Tom Tat Luan An Tran Minh Tien (Tieng Anh).Pdf

HỌC VIÊN TƯ PHÁP MINISTRY OF MINISTRY EDUCATION AND TRAINING OF JUSTICE HANOI LAW UNIVERSITY TRAN MINH TIEN VIETNAMESE LAW ON THE JURISDICTION OF THE COURT TO SETTLE LABOR CASES Specialization Comerce[.]

MINISTRY OF MINISTRY EDUCATION AND TRAINING OF JUSTICE

HANOI LAW UNIVERSITY

TRAN MINH TIEN

VIETNAMESE LAW ON THE

JURISDICTION OF THE COURT TO

SETTLE LABOR CASES

Specialization: Comerce Law

Code: 9 38 01 07

SUMMARY OF DOCTORAL THESIS OF JURISPRUDENCE

HA NOI - 2023

The thesis was completed at : Hanoi Law University

Science instructor: 1 Ph.D Tran Thi Thuy Lam – Instructor 1

2 Ph.D Nguyen Hien Phuong - Instructor 2

Reviewer 1:

Reviewer 2:

Reviewer 3:

Thesis has been defended before:

School-level Thesis Judging Committee at Hanoi Law University

INTRODUCTION

1 Rationale for the study

In labor relations, the interests between employees and employers are basically unified but there are also conflicts Conflicts that are not resolved

in a timely manner will give rise to labor disputes Labor disputes tend to increase in number, complex in content, sometimes derived from labor contract, sometimes related to labor relations and problems may arise such

as one party (employees, labor collective) asking the competent authority to declare the labor contract invalid, agreement voidable, etc To resolve these disputes, there are many different methods of settlement such as arbitration, court

The legal system on judicial proceedings in general and on the jurisdiction of the Court in particular is increasingly being improved The right to access to justice of the parties in the labor disputes is guaranteed and easily implemented The Court's judgments and decisions have ensured the rights and interests of the disputing parties, contributing to social stability, but there are still many decisions of the Court that have not yet ensured fairness and rationality There are problems and inadequacies in determining the type of labor case under the jurisdiction of the Court There

is inconsistency in the judgments when applying the labor law about the same provisions in the labor law It stems from many different reasons, including factors from the legal provisions on the jurisdiction of the Court

to deal with labor cases that do not meet reality, lack of clarity and there are many different interpretations, especially those relating to the jurisdiction

of the Court

Orientation for building and perfecting the socialist rule of law State of Vietnam in the new period with specific goals to 2030 with a complete and synchronous legal system, easy access and basically complete the building

of a professional, modern and fair judiciary, protecting human rights, citizens' rights, and legitimate and legitimate rights and interests of organizations and individuals The Resolution also sets out solutions and tasks to ensure that judicial proceedings are democratic, fair, rule of law, strict and accessible, and ensures and protects human rights and citizens' rights; determine the competence of the Court to fully and properly exercise judicial rights

Thus, the graduate student chooses the issue of “Vietnamese law on the

jurisdiction of the court to settle labor cases" as the topic of his doctoral

thesis, in the context that there are no scientific studies that specifically address this issue

2 Purposes and tasks of the dissertation

Purposes of the dissertation are: Clarifying the theoretical issues of the

Court's jurisdiction in handling labor cases, analyzing and assessing the current state of Vietnamese law provisions on this issue and proposing solutions for law improvement as well as improve the efficiency of law enforcement on the jurisdiction of the Court in settling labor cases

Tasks are: (1) Clarifying theoretical issues about the nature of the labor

case, the jurisdiction of the Court, the content of legal regulation of the Court's competence in settling the labor case; (2) Analysis and assessment

of the current state of Vietnamese law on the jurisdiction of the Court in handling labor cases and the practical application of the provisions on the Court's jurisdiction; (3) Analyzing and clarifying problems regarding the Court's jurisdiction in handling labor cases and (4) Proposing solutions to improve the law on the Court's competence in handling labor cases and at the same time improve the capacity of the Court in handling labor cases

