Nguyên tắc bình đẳng trƣớc pháp luật của đƣơng sự trong tố tụng dân sự việt nam tóm tắt luận án bản tiếng anh

For those reasons, I have chose the topic "the principle of the litigants’ equality before the law in Vietnamese civil procedure" as a doctoral thesis, with the hope that the successful

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

Phan Thanh Tung

THE PRINCIPLE OF THE LITIGANTS’ EQUALITY

BEFORE THE LAW

IN VIETNAMESE CIVIL PROCEDURE

Major: Theory and History of State and Law

Code: 62.38.01.01

SUMMARY OF DOCTORAL THESIS

HA NOI – 2017

The study was completed at: Graduate Academy of Social Sciences

SCIENTIFIC INSTRUCTOR:

ASSOC PROF DR LE THI HUONG

Reviewer 1: Prof Dr Pham Hong Thai

Reviewer 2: Prof Dr Thai Vinh Thang

Reviewer 3: Assoc Pham Huu Nghi

Thesis is defended before the PhD thesis Jury Board held at: Graduate Academy of Social Sciences

dated in 2017

Thesis can be found at:

Library of the Academy of Social Sciences National Library of Vietnam

1 Rationales of the topic

Equality is one of fundamental human rights of human beings, closelylinked to human activities in society Mankind has struggled through manysacrifices to protect the rights of equality Therefore, ensuring equal rights is one ofthe most important tasks of civilized states In those rights, equality before the

courts, before the law, is the important right recognized by the world: "All are

equal before the law and are entitled without any discrimination to equal protection of the law" (Article 7 of the Universal Declaration of Human Rights).

"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him) (Article 10 of the Universal Declaration of

Human Rights)

The right to equality before the law is reflected in all areas of social lives,especially in the fields of economics, correction, culture and society, and especiallyimportant in the field of legistration, Justice, proceedings The criteria of a civilizedcountry today is that the law must be enforced regardless of the position betweenthe violators and victims Citizens' rights and obligations are not discriminatedagainst by gender, religion, wealth, social class, religion, etc In the same condition,citizens must enjoy the same rights and obligations, with the same legal status.However, the extent to which these rights and obligations are used shall depend onthe individual's abilities, conditions and accomplishments The state must play animportant role in ensuring that citizens carry out their duties and responsibilities in

an equal manner; citizens need to fulfill their obligations as determined by theConstitution and the Statutes, that is the best condition to exercise their rights.Equality before the law is also one of basic legal principle in manycountries Vietnamese Laws stipulate that all Vietnamese citizens are equal in theirrights and obligations; Citizens regardless of race, gender, sex, socio-religiousstatus, religion, level of education, occupation, residence time with 18 years old ormore shall have the right to vote and the right to run for office in the People'sRepublic of Vietnam according to the law for 21 years old or more The VietnameseConstitution also defines the equality of women and men in all aspects of politics,economics, culture, society and family

Building and protecting the equality of litigants is a social value and a goal

of human society Equality is not a matter of a personal nature, but it is arelationship between individuals against individuals, organizations againstorganizations Ensuring the right of litigants in the CCP is the guiding principle,policy of the Party and State in creating the stability, efficiency and development ofthe Vietnamese legal system That has been reflected in the documentations of the

Party Congress, the resolutions of the Politburo aimed at "Building a clean, strong,

strict, democratic judicial system, protecting justice, step by step modernizing, serving the people, the socialist Vietnam Fatherland, judicial activities, in which trial activities are conducted in effective and enforeible manner"(Resolution no 49-

NQ/TW of the Political Bureau of the Central Committee Communist Party ofVietnam on judicial reform toward 2020) Inheriting and promoting the values related to the previously published CCC legal documents, the CPC hasinstitutionalized the views of the State and the State on judicial reform, specifyingthe scientific proceedings, ensuring the promotion of democracy as an importantlegal instrument for individuals and organizations to protect their legitimate rightsand interests before the courts Article 8 of the Civil Procedure Code, amended in

2011 and Article 8 of the Civil Procedure Code 2015 (effective as of 01 July 2016),provided for equality of rights and the obligations in the civil procedure as follows:

