Joint Circular No. 01/2010/TTLT-TANDTC-BLDTBXH-VKSNDTC guiding the application of certain provisions of the law in the process of resolving disputes regarding labor contracts for workers going to work abroad under guarantee contracts at the People's Court.

PART I

GENERAL ISSUES

Article 1. Scope of Regulation

These joint circulars provide guidelines on the application of certain provisions of the law in the process of resolving disputes regarding labor contracts for workers going to work abroad under contracts (hereinafter referred to as labor guarantee contracts) between enterprises, organizations sending workers to work abroad and guarantors for workers going to work abroad under contracts.

Article 2. Disputes concerning labor guarantee contracts

Disputes concerning labor guarantee contracts as stipulated in the Law on Vietnamese Workers Going to Work Abroad Under Contracts and detailed in Circular Jointly Issued No. 08/2007/TTLT-BLDTBXH-BTP dated July 11, 2007 by the Ministry of Labour, Invalids and Social Affairs and the Ministry of Justice guiding the detailed contents of labor guarantee contracts and the termination of such contracts for workers going to work abroad under contracts are civil disputes within the jurisdiction of the People's Court as prescribed in Clause 3, Article 25 of the Civil Procedure Code.

Article 3. Application of Law

1. If the labor guarantee contract was established before January 1, 2006 (the date when the 2005 Civil Code came into effect), and disputes arise, Resolution No. 45/2005/QH11 dated June 14, 2005 of the National Assembly on the implementation of the 2005 Civil Code shall be applied to resolve the dispute.

2. If the labor guarantee contract was established from January 1, 2006 to before July 1, 2007 (the date when the Law on Vietnamese Workers Going to Work Abroad Under Contracts came into effect), and disputes arise, the 2005 Civil Code; guiding documents for the application of the provisions of the 2005 Civil Code; Decree No. 141/2005/NĐ-CP dated November 11, 2005 of the Government on the management of Vietnamese labor working abroad; and the guidance provided in Circular Jointly Issued No. 06/2006/TTLT-BLDTBXH-BTP dated July 7, 2006 by the Ministry of Labour, Invalids and Social Affairs and the Ministry of Justice on the guarantee for workers going to work abroad and related regulatory documents shall be applied to resolve the dispute.

3. If the labor guarantee contract was established from July 1, 2007 onwards and disputes arise, the provisions of the Law on Vietnamese Workers Going to Work Abroad Under Contracts; the guidance provided in Circular Jointly Issued No. 08/2007/TTLT-BLDTBXH-BTP dated July 11, 2007 by the Ministry of Labour, Invalids and Social Affairs and the Ministry of Justice detailing certain issues regarding the contents of labor guarantee contracts and the termination of such contracts for workers going to work abroad under contracts; the guidance provided in these joint circulars; and related regulatory documents shall be applied to resolve the dispute.

Article 4. Coordination during the process of resolving disputes regarding guarantee contracts

During the process of resolving disputes regarding guarantee contracts, there must be coordination among the People's Court, the People's Procuracy, the Overseas Labour Management Department, the Departments of Labour, Invalids and Social Affairs (Ministry of Labour, Invalids and Social Affairs) where the case is being handled, and other relevant agencies and organizations to perform the following tasks:

1. When there are specialized issues in the field of sending workers to work abroad that the People's Court has requested opinions on through written communication, the Overseas Labour Management Department (Ministry of Labour, Invalids and Social Affairs) and the Departments of Labour, Invalids and Social Affairs shall have the responsibility to respond in writing to the issues requested by the Court.

2. Upon receiving a written request from the Court or the competent Procuracy to resolve the case, the Overseas Labour Management Department (Ministry of Labour, Invalids and Social Affairs) shall have the responsibility to provide related documents concerning guarantees for Vietnamese workers going to work abroad that the Overseas Labour Management Department (Ministry of Labour, Invalids and Social Affairs) holds according to the provisions of the law.

3. During the resolution of the case, the Court may apply the provisions of Article 93 of the Civil Procedure Code regarding entrusting the collection of evidence to request the Vietnam Labour Management Board in the foreign country (for areas with a Labour Management Board) or the diplomatic representative agency of Vietnam in the foreign country (for areas without a Labour Management Board); relevant agencies, organizations, and individuals shall cooperate in verifying and collecting evidence. In cases where the agency, organization, or individual requested cannot provide evidence to the Court, they must notify the Court in writing detailing the reasons for not being able to provide the evidence.