3 Objective and scope of the study

3.1 Objective of the study: These are the theoretical issues, the current

state of Vietnamese law and the practical implementation of the law on the jurisdiction of the Court in settling labor cases In addition to the provisions

of Vietnamese law, the thesis also studies the provisions of the laws of some countries for comparison and reference to complete the Vietnamese law on the jurisdiction of the Court in handling labor cases

3.2 Scope of the study

- Regarding content: In legal science, there are many different

interpretations of the concept of jurisdiction of the Court With the approach of the economic law code, the thesis studies the jurisdiction of the Court in a broad sense, including the authority to consider and settle labor cases and the decision-making authority when dealing with that case Jurisdiction of the Court is expressed in terms of making procedural decisions and in terms of settling labor cases As for the court's decision-making authority, the PhD student only researches in terms of resolving the content of the labor case

The thesis focuses on research on labor cases arising from individual labor disputes, including three main types: cases on unilateral termination

of labor contracts, cases on dismissal discipline and cases on

reimbursement of training expenses These are the three types of labor cases that are common in trial and have the most problems

- Regarding time: The thesis focuses on studying the provisions of the

Civil Procedure Code in 2015, the Labor Code in 2019 and the guiding documents of the two laws on the jurisdiction of the Court in handling labor cases Due to the new Labor Code 2019 taking effect from 2021, the number of cases is not much while many regulations are inherited from the provisions of Labor Code 2012, the dissertation uses number of judgments applying the Labor Code 2012 to demonstrate the practical inadequacies of law enforcement on the jurisdiction of the Court

4 Research method

The thesis is researched based on the methodology of Marxist-Leninist theory Specific research methods used to conduct the thesis include: Methods of retrospective analysis, comparison, proof, synthesis The research methods are used flexibly, with a combination depending on the content and research problem

5 New contributions of the dissertation

As a systematic and comprehensive scientific research work on the jurisdiction of the Court in handling labor cases in Vietnam, the thesis has the following major new contributions:

- The dissertation has analyzed, clarified and deepened the theoretical issues of the labor case as well as the jurisdiction of the Court in handling labor cases to identify labor disputes, distinguish labor cases from civil cases with labor elements

- The thesis has approached and analyzed fully and comprehensively the jurisdiction of the Court in the settlement of labor cases in terms of the Court's authority to consider and settle labor cases and jurisdiction of the Court when dealing with the content of the labor case

- The thesis has pointed out the gaps in the law, inadequacies, shortcomings, as well as obstacles in the application of the law on the jurisdiction of the Court in both civil procedure law and labor law

- The theory of citizens' access to justice and the role of the Court, fairness and rationality has been discussed in many issues by the thesis The thesis also explains the necessity of case precedent for qualitative regulations, "blur" points in the labor law as well as the consistency in the application of labor law by the Court

- The thesis has identified the orientations of perfecting the law on the jurisdiction of the Court in handling labor cases, as well as there are a number of recommendations to amend and supplement the legal provisions

on the Court's competence in handling labor cases The thesis also proposes solutions to further improve the effectiveness of the Court in resolving labor cases

6 Structure of the thesis

In addition to the introduction, conclusion, list of published works of the author related to the thesis, list of references and appendices, the thesis is arranged as follows:

Overview of the research status of the thesis topic

Chapter 1: Theoretical basis for the jurisdiction of the Court and the law

on the competence of the Court in settling labor cases

Chapter 2: Current status of Vietnamese law on the jurisdiction of the Court in settling labor cases and practical implementation

Chapter 3: Completing the law and improving the effectiveness of law enforcement on the Court's competence in settling labor cases

Overview of the research status of the thesis topic

1 The results of legal research on the jurisdiction of the Court in settling labor cases

Firstly, theoretical studies on labor cases and the Court's jurisdiction in settling labor cases: Up to now, no work has provided a specific definition

of the labor case In other specialized areas, there are some studies on the jurisdiction of the Court Research on the jurisdiction of the Court in handling labor cases has not been much, mainly approach in the aspect of proceedings, in favor of the procedure for resolving labor disputes, but have not studied in-depth about the jurisdiction of the Court in a broad sense and especially in terms of decision-making power

