) A voluntary application form to become a Judge (according to the model of the Supreme People's Court);

b) An updated curriculum vitae from the date of appointment as Judge in the previous term to the date of being proposed for re-selection and re-appointment as Judge, with a photograph (4 x 6 cm) and must be confirmed by the personnel management agency (according to Model TCTW 2b of the Central Organization Department of the Communist Party of Vietnam);

c) An updated asset declaration from the date of appointment as Judge in the previous term to the date of being proposed for re-selection and re-appointment as Judge (if applicable);

d) Updated copies of graduation certificates in law and other diplomas and certificates (if any), certified by the issuing authority or by a competent state agency or by Notary Public;

đ) A self-criticism report of the person proposed for re-selection and re-appointment as Judge during the previous term as Judge (according to the model of the Supreme People's Court);

e) An evaluation report by the head of the agency, unit, or organization where the person proposed for re-selection and re-appointment as Judge works regarding their work performance, professional competence, political quality, and moral conduct and lifestyle;

g) Minutes of the verification and opinion-seeking process, and Minutes of the voter opinion-seeking process directed at Point 3 and Point 4, Section III of this Joint Circular (if applicable);

h) A proposal document from the Chief Justice of the Provincial People's Court or the Chief Justice of the Central Military Court for the person proposed for re-selection and re-appointment as Judge.

7. Along with the two dossiers, the person proposed for selection and appointment as Judge must provide two photographs (3 x 4 cm) for issuance of the Judge Identification Card (if appointed).

8. After completing the dossier and summary list of persons proposed for selection and appointment as Judge, the Chief Justice of the Provincial People's Court or the Chief Justice of the Central Military Court shall organize additional copies of three sets. The Chief Justice of the Provincial People's Court must report to the Chairman of the Judge Selection Council to decide on convening a session of the Judge Selection Council. After the Chairman of the Judge Selection Council decides to convene a session for selecting Judges, the Chief Justice of the Provincial People's Court or the Chief Justice of the Central Military Court shall send the dossiers and summary lists of persons proposed for selection and appointment as Judge to the members of the Judge Selection Council. Two original dossiers, the Chief Justice of the Provincial People's Court or the Chief Justice of the Central Military Court shall retain one dossier and send one to the Chairman of the Judge Selection Council or a representative of the Ministry of National Defense who is a member of the Judge Selection Council; the three additional copies shall be sent to each remaining member.

IV. REGARDING THE PREPARATION OF DRAFTS FOR PROPOSALS TO EXEMPT FROM JUDGE POSITION, OR TO REMOVE FROM JUDGE POSITION

1. Pursuant to Clause 2, Article 27 and Clause 2, Article 28 of the Ordinance, the President of the People's Court at the provincial level shall be responsible for preparing the dossier to propose the removal from office of the Judge position and the revocation of the Judge position for Judges of the People's Court at the provincial level and Judges of the People's Court at the district level; the President of the Central Military Court shall be responsible for preparing the dossier to propose the removal from office of the Judge position and the revocation of the Judge position for Judges of the Military Court at the military region level and Judges of the Military Court in the region.

The Personnel Department of the People's Court at the provincial level or the Personnel Department of the Central Military Court assists the President of the People's Court at the provincial level or the President of the Central Military Court in preparing the dossier to propose the removal from office of the Judge position and the revocation of the Judge position, as well as assisting the Selection Council of Judges in reviewing and proposing the removal from office of the Judge position and the revocation of the Judge position to the President of the Supreme People's Court.

2. The dossier to propose the removal from office of the Judge position includes:

a) A resignation letter requesting the removal from office of the Judge position, clearly stating the reasons for requesting the removal from office of the Judge position.

In cases where the person proposed for the removal from office of the Judge position is transferred to another job according to the dispatch of an authorized agency or organization, there is no need for a resignation letter requesting the removal from office of the Judge position, but a copy of the dispatch decision and a report from the President of the Court where the Judge works on the dispatch of the Judge must be provided.

b) Documents proving the reasons for requesting the removal from office of the Judge position such as health certificates, certificates of difficult family circumstances, etc. (if available);

c) Written opinions of the President of the Court where the Judge works;

d) A document from the President of the People's Court at the provincial level or the President of the Central Military Court proposing the removal from office of the Judge position.

3. The dossier to propose the revocation of the Judge position includes:

a) An auto-criticism statement of the Judge who has committed one of the acts stipulated in Clause 2, Article 30 of the Ordinance. In case the Judge refuses to write an auto-criticism statement, a report from the President of the Court where the Judge works must be provided;

b) Minutes of the meeting to discipline the Judge who has violated the rules;

c) Documents proving the violation by the Judge (if available);

d) Disciplinary decisions made by the person or agency or organization with authority over the Judge (if available);

e) A document from the President of the People's Court at the provincial level or the President of the Central Military Court proposing the revocation of the Judge position.

4. After completing the dossier to propose the removal from office of the Judge position and the revocation of the Judge position, the President of the People's Court at the provincial level or the President of the Central Military Court shall organize additional copies of three sets. The President of the People's Court at the provincial level must notify the Chairman of the Selection Council of Judges to decide to convene a session of the Selection Council of Judges.

After the Chairman of the Selection Council of Judges decides to convene a session to review the removal from office or the revocation of the Judge position, the President of the People's Court at the provincial level or the President of the Central Military Court shall send the dossier to propose the removal from office of the Judge position and the revocation of the Judge position to the members of the Selection Council of Judges. Two original dossiers, the President of the People's Court at the provincial level or the President of the Central Military Court retains one dossier and sends one dossier to the Chairman of the Selection Council of Judges or a representative of the Ministry of National Defense who is a member of the Selection Council of Judges; three copies are sent to each remaining member.

5. For cases where the Judge is automatically removed from the Judge position as stipulated in Clause 1, Article 29 of the Ordinance, the President of the People's Court at the provincial level or the President of the Central Military Court shall report in writing to the President of the Supreme People's Court along with a copy of the Decision allowing the Judge to retire to remove the name from the list of Judges.

6. For cases where the Judge is automatically deprived of the Judge position as stipulated in Clause 1, Article 30 of the Ordinance, the President of the People's Court at the provincial level or the President of the Military Court shall report in writing to the President of the Supreme People's Court along with a copy of the judgment of the Court that has taken legal effect against the Judge to remove the name from the list of Judges.

V. ENSURING THE PRINCIPLE OF PARTY LEADERSHIP IN STAFF WORK

The preparation of personnel, the preparation of dossiers for persons proposed for selection and appointment as Judges, and the preparation of dossiers to propose the removal from office of the Judge position and the revocation of the Judge position must strictly adhere to the principle of Party leadership in staff work and must comply with the Party's regulations on staff work.

VI. EFFECTIVE DATE OF THE JOINT CIRCULAR

1. This Joint Circular takes effect fifteen days after its publication in the Official Gazette.

2. During implementation, if there are issues requiring explanation or supplementary guidance, they should be reported to the Supreme People's Court, the Ministry of National Defense, the Ministry of Interior, and the Vietnam Fatherland Front Central Committee within their respective functions, tasks, and authorities to provide timely explanations or supplementary guidance.