Địa vị pháp lý của thẩm phán trong giải quyết vụ án dân sự sơ thẩm ở việt nam hiện nay tt tieng anh

Research purpose The dissertation aims to examine systematically the theoretical and practical issues on the legal status of Judges in resolving civil cases at the first-instance level

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

L

VU THANH TUAN

THE LEGAL STATUS OF JUDGES IN

RESOLVING CIVIL CASES AT THE FIRST INSTANCE LEVEL IN VIETNAM TODAY

The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences

Supervisors: 1 Assoc Prof Dr Bui Thi Huyen

2 Dr Nguyen Van Cuong

Reviewer 1: Prof Dr Le Hong Hanh

Reviewer 2: Prof Dr Hoang The Lien

Reviewer 3: Assoc Prof Dr Bui Ngoc Cuong

The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi

Time: ………… date ……… month …… …year 2019

The dissertation may be found at:

- Vietnam National Library;

- Graduate Academy of Social SciencesLibrary

INTRODUCTION

1 The necessity of the research topic

According to the law, civil procedure is applied for resolving commercial cases, marriage and family, labor and civil matters In recent years, cases of civil, marriage and family, business, commercial and labor disputes have been increasing both quantity and complexity Especially, business and commercial disputes that the Court has to handle and resolve Disputes are not only increasing quantity but also complexity of contents Disputes are not merely a certain field but related to many different fields such as investment, finance, banking, goods trading, the rights to use land and houses This makes difficulties and obstacles to the Courts’ ability to resolve cases

The Court’s operation is mainly expressed through the Judge’s trial When resolving cases, the Judge takes part in all proceedings, in which, the first-instance trial under the Civil Procedure Code plays a very important role When resolving civil cases by common procedures, besides the Judge, there are also the People’s Jurors, but the Judge’s role is still the leading decisive factor for the quality of resolving civil cases at the first-instance level In particular, the first-instance civil cases are resolved by simplified procedures without the People’s Jurors, the Judge is the only person who makes decisions for civil disputes

In fact, there are many shortcomings and obstacles in the process of resolving civil cases at the first instance level, causing many difficulties for Judges when conducting procedures Meanwhile, the legal status of the Judges has not been fully and clearly stipulated by law The Judge’s duties and powers in collecting documents and evidence are higher than the persons concerned; many persons concerned are not aware of the justification for their request; procedural order for resolving civil cases at first-instance level is not reasonable On the other hand, there are still many errors in resolving civil cases by the Judges, there are many civil procedural violations, the rate of first-instance civil judgments being canceled or corrected by subjective errors is still high, some cases are still overdue; the Judge’s initiative and creativity are still limited; the coordination between Judge and the People’s Jurors and Secretary is not really effective The mechanism to ensure the civil procedure activities of judges has not been really concerned and completed In other words, there is no clarity on both theoretical

and practical perceptions on the legal status of the Judges in the civil procedure in general and in resolving civil cases at the first-instance level These causes have directly affected the Court’s trial quality as well as the rights and interests of the state and the people Therefore, by examining the legal status of the Judges in resolving civil cases at the first-instance level in line with the new situation, thenceforth, proposing solutions and mechanisms to effectively implement the legal status of the Judges and relevant civil procedures so as to contribute to implement the goals of judicial reform of the Party and the State Therefore, it is really necessary theoretically, practically and legally to conduct the doctoral

dissertation titled “The legal status of Judges in resolving civil cases at the first

instance level in Vietnam today”

2 Research purpose

The dissertation aims to examine systematically the theoretical and practical issues on the legal status of Judges in resolving civil cases at the first-instance level in a broad sense (including cases of civil, marriage and family, labor and commercial disputes); propose solutions to improve the law on the Judge’s legal status

3 Research subject and scope

Research subject is the system of views, guidelines and policies of the Party

and the State, the provisions of the law on the legal status of Judges in resolving civil cases at the first-instance level in Vietnam and some countries around the world, cases, reports on the situation of law enforcement on the Judges’ legal status in resolving civil cases at the first-instance level in Vietnam