Secondly, studies on the current state of Vietnamese law on the jurisdiction of the Court in handling labor cases and practical implementation: There have been a number of works assessing the legal

situation in each period on the jurisdiction of the Court to consider and settle a labor case in accordance with the procedure for settling civil cases There has not been any systematic research on the legal status and practical implementation of the Court's jurisdiction in handling labor cases

Thirdly, studies on perfecting the law and improving the effectiveness of the Court's jurisdiction in settling labor cases: A number of

recommendations to improve the law and improve the effectiveness of the Court's jurisdiction in handling labor cases before the 2019 Labor Code is promulgated and takes effect are of reference value There has not been any research to perfect the law on the jurisdiction of the Court in handling labor cases after the 2019 Labor Code took effect

2 Issues that need further research

Firstly, the thesis will also clarify the theoretical issues about the

jurisdiction of the Court in terms of the competence to consider and settle labor cases and the authority to decide on the content of such labor cases as well as legislation justification in this regard

Secondly, the thesis will analyze and evaluate the legal status of the

Court's jurisdiction in dealing with labor disputes in two aspects: authority

to consider and settle and decide on the content of labor cases to point out the appropriate points, inadequacies and gaps in the application of the law

in separate groups

Third, the thesis will also analyze and evaluate the legal status of the

Court's jurisdiction in handling labor matters This issue has almost no research or if there is research, it is only at a very narrow level and in favor

of the perspective of civil procedure law

Fourthly, by analyzing and commenting on specific cases, the thesis will

not only evaluate the Court's authority to consider and resolve labor cases but also evaluate the decision-making authority of the Court when dealing with the content of such labor cases, serve as a basis for making recommendations to improve the law

Fifth, the thesis will propose solutions to improve the law on the

jurisdiction of the Court in handling labor cases At the same time, the thesis also proposes solutions to improve the effectiveness of the Court's role in resolving labor cases

2 The theoretical basis on the jurisdiction of the Court, the legal situation on the jurisdiction of the Court as well as the practical implementation in the settlement of labor cases need to continue to be studied comprehensively, thoroughly, commented deeply and clarified further

In addition to the goal of building the theoretical basis of determining the jurisdiction of the Court for labor cases, perfecting the legal regulations on this issue, the thesis also focuses on researching solutions to improve effective application in practice

Chapter 1: THEORETICAL BASIS ON THE COURT'S AUTHORITY AND LAW ON THE COURT'S AUTHORITY IN

SETTLEMENT OF LABOR CASE

1.1 Some theoretical issues about the Court's jurisdiction in handling labor cases

1.1.1 The concept and characteristics of the labor case

The study of the concept and characteristics of the labor case is the study

of the concept and characteristics of the labor case and the concept and characteristics of labor

Civil cases are by nature disputes and these disputes must be resolved by the Court The labor case belongs to a civil case in a broad sense, so it must first be a Labor Dispute and be resolved by a court Labor Dispute is

“dispute over rights, obligations and interests between parties in the process of establishing, implementing or terminating labor relations, between organizations representing workers and between organizations representing workers and employers or organizations of the employer; between the parties in the relation related to the labor relations"

Labor Dispute includes many types Not every Labor Dispute arising is considered a Labor Case Only when the lawsuit is accepted by a competent

court will a Labor Case be formed Thus, Labor Case is "Labor Disputes

shall be accepted and settled by competent courts following the order and procedures prescribed by law for lawsuits filed by agencies, organizations

or individuals" To identify and distinguish the Labor Case from other

cases, people rely on a number of characteristics and signs through the form and nature of the Labor Case The nature of the Labor Case is expressed through signs of the subject, content and arising relationship

A civil matter is a matter where there is no dispute over rights and interests but at the request of an individual or organization to request the Court to recognize a legal event which gives rise to the rights and obligations of these individuals or organizations Labor is a labor request of

an agency, organization or individual that is accepted and settled by a competent court according to the order and procedures prescribed by law Labor is also identified through signs of form and nature from the labor requirements of the subjects in the labor relations