"1 / In the civil litigation everyone isn’t equal before the law, not discriminated

against the clan, gender, creed, religion, social composition, education level, culture, occupation, social status All organizations, organizations and individuals shall be responsible for carrying out the procedures and obligations before the Court 2 / The court shall have the responsibility to ensure the principle of equality

in the performance of the rights and obligations of agencies, organizations and individuals in civil proceedings "

The first civil procedure code of Vietnam was issued in 2004 In 2011, theCPC was amended and supplemented by the Law amending and supplementing theCPC In 2015, the new CPC, effective from 01/07/2016, is the current CPC Underthe 3 CPC, provisions on the principle of equality on the rights and obligations incivil procedures are provided in Article 8 In the course of implementation, theprinciple of equality of rights and obligations in proceedings has revealed manyshortcomings and limitations This has affected the effectiveness of the court'shandling of civil cases and the protection of legitimate interests of entities at thecourts One of those existing issues is the provisions on the principle of thelitigants’ equality in the CCP There are many reasons for these limitations andshortcomings, including the lack of awareness and application to the principle ofthe litigants’ equality in the CCP

The CPC 2015 will take effect on 01st July 2016 with a total of 517 articles,divided into 42 chapters Compared with the revised CPC, in 2011, the CPC revised in

2015 has supplemented with 350 articles; adding 104 new articles Particularly, Article

8 of the CPC in 2015 stipulates the principle of equality on the rights and obligations incivil procedures as compared to Article 8 of the CPC in 2011, on the basis, there is nobig change If there are no breakthrough regulations, solutions that overcome theinadequacies and limitations of this principle, it is likely to impede the implementation

of the provisions in CPC 2015 such as " Implementation of interrogation modelcombined with litigation "; "Encouraging the settlement of disputes through negotiationand mediation"; "The court can not refuse a request for civil case handling for reasons

of package in applicable laws" etc

For those reasons, I have chose the topic "the principle of the litigants’ equality before the law in Vietnamese civil procedure" as a doctoral thesis, with

the hope that the successful research of this topic will contribute to clarifyingtheoretical issues on the principle of the litigants’ equality before the law inVietnamese civil procedure, as well as assessing the current legal status with regard

to the principle of the litigants’ equality in Vietnamese civil procedure On thatbasis, it will identify requirements and solutions to improve the principle of thelitigants’ equality before the law in Vietnamese civil procedure for the currentperiod and future time

2 Purpose and research tasks of thesis

2.1 Purpose of thesis: Based on theoretical study about the principle of

the litigants’ equality in the CCP and the current legal status of this principle in VietNam, it is proposed with solutions to perfect the principle of equality in Vietnamesecivil procedure in the near future

2.2 Research task of thesis: To achieve the above purpose, research tasks

are identified in the following aspects:

− Systematize theoretical issues related to the principle of the litigants’equality in the CCP by developing concepts, analyzing the content as well as thefactors affecting this principle

− Analyzing the formation and development related to the principle of thelitigants’ equality in Vietnamese civil procedure

− Assessing the current status with regard to the principle of the litigants’equality in the CCP in current legal documents and actual state of this principleapplication

− Analyzing and disseminating the views and recommendations ofsolutions to improve the principle of the litigants’ equality before the law inVietnamese civil procedure today

− Object and scope of the study in thesis

3 Research subject:

3.1 Subject of thesis:

The subject of thesis is the principle of the litigants’ equality before the law

in the CCP in accordance with the Vietnam law

3.2 Research scope:

The principle of equality before the law of the CCP is a broad and complextopic, covering a wide range of different contents Thesis focuses on studying the

current law of Vietnam, focusing on studying the regulations on CPC in 2004;LSBBSBLCCP in 2011 and CPC in 2015 on the principle of the litigants’ equalitybefore the law in the CCP on the basis of approaching to the formation anddevelopment of this principle before 1945 until now.