Research scope: The study examines the legal status of Judges in resolving

civil cases at the first-instance level in a broad sense (including commercial cases, marriage, labor and civil cases) under the existing law of Vietnam Specifically, the legal status of Judges is determined after accepting the case and assigned by the Court’s leader to resolve the case according to regulations At the same time, considering the implementation of the Judges’ legal status in resolving civil cases

at the first instance level in practice In addition, in order to compare the legal basis and practice on the legal status of Judges, the dissertation will explore the concepts and legal provisions of some countries on the legal status of Judges in resolving civil cases at the first instance level

4 Methodology and research methods

The dissertation is based on the methodology of Marxism - Leninism and Ho Chi Minh thought about the State and the law

The dissertation uses specific research methods such as: methods of synthesis,

analysis, historical analysis, comparison and statistics

5 New contributions of the dissertation

In addition to inheriting some relevant issues of previous research works, the dissertation has new contributions as follows:

- Regarding the approach: the dissertation not only approaches the issues of the legal status of Judges in Vietnam today but also examines the legal status of Judges in resolving civil cases at the first instance level The Judges’ legal status

is comprehensively studied in terms of duties, powers and responsibilities of the Judges when resolving civil cases at the first instance level

- The dissertation presents concept, basic elements and characteristics of the Judges’ legal status in resolving civil cases at the first instance level in Vietnam today

- The dissertation evaluates the reality of the provisions of the law and the law enforcement on the Judges’ legal status in resolving civil cases at the first instance level in Vietnam It also points out the limitations and shortcomings of the law on duties, powers and responsibilities of the Judges when resolving civil cases at the first instance level as well as limitations and shortcomings in the process of applying the law on the Judges’ legal status when resolving civil cases

- The dissertation provides orientations and solutions to improve the law and improve the Judges’ legal status, thenceforth, contributing to improving the effectiveness of resolving civil cases of the Judges These solutions, on the one hand, improve the Judges’ legal status, on the other hand, improve the proceedings to resolve civil cases at the first instance level in a scientific manner

to resolve quickly and legally cases

6 Theoretical and practical significance of the dissertation

Theoretically: the dissertation provides a comprehensive perspective on the

issue of the legal status of Judges in resolving civil cases at the first instance level; building and perfecting the legal status of Judges in civil procedures and procedures for resolving civil cases at the first instance level

Practically: the dissertation’s solutions will be a useful reference for

improving the law on the legal status of Judges in general, and the Judges’ legal status in resolving civil cases at the first instance level in particular The dissertation can be used as teaching and learning material in the field of civil procedure law and economic law

7 Structure of the dissertation

Besides the introduction and conclusion and references, the dissertation includes 4 chapters:

Chapter 1 LITERATURE REVIEW 1.1 Research situation

By reviewing literature, we can see the achieved results of the research activities as follows:

First, previous research works have initially introduced concept and

importance of the legal status of Judges in resolving civil cases is to conduct trial and deal with matters arising from the legal relationship of marriage, family, civil, labor and commercial business

Second, determining the content of the Judges’ legal status in resolving civil

cases at the first instance level and factors expressing and determining the legal status of the Judges The legal status of Judges in resolving civil cases at the first instance level not only based on the specific provisions of the civil procedure Code (CPC), but also based on the Judges’ role and position in the in adjudication – an important element of judicial rights

Third, proposing recommendations to improve the law and the Judges’ legal

status in the reality Proposing solutions to build standards, process for planning and appointing Judges to meet the requirement of judicial reform, international integration and the best assurance of the rights and obligations of the people; solution on the independence of Judges

1.2 Issues have not been thoroughly resolved

First, concepts of the judge as a subject of the civil procedure law with certain

rights and obligations have not been examined to determine their responsibilities when performing those rights and obligations, for example, the Judge’s liability

on administration (disciplinary), criminal and return the case when the case is not

judged correctly Therefore, this concept will be further researched in the dissertation