From there, it is possible to define a labor case as "a case accepted and

settled by a competent court according to the order and procedures prescribed by law for disputes and labor requirements of agencies, organizations or individuals” Labor cases include Cases and labor affairs

1.1.2 The concept and characteristics of the Court's jurisdiction in handling labor cases

Adjudication is a privileged activity of the Court in the exercise of judicial power Originating from the right to adjudication, the jurisdiction

of the Court has broad connotations, which are understood in two aspects

as follows: the right to consider and settle cases within the permitted scope

of law (also known as the adjudication authority, referred to as the Court's

jurisdiction for short) and authority to make decisions when dealing with

that case (also known as the Court's authority, referred to as the Court's

decision-making authority)

The exercise of these rights by the Court must comply with certain procedural order and procedures when applying the law to determine the right and wrong for the request to be proposed to the Court for settlement

Thus, the Court's competence in settling labor cases is “the right to

consider and settle labor cases and make arbitration decisions on the correctness and lawfulness when considering and settling such cases through the application of the law according to strict procedures in order

to protect the rights and legitimate interests of organizations and individuals”

Competence to consider and settle labor cases is a collection of types of labor cases that courts have the competence to accept and settle according

to legal procedures Jurisdiction of the Court is the right to decide and adjudicate the correctness and lawfulness of the lawsuit claim when the Court considers and settles the labor case

The jurisdiction of the Court in handling labor cases has the following characteristics: (1) The basis for which a lawsuit is filed, the petition of the subject has the right to initiate a lawsuit or the right to demand; (2) The competence to consider and settle and the competence to decide when settling a labor case of the Court have a close relationship with each other; (3) Is a conditional authority; (4) To be carried out in accordance with the provisions of the civil procedure law and the labor law; (5) Always limited

by the request of the involved party and (6) Court judgments and decisions are guaranteed to be enforced

1.1.3 The significance of determining the jurisdiction of the Court in settling labor cases

The determination of the Court's jurisdiction in the settlement of labor cases is a prerequisite and a premise to ensure the settlement of disputes, labor requirements are carried out in accordance with legal procedures, creating an effective and convenient legal mechanism for involved parties

to participate in the proceedings, decide on the rights and interests of the litigants, help organizations and individuals be more conscious in the implementation of the labor law, contribute to limiting the Labor disputes

occur in the future, ensuring legality and serving as the basis of criteria for evaluating the labor dispute settlement mechanism

1.2 Adjusting the law on the jurisdiction of the Court to settle labor cases

1.2.1 The concept and principles governing the law on the jurisdiction

of the Court in settling labor cases

The law on the competence of the Court in settling labor cases is a collection of legal norms promulgated by competent state agencies in order

to stipulate the Court's competence in considering and settling labor cases

as well as making decisions at the same time

The law on the jurisdiction of the Court in handling labor cases must be governed by a number of basic principles such as: (1) It must be carried out according to civil procedures and must ensure the principle of order; fair and independent law; (2) To ensure that its decisions are made on the basis

of the principle of judicial independence; (3) The court must respect the parties' right to decide and self-determination, respect the lawful agreement

of the parties in the labor relationship; (4) To base on the principle of protecting the legitimate rights and interests of the subjects in the event of a dispute or violation and (5) To ensure the Court to resolve the case in the most effective way

1.2.2 Contents of the law on the jurisdiction of the Court to settle labor cases

Depending on socio-economic conditions, judicial traditions and legal traditions, countries have different regulations on the settlement of labor disputes in courts There are two main trends in the form of organization as well as the procedural law of the Court in the settlement of labor disputes