4 Methodology and research methods

4.1 Methodology method:

In order to clarify the objects and scope of the study, thesis uses themethodology of Marxism-Leninism to explain the problems of equality, roles andfactors guaranteeing the principle of the litigants’ equality before the law in theCCP At the same time, thesis is based on the views, principles of the Party and theState's policies on the principle of equality before the law of the CCP; Identifyingrequirements and develop recommendations to improve the application of thisprinciple in Viet Nam

4.2 Research Method:

In order to solve the specific problems set out by the research subject, thesisuses a harmonious combination of various scientific research methods such as themethods for analysis and synthesis of legal information and situations to clarifytheoretical issues and the legal status with regard to the principle of the litigants’equality before the law in Vietnamese civil procedure In addition, statisticalmethods and practical examples aim to demonstrate and illuminate the scientificconclusions, assessments and conclusions of thesis, especially the method ofcomparative jurisprudence used throughout in thesis to analyze, collate andcompare the law’s provisions on the principle of equality before the law in the CCPwith other principle and regulations of some countries in the world, thereby findingthe similarities and especially points which are incompatible, inadequate from theapplication of the principle of the litigants’ equality before the law in the CCP insocial and legal lives in Vietnam Specifically:

- Systematic method used in Chapter 1 is to classify and study the content ofscientific works public works published and related to thesis topic in Vietnam andforeign country

- Logical method is a research method used throughout the implementation

of Chapter 2, Chapter 3 and Chapter 4 Accordingly, in Chapter 2, before studyingthe rationale in the principle of the litigants’ equality before the law in the CCP,thesis has outlined the litigant and its equality At the same time, the content ofthree Chapters has a cross-cutting relationship Theoretical explanations in Chapter

2 are the basis for assessing the current state with respect to the principle of thelitigants’ equality before the law in the CCP in Chapter 3, and thereby, solutions toimprove the principle of equality before the law shall be improved in Vietnamesecivil procedure in chapter 4

- Historical method is used to evaluate the current state with respect to theprinciple of the litigants’ equality in the CCP.

- Analytical-synthesis method is used throughout Chapter 2, Chapters 3 and

4 of this thesis Analyzing the concept related to the principle of the litigants’equality in the CCP , analyzing the characteristics, contents, role and factors whichensure the principle of the litigants’ equality in the CCP; Analyzing legal provisions

on the principle of the litigants’ equality in the CCP as well as the practicalapplication of this principle in reality Analyzing the requirements and solutions toimprove the principle of the litigants’ equality in Vietnamese civil procedure

- For the study on the principle of the litigants’ equality in the CCP in somecountries around the world, the author focuses on the use of comparative andanalytical methods to draw out experiences for the improvement of this principle inVietnam

- In Chapter 3, apart from the use of analytical method, the author also usesstatistical method, the data synthesis method to support the explanations given inthe assessment of the current state with respect to the principle of the litigants’equality in Vietnamese civil procedure

5 New points of thesis

Firstly, thesis is an independent scientific work which has evaluated the

research situation of domestic and international authors related to thesis topic Onthat basis, the purpose and scope of research shall be set out to rationalize theproblems with respect to the principle of the litigants’ equality before the law in theCCP, in which that works have not been studied or further researched

Secondly, thesis further clarifies the pointviews on: the litigant, the litigant’s

equality; the concept and content of the principle of the litigants’ equality beforethe law in the CCP according to Vietnamese law from the formation history to thecurrent regulations

Thirdly, the analysis clarifies the nature of the principle of the litigants’

equality before the law in the CCP which is placed in relation to other principleprescribed by the CCP Each of these principle specifies and demonstrate thedifferent perspectives, areas and scales that form a system of principle to ensure theimplementation of human rights, interests and responsibilities of entities in theeffective execution of legal institutions in social and legal lives

Fourthly, thesis has analyzed and evaluated the factors which ensure the

principle of the litigants’ equality before the law in the CCP In which the economic conditions, the provisions of the law on the CCP with regard to theorders and procedures for resolving civil cases, activities of settling civil cases incourts, supporting activities to participate in proceedings of organizations andindividuals, mechanism for supervision and control of civil activities are decisive

socio-factors to ensure the principle of the litigants’ equality before the law in the CCP.Therefore, one of current requirements is the necessity to deal with the issues above

in a synchronous and systematic manner to ensure the principle of the litigants’equality in actual social lives