Second, previous research works basically provided criteria and factors in

different perspectives to determine the Judges’ legal status in resolving civil cases

at the first instance level However, these works have just given common factors

to determine the Judges’ status in civil procedures These works have not yet adequately systematized factors to determine the Judges’ legal status in resolving civil cases at the first instance level

Third, previous research works have just initially analyzed legal regulations

without comprehensive evaluation In particular, they have not yet deeply analyzed the provisions determining the Judge’s liability, one of the important contents on the Judge’s legal status In addition, according to the 2013 Constitution, Law on Organization of People's Courts 2014, the 2015 CPC, currently, the provisions of the law have many changes of the rights, obligations, liabilities, role and position of Judges

Fourth, previous works have basically presented restrictions when the Judges

resolve civil cases at the first instance level However, previous authors have not yet assessed the real situation of implementing legal status of Judges in civil cases

at the first instance level, moreover, most studies were conducted before issuing the 2013 Constitution and acts on Court organization and proceedings issued in

2014 and 2015 Therefore, previous studies have not been able to assess the current status of the provisions of the Constitution and acts which have just been issued that whether really improve the Judge’s legal status in resolving first-instance civil cases or not

Fifth, previous research works have proposed various solutions to improve

regulations on the rights to adjacent real estates in Vietnam However, there have not been so far any works analyze deeply solutions of improving liability, and these solutions are not consistent with the world trend and the revolution 4.0

1.3 The posing issues need to be further studied in the dissertation

First, the dissertation will introduce the concept of “the legal status of judges

in resolving civil cases at the first instance in Vietnam today” in accordance with new conception of the 2013 Constitution on the role and position of the Court and Judges, new conception of judicial rights The dissertation aims to determine the

internal meaning of the Judge’s legal status in resolving civil cases at the first instance level under the existing law of Vietnam

Second, the dissertation will give elements to show and determine the legal

status of the Judges in resolving the first-instance civil cases under the existing law of Vietnam These elements specify the position and role of the Judges, as well as their duties, powers and responsibilities in resolving the first-instance civil case At the same time, the study will compare with the position of the Judge in resolving civil cases at appeals, cassation and retrial level, and criminal cases and other proceeding-conducting persons

Third, the dissertation will analyze specifically the provisions of the law on

the Judges’ duties, powers and liabilities in resolving civil cases at the first instance level Thenceforth, it will evaluate the advantages and disadvantages of the provisions of the law, the reality of resolving civil cases by the Judges and compare to the Judges’ duties, powers and liabilities of some other countries It also clarifies the causes of limitations and shortcomings when the Judges performing their duties, powers and liabilities to resolve the first-instance civil cases

Fifth, the dissertation proposes some new solutions to further improve the

Judges’ rights and obligations and recommend how to resolve civil cases in line with each type of civil cases such as marriage and family, labor, business and commercial disputes

Chapter 2 THEORETICAL ISSUES ON THE LEGAL STATUS OF JUDGES IN RESOLVING CIVIL CASES AT THE FIRST INSTANCE LEVEL 2.1 Concept and basic components of the legal status of Judges in resolving civil cases at the first instance level

2.1.1 Concept of first instance procedures of a civil case

The first-instance procedures of a civil case are defined as individuals, agencies and organizations in dispute submit petitions to the court and are assumed and resolved by the court as a basis for resolving their rights and obligations or of individuals, agencies and organizations

2.1.2 Concept of legal status of Judge

From the analysis and assessment of the legal status of Judges, we introduce

the following concept: The legal status of a Judge is the Judge’s duties, powers and responsibilities stipulated by law, expressing the Judge’s position in relationship with subjects in the state apparatus and procedural law