The first trend is to establish a Labor Court that operates separately and

independently from the Civil Courts, and at the same time the Labor Court conducts trials according to a separate labor procedure provided for in the

law The second trend is that countries that establish Labor Courts are part

of the common Civil Court system and operate according to procedural rules in civil proceedings The Labor Court established in this form is relatively common in the world Basically, the laws of all countries stipulate the Court's jurisdiction in two aspects: the Court's authority to consider and settle labor cases and the Court's authority to make decisions

on the settlement of the content of cases

-Jurisdiction of the Court in considering and settling labor cases

Jurisdiction of the Court in considering and settling labor cases includes general jurisdiction (jurisdiction by case type), jurisdiction by level of Court and jurisdiction by territory (also known as jurisdiction by district) The Court's jurisdiction to consider and settle labor cases may be specified

in the direction of listing or in principle based on the nature of the disputed relationship or the value of the dispute In particular, in some countries, labor disputes can both be resolved at the Labor Court and at the Civil Court

Jurisdiction of the Court is to determine the specific jurisdiction of the provincial or district courts in considering and settling Labor Cases For countries that organize a judicial system according to jurisdiction (such as the United States), there will be no issue of jurisdiction by level For countries that organize courts according to territorial administrative units (such as Vietnam), it is necessary to determine the jurisdiction of the first instance of the Labor Case of the Provincial People's Court and the District People's Court The formulation of regulations on the first-instance jurisdiction of courts by level must be based on the principles of organization and operation, the actual capacity of each court level, the complicated nature of the case, the basic conditions of facilities and professional qualifications of the court staff Most of the labor cases are assigned to the district-level courts with jurisdiction to consider, accept and settle

The jurisdiction of territorial courts is the determination of jurisdiction to settle labor disputes between courts of the same level This division comes from the way the court system is organized according to administrative boundaries In principle, the determination of the Court's jurisdiction by territory must be carried out on the basis of ensuring that the Court's resolution of labor disputes is prompt, creating favorable conditions for involved parties to participate in the proceedings, and avoiding overlap in the exercise of jurisdiction between courts of the same level The division

of jurisdiction of the Court by territory must also ensure the right to determination of the involved parties The law provides that plaintiffs, claimants have the right to choose one of the courts competent to settle the case, regardless of the will of the defendant or the person being requested

self-to settle the case

- Jurisdiction of the Court on the settlement of labor cases

Jurisdiction of the Court to decide on the settlement of labor cases is understood as the authority to issue judgments of the Court on settlement of

the content of the dispute In order to make these decisions, the Court needs

to base on the provisions of the substantive law Labor disputes often revolve around a number of main contents such as disputes about unilateral termination of the labor contract, dismissal, salary, refund of training fees… Based on the content of the dispute and based on the provisions of the law, the Court will decide whether the unilateral termination of the labor contract or the dismissal of the employee is legal or illegal, whether the employee violates the obligations to pay wages, social insurance, etc.,

on that basis, to make specific judgments on the rights and obligations of the parties

Countries have different provisions on legal norms, which are developed

on a qualitative or quantitative basis Countries that follow the common law system of labor law often have very open regulations, only general and qualitative regulations Therefore, along with the legal system, there will be

a system of case law Jurisdiction of the Court will be great, because the Court will have the power to issue precedents to guide the application and implementation For countries that follow Civil Law, the legal provisions are usually relatively specific and quantitative

Regarding the termination of the Labor Contract, according to the ILO, there is no special provision on the termination of the Labor Contract The termination of the labor contract (dismissal of the employee) must have a good reason Depending on the legal system of each country, there are provisions in the law (such as France) or case law (such as in Japan and Germany), the necessity of staff reductions, efforts to avoid layoffs, fairness in the selection of subjects to be fired, the appropriate sequence of adequacy are the criteria to evaluate the reasonableness and legitimacy of dismissal for economic reasons The Court will base on the legal or illegal termination of the Labor Contract (or dismissal) to decide on the liability of the parties

In case the employer terminates the labor contract illegally, the laws of most countries require the employer to accept the employee back to work under the signed contract and must pay a statutory amount Based on the provisions of law and the agreement of the parties, the Court will issue a ruling to settle the interests of the parties In some cases related to compensation (such as the employer's compensation in case of illegal termination of the labor contract), the law does not specifically stipulate but only stipulates the minimum and also not limited to the maximum In such cases, the Court's decision-making power in resolving labor cases will be very important The decisions of the Court in this case are not only