Fifthly, thesis analyzes and evaluates the regulations of some countries on

the principle of the litigants’ equality in the CCP (the United States, France andChina) that have different legal systems Thereby, it is possible to draw out someexperiences to the process of developing and enforcing this legal principle inVietnam

Sixthly, thesis has analyzed and evaluated in a comprehensive and objective

manner on the current state applying the principle of the litigants’ equality in theCCP On that basis, the advantages and limitations of the Vietnamese law withregard to the principle of the litigants’ equality in the CCP shall be outlined;Determining the reason of limitations and inadequacies of this principle in practice

Seventhly, thesis has identified specific solutions and requirements that

contribute to improving the principle of the litigants’ equality in Vietnamese civilprocedure Such solutions provided shall ensure the scientific and valuablereference for agencies conducting legal proceedings, litigants and other subjects, inaccordance with other civil procedural principle, in order to ensure the litigants’fairness before the Court and suitability with the international integration process

6 Scientific and practical meaning of thesis

From the approach, study and evaluation with regard to the principle of thelitigants’ equality in Vietnamese civil procedure and other countries of the world, itcan be said that thesis is an independent scientific work that also has a systematicand comprehensive study with regard to the principle of the litigants’ equality in theCCP

The analysis, conclusions and recommendations outlined thesis includes ascientific theoretical basis that ensures the reliability Therefore, the research results

of this thesis have theoretical and practical significance in developing andimproving the laws with regard to the principle of the litigants’ equality in the CCP.Thesis is a valuable resource for teaching, learning and scientific research in thelegal sciences as well as law enforcement related to the principle of the litigants’equality in Vietnamese civil procedure

7 Layout of thesis

In addition to the introduction, conclusion and a list of references, thesis isconsist of four chapters as follows:

Chapter 1: An overview of current research related to the topic

Chapter 2: Theoretical issues on the principle of the litigants’ equality in

Vietnamese civil procedure

Chapter 3: Current state with regard to the principle of the litigants’ equality

in Vietnamese civil procedure

Chapter 4: Perspectives and solutions for improving the principle of the

litigants’ equality in Vietnamese civil procedure

Chapter 1

AN OVERVIEW OF CURRENT RESEARCH RELATED

TO THE TOPIC 1.1 Studied works in the world and Vietnam related to the topic

1.1.1 Studied works in the world

Equality is the goal that all human beings throughout the world have theright to pursuit Thus, in the history of human society, there are many pointviews ofscholars on the equality from the east to the west, from modern to contemporary.Jurisprudence works around the world on this issue with different approaches,different research purposes and opinions, thereby, different research results shalldepend on the research purpose, problem-approaching method Research works ofscholars in the world are mainly sorted by the following groups:

+ Modern research group expressing pointviews on equality and social justice.+ Group studying on civil procedure system in England

+ Group studying on principle in the CCP that refer to the principle of thelitigants’ equality

+ Group studying on Civil Procedure - a process for resolving civil casesincluding court proceedings, mediation and arbitration

+ Group studying on the benefits and equality in all laws and proceedings.+ Group studying on the case law

Apart from the works mentioned above, there are many other studies,approaching the aspects on the application of equality principle in the CCP, or caseslaw with regard to the assurance of those principle that can be enforced in practice

at some countries etc These studies have a high applicability in the practice of thelaws or the lessons learned to apply the principle of the litigants’ equality in theCCP In particular, theoretical issues on the role and impact of the principle ofequality in the CCP for developed and developing countries have received muchattention from the authors However, the research’s continuation provides ascientific assessment with regard to some limitations, inadequacies and practicalexperiences in applying the principle of the litigants’ equality in the CCP atIntensive level are always an urgent need in the process of developing andimproving the legal system of Vietnamese civil procedure

1.1.2 Research situation in Vietnam

The trend of equality toward a stable and sustainable civil society hasalways been one of the great directions of the Party and State This is reflected in

the documents of the Communist Party of Vietnam, in the development directionsand policies of the Party and the State as well as research works of scholars It can

be seen that the research situation no matter what aspects given, in relation to theregulations and implementation for the principle of the litigants’ equality in theCCP, shall be considered in a multidimensional approach This shows that this isone of the most important principle in civil law and legal lives in general Thesescientific works can be sorted with the following basic groups:

