Joint Circular No. 01/2014/TTLT-TANDTC-VKSNDTC-BTP guiding the implementation of Article 32a of the Civil Procedure Code amended and supplemented pursuant to the Law Amending and Supplementing Certain Provisions of the Civil Procedure Code.

JOINT CIRCULAR
Guidelines for Implementing Article 32a of the Civil Procedure Code amended and supplemented pursuant to the Law Amending and Supplementing Certain Provisions of the Civil Procedure Code
To ensure correct and consistent application of Article 32a of the Civil Procedure Code, which has been amended and supplemented pursuant to the Law Amending and Supplementing Certain Provisions of the Civil Procedure Code adopted by the National Assembly of the Socialist Republic of Vietnam at its 9th session of the 12th term on March 29, 2011, the Chief Justice of the Supreme People's Court, the Prosecutor General of the Supreme People's Procuracy, and the Minister of Justice hereby jointly issue the following guidelines:

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These joint circulars provide guidance on implementing the provisions of Article 32a of the Civil Procedure Code, which has been amended and supplemented pursuant to the Law Amending and Supplementing Certain Provisions of the Civil Procedure Code adopted by the National Assembly of the Socialist Republic of Vietnam at its 9th session of the 12th term on March 29, 2011 (hereinafter referred to as the "Civil Procedure Code") regarding the jurisdiction of the court in reviewing and revoking individual decisions clearly contrary to law made by agencies, organizations, or individuals with authority within those agencies or organizations that infringe upon the legitimate rights and interests of the parties in civil cases that the court is responsible for adjudicating.

Article 1. Scope of Regulation

Article 2. Determination of Individual Decisions Clearly Contrary to Law

1. An individual decision clearly contrary to law may be reviewed and revoked by the court when resolving a civil case if it meets all of the following conditions:

a) The individual decision is an administrative decision as defined in Clause 1, Article 28 of the Administrative Procedure Law and guided in Points a and b, Clause 1, Article 1 of Resolution No. 02/2011/NQ-HĐTP dated July 29, 2011 of the Supreme People's Court Council guiding the implementation of certain provisions of the Administrative Procedure Law;

b) The individual decision was issued without proper authority, procedure, or content as prescribed by law, thereby infringing upon the legitimate rights and interests of the parties in civil cases that the court is currently responsible for adjudicating.

2. The court will review and revoke an individual decision clearly contrary to law when the party makes such a request in writing or presents the request before the court during the process of resolving the civil case.

Article 3. Form of Request to Revoke an Individual Decision Clearly Contrary to Law

The request to revoke an individual decision clearly contrary to law shall be carried out in the following form:

1. The request must be expressed in the civil lawsuit complaint, the petition for resolution of a civil matter, or an independent petition. The civil lawsuit complaint, the petition for resolution of a civil matter, or an independent petition must include a request to revoke the individual decision according to Article 105 of the Administrative Procedure Law.

2. In cases where the party presents the request before the court, the court is responsible for recording it in a minutes document. The minutes document must have the signatures of the Judge and the party.

3. In cases where the party requests it during the trial, it shall be recorded in the trial minutes.

Article 4. Resolution of Party's Request to Revoke an Individual Decision Clearly Contrary to Law at the First Instance Trial

At the first instance trial, if the party newly requests to revoke an individual decision clearly contrary to law, and the court finds that the party's request to revoke the individual decision clearly contrary to law lacks grounds, then the court will not accept the request. If there are grounds, the court will base itself on Clause 1, Article 199 of the Civil Procedure Code to adjourn the trial and bring the agency, organization, or individual with authority within that agency or organization that issued the individual decision clearly contrary to law to participate in the proceedings and resolve it according to the civil procedure law.