4. Upon request, the Court that has resolved the case shall have the responsibility to send copies of the judgment and decision to relevant agencies, organizations, and individuals according to the provisions of the law.

Chapter II

PROCEDURE FOR RESOLVING DISPUTES REGARDING GUARANTEE CONTRACTS AT THE PEOPLE'S COURT

Article 5. Right to initiate civil lawsuits regarding disputes over guarantee contracts at the People's Court

Enterprises and public institutions sending workers to work abroad under contracts; guarantors for workers going to work abroad under contracts stipulated in Clause 1 and Clause 3 of Article 2 of the Law on Vietnamese Workers Going to Work Abroad Under Contracts; and persons with rights and interests related to the dispute have the right to initiate civil lawsuits regarding guarantee contracts at the competent People's Court to protect their legitimate rights and interests.

Article 6. Documents and Evidence Accompanying the Complaint

The documents and evidence accompanying the complaint shall be carried out according to the provisions of Article 165 of the Civil Procedure Code and the guidance provided in Resolution No. 02/2006/NQ-HĐTP dated May 12, 2006, of the Supreme People's Court Presidium guiding the implementation of the provisions in Part Two "Procedures for Resolving Cases at the First Instance Courts" of the Civil Procedure Code.

In cases where the complainant cannot submit all documents and evidence due to objective reasons, they must submit initial documents and evidence to prove that the lawsuit is based on facts and is lawful.

Initial documents and evidence that the complainant must submit to the Court are original or certified true copies of the guarantee contract and any annexes to the guarantee contract. During the resolution of the case, the complainant must supplement additional documents and evidence themselves or as required by the Court to prove that their claims are based on facts and are lawful.

Article 7. Statute of Limitations for Initiating Legal Proceedings

1. The statute of limitations for initiating legal proceedings to request the Court to resolve disputes regarding guarantee contracts is two years, calculated from the date when the legitimate rights and interests of enterprises, public institutions sending workers to work abroad, guarantors for workers going to work abroad, or related parties with rights and obligations are infringed upon.

The determination of the statute of limitations for initiating legal proceedings and the starting point of the statute of limitations shall be carried out in accordance with the guidance provided in Section 2 Part IV of Resolution No. 01/2005/NQ-HĐTP dated March 31, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Part One "General Provisions" of the Civil Procedure Code.

2. In cases where disputes over guarantee contracts arise due to the parties failing to agree on the deadline for performing the guarantee obligation, but according to Article 56 of the Law on Vietnamese Workers Going to Work Abroad under Contract, enterprises and public institutions sending workers to work abroad have the right to set a reasonable deadline for performing the guarantee obligation. If the guarantor for workers going to work abroad does not perform the obligation or performs it incorrectly or incompletely after the notified deadline expires, then the expiration date of the notified deadline is considered the date when the legitimate rights and interests of the enterprise or public institution sending workers to work abroad are infringed upon.

Example: Enterprise A signed a guarantee contract with Guarantor B regarding sending workers to work abroad and a dispute arose over the performance of the guarantee obligation, but the parties could not agree on the deadline for performing the guarantee obligation. On September 22, 2009, Guarantor B received a request from Enterprise A to fulfill the guarantee obligation within thirty days. After October 22, 2009, if Guarantor B fails to perform the guarantee obligation as notified by Enterprise A, then October 22, 2009, is the date when the legitimate rights and interests of Enterprise A are infringed upon, and the statute of limitations for initiating legal proceedings starts from October 23, 2009, and ends on October 23, 2011.

Article 8. Jurisdiction of the People's Court to Resolve Disputes Regarding Guarantee Contracts

1. The People's Court at district level has jurisdiction to accept and resolve disputes concerning guarantee contracts in accordance with point a, Clause 1, Article 33 of the Civil Procedure Code.