+ Group studying on Human Rights

+ Group approaching the equal rights in society is associated with thefairness, responsibility and solidarity

+ Group studying on the rights and obligations of the litigants in the CCP.+ Group studying on the civil procedure principle, which specifies thoseprinciple set out in Article 8 of the Civil procedure code (principle on the equalrights and obligations of the litigants)

+ Group studying on the rights of the litigants in the CCP

+ Group studying on the principle of fairness in relevant laws

1.2 Overview of the study

1.2.1 Results gained and inherited in thesis

From the evaluation of domestic and foreign studies on the principle of thelitigants’ equality before the law in the CCP related to the topic, the author hasfound that the research of scholars has reached the following basic results:

Firstly, there are many approaches with different aspects including

philosophical, economic, legal, sociological aspects etc with regard to the equalityand the principle of equality before the law applicable to the litigants But ingeneral, whether studied at different levels, due to the viewpoints, general orspecific points, the authors assert that the equal right is one of fundamental rights ofhuman beings Equal right is of nature, satisfying the social needs of every person

in lives

Secondly, the authors say that human rights are a legal and a long history of

development Human rights are inherently inseparable to human beings born onthis earth, regardless of who they are, where they are born, regardless of gender,religion or status Human rights are equal All individuals in society are recognizedfor their human values and deserve to be respected

Thirdly, from the different approaches and studies of scholars, it is said that

when engaging in civil law relations, although the entities may not be the same interms of participation status, purpose of civil relations but in terms of legal status,they always have equality The equality of the entities involved in civil litigation isalso one of the contents demonstrating the equality of legal status And it shall notonly stop at the equality in the laws and regulations on the content, but in formal

law (procedural law), the principle of equality must always be promoted and acharacteristic to distinguish from the criminal or administrative proceedings This isone of the most important principle in the CCP, contributing to the assurance ofhuman rights toward a stable and developed society.

Fourthly, although studied in different aspects, the authors generally agree that

the equality of litigants is an important factor in the successful establishment of thelaw-governed State in Vietnam This socialist law-governed State requires judicialactivities to be equal, fair, democratic and effective, everyone must obey the lawthoroughly In order to meet those requirements, it is necessary to firstly implementthe basic legal principle of the State, and one of those principle is that all citizens areequal before the law The litigants' equality in the CCP is one of the basis, objectives

to realize the requirements on the principle "all citizens are equal before the law"

1.2.2 Issues need to be further studied

On the basis of acquiring, inheriting the opinions, ideas and some theoreticalissues from domestic and foreign scientific works, the author will continue to focus

up on issues related to the equality and principle of equality of the litigants beforethe law in the CCP which have not been approached or been approached by thescholars without an in-depth level, including:

+ Firstly, the author continues to focus on theoretical issues in a systematic

manner upon the litigant, equality, concept and content with regard to principle ofequality of the litigants before the law in the CCP and the current state of applyingthose principle in Vietnam On the basis of that, comments and assessments shall bedrawn out regarding the difficulties and complexities as well as inadequacies,limitations when applying the principle of the litigants’ equality before the law ineconomic, political and culture conditions, as well as legal tradition of Vietnam.This is the foundation, basis of the views and solutions to improve institutions andlegistration on the principle of the litigants’ equality before the law in Vietnamesecivil procedure in the current period

+ Secondly, an approach has been also focused to study the principle of the

litigants’ equality before the law in the CCP of some typical countries, from which

it shall summarize and evaluate to draw experiences in the process of developingand improving the legistration system with regard to the equality of the litigants inVietnamese civil procedure

+ Thirdly, the study of litigants’ equality is based on the relationship with

other featured principle of civil procedure in order to approach and confirm the rolerelated to the principle of the litigants’ equality before the law This is arequirement of objectivity in the orientation of building and developing the law-governed Vietnamese State in the context of international integration

+ Forthly, equality of the litigants before the law in the CCP is a principle

that not only is recognized in a form of civil law which must be guaranteed witheffective implementation of social lives in general legal lives in particular.Therefore, one of the contents that author needs to focus on further clarifying shall

be the factors that influence and impact the implementation of this principle inpractice