At the first-instance trial, if the party newly requests to annul a clearly unlawful individual decision, and the court finds that the party's request to annul such a clearly unlawful individual decision lacks grounds, then it shall not accept the party's request. If there are grounds, the court shall base itself on Clause 1 of Article 199 of the Civil Procedure Code to adjourn the hearing and bring the agency, organization, or person with authority from the agency or organization that issued the clearly unlawful individual decision to participate in the proceedings and resolve it in accordance with the provisions of civil procedural law.

Article 5. Statute of Limitations

The court shall not apply the statute of limitations prescribed in administrative litigation laws when examining requests to annul clearly unlawful individual decisions.

Article 6. Advance Payment of Litigation Fees, Litigation Fees

Parties are not required to pay advance litigation fees and are exempt from litigation fees for requests to annul clearly unlawful individual decisions.

Article 7. Determination of Court Jurisdiction to Annul Clearly Unlawful Individual Decisions

1. The determination of court jurisdiction when parties request the court to annul clearly unlawful individual decisions shall be carried out in accordance with Articles 29 and 30 of the Administrative Litigation Law and the guidance provided in Article 4 of Resolution No. 02/2011/NQ-HĐTP dated July 29, 2011 of the Supreme People's Court Council guiding the implementation of certain provisions of the Administrative Litigation Law.

2. In cases where, after the people's court at district level has accepted civil cases, parties subsequently supplement their request to annul clearly unlawful individual decisions issued by agencies, organizations, or individuals with authority as stipulated in Article 30 of the Administrative Litigation Law and within the jurisdiction of the people's court at provincial level, then the people's court at district level shall issue a decision to transfer the case file to the people's court at provincial level for resolution according to the provisions of the Civil Procedure Code.

3. In cases where the people's court at provincial level has accepted civil cases but during the process of resolution, it finds clearly unlawful individual decisions or individual decisions within the jurisdiction of the people's court at district level as stipulated in Article 29 of the Administrative Litigation Law, then the people's court at provincial level shall continue to resolve the civil case.

4. In cases where the people's court at provincial level has accepted civil cases but during the process of resolution, parties withdraw their request to annul clearly unlawful individual decisions or the issuer of such decisions amends or revokes them, then the people's court at provincial level shall continue to resolve the civil case.

Article 8. Determination of Jurisdiction in Cases Where Parties Request to Annul Clearly Unlawful Individual Decisions in Civil Matters While Also Submitting Complaints or Initiating Administrative Litigation

During the resolution of civil cases, if parties request to annul clearly unlawful individual decisions, the court must inquire of the parties to clarify whether they have complaints under the complaint law or initiated administrative litigation against such decisions as provided by the Administrative Litigation Law.

If parties have submitted complaints under the complaint law or initiated administrative litigation against such decisions, the court shall guide the parties as follows:

1. In cases where the individual decision concerns only one person who has requested to annul the clearly unlawful individual decision in the civil case currently being resolved by the court, and also submitted a complaint to the competent authority for handling complaints or initiated administrative litigation against the decision at the court with jurisdiction over the decision, the court shall require the party to prepare a written selection of the method of resolution for the individual decision to affirm either the complaint to the competent authority for handling complaints or initiating administrative litigation at the court with jurisdiction, or requesting to annul the decision in the same civil case. If the party does not prepare a written selection, the court must record this in a minutes document.

Within five working days from the date of receipt of the court's written request, if the party does not provide a written selection of the method of resolution for the individual decision or a written selection to continue complaining to the competent authority for handling complaints or initiating administrative litigation at the court with jurisdiction, and the resolution of this individual decision directly affects the resolution of the civil case currently being considered by the court, then the court shall base its decision on Clause 4 of Article 189 of the Civil Procedure Code to issue a decision temporarily suspending the resolution of the civil case, pending the results of the complaint resolution or the resolution of the administrative case concerning the individual decision. The court must immediately send this temporary suspension decision to the parties, the competent authority for handling complaints, or the court resolving the administrative case concerning the individual decision, and the same-level People's Procuracy.