2.1.3 Concept of legal status of Judge in resolving civil cases by instance procedures in Vietnam today

first-On the basis of reviewing the internal aspect of the Judge’s legal status in resolving civil cases at the first instance level, we introduce the following

concept: The Judge’s legal status in resolving civil cases at the first instance level

is overall obligations, powers and liabilities of the Judge in the relationship with other subjects when conducting proceedings and applying the provisions of the law for resolving civil cases under the first-instance procedure, in accordance with the law, and determining legal consequences when the judge does not comply with the law

2.1.4 Basic elements of the Judge’s legal status in resolving civil cases at the first-instance level

- The Judge’s duties in resolving civil cases at the first-instance level are works that the Judge must do since he is assigned solving the case until the issuance of first-instance judgments or decisions and works related to the case in accordance with civil procedure

- The Judge’s power in resolving civil cases under the first-instance procedures is the right to decide conducting proceedings and issuing their procedural decisions from they are assigned solving the case until the issuance of judgment and other rights related to the case under the provisions of civil procedural law

- The Judge’s liability in resolving civil cases at first-instance court is that the judge is sanctioned by the provisions of the law for failing to properly perform their duties and powers

2.2 Elements expressing and determining the legal status of Judges in resolving civil cases at the first instance level

Political, economic, socio-cultural and legal elements always impact on the Court system in general and the legal status of procedural subjects in particular,

including Judges When resolving civil cases by the first-instance procedures, elements expressing and determining the Judges' legal status are shown as follows:

2.2.1 The Judge’s position and role in the Court system and in the State apparatus

The People’s Court is the only body exercising judicial rights with an independent position and indispensable part of the state apparatus Amongst the judicial agencies, the Court is the judging body and has the most important position and role

In the State organizational system, the Judge is a civil servant, working in the People's Court and a directly proceeding-conducting person As the person assigned hearing of the Court, the Judge has an important and indispensable position in exercising one of the powers of the State

2.2.2 The Judge’s legal status is expressed through independent trial

Any country in the world also considers the Judge’s principle of independent trial to be one of the most important ones, ensuring a stable and fair legal regime Those are necessary elements for a fair trial On the basis of the Code of Ethics for Judges dated July 4, 2018, elements of judicial independence of the Judges including the Judges make their own decisions based on their assessment on circumstances and evidences of the cases and comply with the law; the Judges must maintain professionalism, not affected by any intervention; the Judges must

be independent persons from Panelists and independence from other conducting persons; especially, the Judges must be independent persons from internal and external factors of the Court Those are necessary elements for the Judges to issue a fair judgment

proceeding-2.2.3 Vietnam’s civil procedure model

The Judges’ role in each form of proceedings is different, leading to different provisions on the Judges’ duties, powers and responsibilities In civil procedure model of Vietnam, the Judges engage in proceedings, from the collection of evidence and documents to hearing cases When resolving a civil case, on the one hand, the Judges must ensure two elements are litigation and interrogation in accordance with the order of the CPC, on the other hand, they must apply

accurately and fully the provisions of the law so as to give the “final product” is that a correct judgment and decision

2.2.4 The nature of a civil case shows the judges’ legal status

First, the nature of the legal relationship is the basis for defining the Judge’s

duties and powers when resolving cases The Judges comply with the proceedings and depending on the scope of trial and the limit of trial of each type of procedural relations stipulated by law In civil proceedings, the Judge’s role is more clearly shown, adjudicating cases involving many different fields The judge directly set up files of the case by collecting documents and evidence; applying temporary emergency measures; organizing meetings to check the handover, publicize evidence and mediate; prepare files of the case, directly conduct trials and issue judgments and decisions

Second, from the perspective of proceeding-conducting under the

first-instance, appellate process, reviewing judgments (cassation, review court), when hearing first-instance civil cases, the Judges must do many more duties and powers than others at other proceedings In addition, their responsibility is very heavy when resolving incorrectly cases, especially, violating civil procedures

Third, considering the Judges’ legal status in relation to the

proceeding-conducting persons when resolving civil cases at the first instance level The judge is the conducting-proceeding person along with Procurator, People's Jurors and Court clerk, but is the most important proceeding-conducting person

