Decree No. 43 Regarding the Establishment of a "Competence Determination Council" Between Military Courts, Special Courts and Regular Courts for Each Term

DECREE-LAW

ON THE "BOARD OF JURISDICTION DETERMINATION BETWEEN MILITARY COURTS, SPECIAL COURTS AND REGULAR COURTS"

CHAIRMAN OF THE GOVERNMENT OF THE DEMOCRATIC REPUBLIC OF VIETNAM

Pursuant to the Decree-Law of November 23, 1945 on Special Courts;

Pursuant to the Decree-Law of February 14, 1946 on Military Courts;

Pursuant to the Ministerial Decision of the Ministry of Justice dated February 25, 1946 on Military Courts;

Considering it necessary to establish a high-level body to resolve disputes regarding jurisdiction between Military Courts, Special Courts and Regular Courts;

After obtaining the consent of the Council of Ministers,

ISSUES THE DECREE-LAW:

Article 1: A "Board of Jurisdiction Determination Between Military Courts, Special Courts and Regular Courts" shall be established in each region.

The headquarters of such Board shall be located in Hanoi, Thuan Hoa and Saigon.

Article 2: The Board of Jurisdiction Determination shall consist of:

- The Minister of Justice or his representative who is the Chairman of the Administrative Committee of the region

- Chief Judge of the High Court as a member

- Procurator of the High Court as a member

A clerk designated by the Procurator shall assist the Board and keep records.

Article 3: The Board of Jurisdiction Determination has jurisdiction to determine:

1- Matters concerning acceptance for trial;

2- Matters concerning transfer of cases; between Military Courts, Special Courts and Regular Courts.

Article 4: The following persons have the right to initiate proceedings regarding jurisdiction disputes:

- Minister of Justice;

- Minister of Interior Affairs;

- Commissioners of Military Courts;

- Procurators and Advocates.

Article 5: Whenever a crime is subject to trial by two courts, one being either the Military Court or Special Court or Regular Court, if any court considers itself competent, it may issue a document requesting the other court to transfer the case and provide its file, or if not, must submit the file to the Board of Jurisdiction Determination for review. The document asserting jurisdiction shall clearly state the reasons.

Upon receipt of such request within five days, the Special Inspector or Advocate or Commissioner of the opposing court shall:

1- Either transfer the case file to the requesting court and thereby conclude the matter;

2- Or if disagreeing with the request, inform the requesting court and prepare a written defense of their position along with the document asserting jurisdiction from the requesting court and the relevant case file for submission to the Chairman of the Board of Jurisdiction Determination for review.

Article 6: If a court has received the claim for jurisdiction but refuses to transfer the case and also does not submit the file to the Chairman of the High Council for Resolution of Jurisdictional Disputes, then the claiming court may send a copy of its claim along with any files it possesses to the Chairman of the High Council for Resolution of Jurisdictional Disputes to initiate proceedings on jurisdiction.

Article 7: Whenever both military courts or special courts and ordinary courts in succession declare that they lack jurisdiction over a matter, the Special Investigation Committee or Prosecutor or Public Defender of the last court to rule on jurisdiction shall submit the file to the Chairman of the High Council for Resolution of Jurisdictional Disputes to initiate proceedings regarding the transfer dispute mentioned above.

Article 8: The Chairman of the High Council for Resolution of Jurisdictional Disputes may himself or appoint a member of the Council as an advocate to present the jurisdictional dispute before the High Council for Resolution of Jurisdictional Disputes.

Because such an advocate can ask the disputing courts for necessary documents to assist in the determination by the Council.

Article 9: The High Council for Resolution of Jurisdictional Disputes, if it finds that both disputing courts lack jurisdiction, may refer the matter to a third court for adjudication.

Article 10: The High Council for Resolution of Jurisdictional Disputes shall decide within the shortest possible time after receiving the file of the jurisdictional dispute case.

Article 11: The High Council for Resolution of Jurisdictional Disputes will adjudicate in camera, based solely on written documents; decisions of the Council will be final.

Article 12: The decision determining jurisdiction shall be sent by the clerk assisting the High Council for Resolution of Jurisdictional Disputes to the court with jurisdiction along with all case files. At the same time, a copy of this decision will be sent to inform the opposing court.

Article 13: A decree of the Minister of Justice, if necessary, shall specify details for implementing this Decree.

Article 14: The Ministers of Interior and Justice are responsible for enforcing this Decree.