If the party chooses to resolve the request to annul the individual decision in the same civil case, the court shall require the party to withdraw the complaint or the administrative litigation initiation and proceed to resolve the civil case according to its jurisdiction, while the court resolving the civil case must inform the competent authority for handling complaints or the court resolving the administrative case concerning the individual decision.

2. In cases where the individual decision involves multiple persons, but only one person initiates a civil case, and also submits a complaint to the competent authority for handling complaints or initiates administrative litigation against the decision at the court with jurisdiction over the decision, while the other persons neither initiate a civil case nor submit complaints to the competent authority for handling complaints or initiate administrative litigation at the court with jurisdiction, the jurisdiction for resolution shall be determined as guided in Clause 1 of this Article.

3. In cases where the individual decision involves multiple persons, some of whom initiate civil cases, others submit complaints to the competent authority for handling complaints, and still others initiate administrative litigation at the court with jurisdiction, the court shall record this in a minutes document and require the parties to agree in writing on the method of resolution for the individual decision to affirm whether they will continue to complain to the competent authority for handling complaints, or initiate administrative litigation at the court with jurisdiction, or request resolution in the civil case.

Within five working days from the date of receipt of the court's request document, if the parties do not agree or fail to agree on the form of resolution for the individual decision or the parties agree to choose to file a complaint with the competent authority for complaints or initiate an administrative lawsuit against that individual decision, then the court shall issue a decision to temporarily suspend the civil case proceedings based on Clause 4 of Article 189 of the Civil Procedure Code, pending the results of the complaint resolution or the administrative case resolution at the competent court. The court must immediately send this temporary suspension decision to the parties, the competent authority for complaints, or the court resolving the administrative case concerning that individual decision, and the People's Procuracy at the same level.

If the parties agree to resolve the individual decision within the same civil case, then the court requests the parties to withdraw their complaint or administrative lawsuit initiation procedures and resolve the civil case according to its jurisdiction, while the court resolving the civil case must inform the competent authority handling the complaint and the court resolving the administrative case concerning that individual decision.

4. The party's choice of resolution form for the individual decision must be documented in writing.

If the party directly comes to the court to present the choice of resolution form for the individual decision, then the Judge or Court Clerk shall record it in a protocol signed by the Judge or Court Clerk and the party.

If the party sends the document choosing the resolution form for the individual decision through postal service, then the party must sign the document and have it certified by the competent authority as prescribed by law.

Article 9. Rights and obligations of participation in litigation of agencies, organizations, and persons authorized by agencies or organizations issuing the individual decision

1. Immediately upon receiving a clear request to revoke an individual decision that is manifestly contrary to the law, the court must notify the agency, organization, or person authorized by the agency or organization issuing the individual decision about the revocation request of that individual decision. Within fifteen days from the date of receipt of the court's notification, the agency, organization, or person authorized by the agency or organization issuing that individual decision must submit to the court a document recording their opinion on the revocation request of that individual decision and accompanying evidence (if any).

Agencies, organizations, and persons authorized by agencies or organizations issuing the individual decision have the right and obligation to participate in litigation as a party with related rights and obligations under the Civil Procedure Code at the request of the court.

2. Agencies, organizations, and persons authorized by agencies or organizations have the obligation to provide documents and materials related to the individual decision manifestly contrary to the law being requested to be revoked in the civil case being resolved upon the court's request.

Article 10. Effective Date

1. This Circular takes effect from March 3, 2014.

2. For civil cases accepted by the court before the effective date of this Circular, but which are newly resolved according to the first instance, appeal, cassation, and retrial procedures from the effective date of this Circular, this Circular shall apply for resolution.

Article 11. Interpretation and supplementary guidance on the Joint Circular

During implementation, if there are issues requiring clarification or supplementary guidance, local People's Courts, People's Procuracies, and relevant agencies, organizations, and individuals shall reflect such issues to the Supreme People's Court, the Supreme People's Procuracy, and the Ministry of Justice for timely clarification and supplementary guidance.