+ Fifthly, at present, there is not any research that is in depth, systematic

with regard to the principle of the litigants’ equality before the law in Vietnamesecivil procedure Therefore, a comprehensive and independent study is needed onthe above issues Therefore, the development of research results on the principle ofthe litigants’ equality before the law in theoretical perspective; Evaluating thereality and practice applied with this principle; Proposing necessary solutions toimprove the legal principle of equality of the litigants in the CCP and this shall be ascientific study that is different from any previous study

Chapter 2 THEORETICAL ISSUES OF THE PRINCIPLE OF EQUALITY BEFORE THE LAW OF THE LITIGANTS IN CIVIL PROCEDURES OF VIETNAM 2.1 The concept, role and significance of the principle of equality before the law of the litigants in civil procedure

2.1.1 The concept of the principle of equality before the law of the litigants in civil procedure

2.1.1.1 The concept of the litigants in civil procedure

From a linguistic perspective, according to the Vietnamese Dictionary, the

litigant is “the person who is the direct object of a case being solved” [82, p 572].

Also in the Sino-Vietnamese Dictionary, the litigant is defined as the person

“directly related to a case” [24, p 232] As such, from the best general perspective,

the litigant is the person directly involved in any case that is being considered andresolved

From the legal point of view, according to the Legal Dictionary of 2006, the

litigant is understood as “The individual or legal entity who is involved in civil

procedure (CP) as a plaintiff or a defendant or a person with related rights and obligations The litigant is one of the groups of people involved in civil procedure

in the People’s Courts in civil, business, commercial, marriage and family and labor lawsuits Those involved in that civil procedure include the litigants, the representatives of the litigants, the defense counsels of the litigants, the State agencies, the social organizations that initiate lawsuits for the common interests, the Procuracies, witnesses, interpreters” [59, p 278 - 279] Thus, the litigants in a

case are the persons with rights and obligations related to the case that is beingconsidered and resolved Accessing to the views of jurists, it can be seen that,

despite the different aspects of the study, there is still a common view that thelitigants are the persons involved in the process of resolving the civil cases due tohaving the rights and obligations resolved in civil cases, including plaintiffs anddefendants However, the jurists have not yet provided a comprehensive concept oflitigants in CP In order to develop a concept of litigant in CP, it is necessary to firstclarify the point of view on civil procedure CP is understood to be a lawsuit incourt about civil relations and require the court to resolve under its jurisdiction.However, legally, the concept of CP also has different interpretations, depending onthe litigation model and law of each country in the basic legal system of the world.

From the results of the study, it can be recognized that: the litigants in civil

procedure are individuals, legal entities or other subjects who have the rights or interests of the disputes or who need to be identified to participate in the civil case resolution process to protect their legal rights and interests.

2.1.1.2 The concept of equality before the law of the litigants in civil procedure

Equality before the law of the litigants in civil procedure is the equality,

without discrimination in legal procedure between individuals, agencies and organizations on legal status, rights and obligations for civil procedure and legal liability The court shall resolve the civil case independently, objectively and in accordance with law and shall have the responsibility to create conditions for the litigants to be equal in carrying out the civil procedure rights and obligations.

2.1.1.3 The concept of the principle of equality before the law of the litigants in civil procedure

The view “all citizens are equal before the law” dates back to ancient Greece,but it was not until the bourgeois revolution that it emerged as an importantprinciple of legislation The United States Declaration of Independence of 1776 andthe Declaration of the Rights of Man and of the Citizen of France in 1791 refer tothis principle [86] Nowadays, the principle that all citizens are equal before the law

is recognized in the Constitution of nations in the world, including Vietnam

The principle of equality before the law of the litigants in civil procedure is

the legal ideas which are decisive, compulsory, express oriented views of the State

in judging civil cases, provided for in civil procedure law, in which before the Court all citizens, agencies and organizations have equal legal status, are not discriminated against in the enjoyment of their rights, performance of obligations and legal responsibility, the litigants are all equal in terms of civil procedure rights and obligations The Court shall resolve the civil case independently, objectively and in accordance with law and shall have the responsibility to create conditions for the litigants to be equal in the exercise of their civil rights and obligations.