2.3 The relationship between the judge’s legal status and other entities when resolving civil cases according to first-instance procedures

- The relationship between the Judge’s legal status and the Court’s Tribunal president at the same level;

- The relationship between the Judge’s legal status and the People's Juror’s legal status;

- The relationship between the Judge’s legal status and the Procurator’s legal status representing the People's Procuracy;

- The relationship between the Judge’s legal status and the Court’s clerk and inspector’s duties and powers

- The relationship between the Judge’s legal status and the litigant’s legal status;

- The relationship between the Judge’s legal status and competent agencies, organizations and individuals in providing documents and evidence;

- Assessing the legal status of the Judges in resolving cases under the instance procedures with the Judges who resolve the cases under the appellate procedures; reviewing judgments and decisions took effect

first-\

Chapter 3 THE REALITY OF THE JUDGE’S LEGAL STATUS IN RESOLVING CIVIL CASES AT THE FIRST INSTANCE LEVEL UNDER THE

EXISTING LAW 3.1 The reality of the provisions of the law on the Judge’s legal status in resolving civil cases under the first-instance procedures

3.1.1 The reality of the provisions of the law on the Judge’s duties and powers in resolving civil cases under the first-instance procedures

- The Judge’s duties and powers in the stage of lawsuit and assume civil cases

- The Judge’s duties and powers in the stage of preparing for hearing of civil cases at the first instance level include:

First, determining status of litigants and other participants; determining

disputes in the relationship among the involved parties and the applicable law;

Second, setting up files of civil cases; collecting evidences and organizing

court panels

Third, requesting the Court’s Tribunal president assigns inspectors to support

Chief Justice of the Court to assign examiners to support proceeding-conducting;

Fourth, issuing procedural decisions;

Fifth, explaining and guiding the litigants so that they request legal aid in

accordance with the law on the legal aid;

Sixth, conducting meetings to check the handover, access, disclosure of

evidence and mediation; issuing a decision to recognize the agreement of the litigants;

Seventh, the decision of hearing the civil case and to summon participants;

- The Judge’s duties and powers at court including stipulations on procedures for starting the trial; procedures of litigation; to consider a verdict and sentencing procedures

- The Judge requests the Chief Justice of the Court to propose the competent State agency to consider, amend, supplement or abolish legal documents;

- Handling acts of obstructing civil proceedings under the provisions of the law;

- The Judge’s duties and powers after the conclusion of a first-instance civil trial including amendment and supplement of judgments; the Judge issues a copy

of judgments; delivery and sending judgments;

- Conducting other proceedings when resolving civil case under the provisions

of the CPC;

- Judges' legal status when dealing with cases by the abridged procedure

3.1.2 The reality of the provisions of the law on the Judge’s liability in resolving civil cases at the first-instance court

- The Judge's liability when violating but not to extent of being disciplined: In addition to the provisions on disciplinary liability, civil liability (compensation) and criminal liability, the Supreme People’s Court has regulations on handling persons holding judicial titles in the People’s Courts who commit acts of violations due to irresponsibility or violations while performing assigned tasks but not seriously enough to be disciplined under Decision No 120/QD-TANDTC, dated June 19, 2017 of Chief Justice of the Supreme People’s Court

- Disciplined responsibilities: Violations of Judges in the process of resolving civil cases at the first instance level in particular and official duties in general, will be disciplined or or be prosecuted for criminal liability or both Judges are the State employees, so the discipline against them also comply with the general regulations for public employees The Law on officials and public employees has six forms of disciplines including written reprimand; verbal warning; lower wage level; downgrade; demotion and dismissal Depending on the seriousness and nature of misconduct, the Judge may be applied by the above disciplinary measures

- Criminal liability:

Criminal liability is applied for Judges is the most severe kind of liability for acts of infringing on the correctness of proceedings The current Criminal Code prescribes crimes of infringing upon judicial activities, commit crimes to proceeding-conducting persons and proceeding participants In case the Judge is