2. In the following cases, disputes concerning guarantee contracts fall under the jurisdiction of the People's Court at provincial level in accordance with Clause 3, Article 33, Clause 2, Article 34 of the Civil Procedure Code and the guidance provided in Section 4 Part I of Resolution No. 01/2005/NQ-HĐTP dated March 31, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Part One "General Provisions" of the Civil Procedure Code:

a) Disputes concerning guarantee contracts involving workers going to work abroad under contract, guarantors for workers going to work abroad under contract, or related parties with rights and obligations located abroad as specified in sub-item 4.1 Section 4 Part I of Resolution No. 01/2005/NQ-HĐTP dated March 31, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Part One "General Provisions" of the Civil Procedure Code.

b) Disputes concerning guarantee contracts involving assets located abroad or requiring judicial commission to foreign consular offices of Vietnam or foreign courts as specified in sub-items 4.2 and 4.3 Section 4 Part I of Resolution No. 01/2005/NQ-HĐTP dated March 31, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Part One "General Provisions" of the Civil Procedure Code.

c) Disputes concerning guarantee contracts falling under the jurisdiction of the People's Court at district level but taken up by the People's Court at provincial level for resolution as stipulated in Clause 2, Article 34 of the Civil Procedure Code.

3. Cases where the jurisdiction to resolve disputes concerning guarantee contracts of the People's Court is not changed shall be implemented in accordance with Article 412 of the Civil Procedure Code and the guidance provided in sub-item 4.4 Section 4 Part I of Resolution No. 01/2005/NQ-HĐTP dated March 31, 2005 of the Supreme People's Court Council guiding the implementation of certain provisions in Part One "General Provisions" of the Civil Procedure Code.

Article 9. Collection of Evidence

1. The collection of evidence during the resolution of cases shall be carried out in accordance with the provisions of the Civil Procedure Code and the guidance provided for in Resolution No. 04/2005/HĐTP dated September 17, 2005 of the Supreme People's Court Council on guiding the implementation of certain provisions of the Civil Procedure Code regarding "Proof and Evidence."

2. Depending on the content of the dispute over guarantee contracts, the court may request the parties, individuals, agencies, and organizations to provide the court with the following documents and materials:

a) Documents and materials that are original or certified true copies related to the guarantee contract such as:

- Guarantee contract; supplementary agreement to the guarantee contract (if any); contract termination document (if any); cancellation document of the guarantee (if any); agreement to terminate the guarantee (if any);

- Contract for sending workers to work abroad; supplementary agreement to the contract for sending workers to work abroad (if any); contract termination document for sending workers to work abroad (if any).

b) Documents and materials that are original or certified true copies related to the security measures for fulfilling the guarantee obligation such as:

- Pledge, mortgage contract, or deposit contract;

- Documents proving the financial capacity, capability, and reputation of the guarantor for sending workers to work abroad.

c) Documents and materials that are original or certified true copies related to the performance of the guarantee contract such as:

- Notification document about the place of work, employment situation, income, health condition, working conditions, living conditions of the worker if the guarantor for sending workers to work abroad requests;

- Notification document about the worker's breach of contract or escape; termination document of the labor contract by the employer;

- Violation handling document of the worker by the competent authority of the foreign country or the competent authority of Vietnam in the foreign country according to the Law on Vietnamese Workers Going Abroad under Contracts (if any);

- Evidence proving the damage caused by the worker;

- Notification document to the guarantor for sending workers to work abroad about the fulfillment of obligations instead of the worker.

d) Other documents and materials related to the resolution of the case.

Chapter

III EFFECTIVE DATE OF IMPLEMENTATION

Article 10. Effective Date

1. This Circular takes effect forty-five days from the date of issuance.

2. Cases previously resolved in accordance with the relevant laws, where the judgments and decisions of the courts have become legally binding, shall not apply the guidance provided in this Circular to file cassation or revision appeals unless there are other grounds. For ongoing cases, the courts shall apply the guidance provided in this Circular to resolve them.

Article 11. Responsibility for Implementation

During the application of the guidance provided in this Circular, if there are difficulties or new issues arise, the People's Courts at all levels, the Departments of Labor, Invalids, and Social Affairs, and the People's Procuratorates at all levels need to report in writing to the Supreme People's Court, the Ministry of Labor, Invalids, and Social Affairs, and the Supreme People's Procuracy for timely explanation or guidance on amendment and supplementation.