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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 Major: Economic Law Major code: 9.38.01.07 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2019 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisors: Assoc Prof Dr Bui Thi Huyen 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 Sciences Library INTRODUCTION 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 firstinstance 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 firstinstance 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” 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 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 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 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 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 Structure of the dissertation Besides the introduction and conclusion and references, the dissertation includes chapters: Chapter 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 firstinstance 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 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 firstinstance procedures in Vietnam today 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 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 proceedingconducting 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 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 - 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 firstinstance procedures with the Judges who resolve the cases under the appellate procedures; reviewing judgments and decisions took effect \ Chapter 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 10 - 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 11 convicted by court and the sentence or decision took effect, he/she will automatically stop holding job title; in case of being sentenced to imprisonment by the Court but not entitled to a suspended sentence, he/she will automatically be dismissed - Judges are responsible for returning the State budget: In the course of performing official duties, judges who have committed illegal acts, causing material and mental damage to individuals or organizations, shall have to consider the compensation liability if the victims have written requests Compensation is first borne by the Court where the Judge is directly managed And then, the Judge must return part or all of the amount to the state budget that the State has compensated the victim 3.2 The reality of law enforcement on the legal status of Judges in resolving civil cases at the first instance level 3.2.1 The achieved results First, the independence of Judges when resolving civil cases is increasingly guaranteed; Second, quantity and quality of judges are strengthened and increased; Third, results of resolving civil cases of Judges are increasingly guaranteed in terms of quality 3.2.2 Shortcomings when performing provisions on the legal status of Judges in resolving civil cases at the first instance level In addition to the advantages and achieved results, the implementation of the Judges’ legal status in resolving civil cases at the first instance level still has many shortcomings, difficulties and obstacles - The principle of independence has not been fully implemented while the Judge hearing, as well as not determine correctly position and role of the Judge: first, the Judge and the trial panel are affected by external factor; second, the principle of independence when the Judge resolving case is negatively affected by the Judges themselves The principle of independence is also violated by the Judges themselves “allow” without protest or not dare to protest - The procedure of resolving civil cases is not reasonable: 12 First, from assume jurisdiction to trial, the Judge must perform a lot of procedures to notify and deliver to the litigants, many procedures are not necessary causing financial waste and time Second, provisions on prescription of lawsuit is not appropriate Third, provisions on meetings for checking the handover of, access to and disclosure of evidences and conciliation are not appropriate; - The procedure for resolving civil cases has not met the requirements of the technology revolution: Other areas of life including tax, finance, banking and public administrative procedures have been applying the achievements of technology revolution, technology 4.0 for its activities However, the procedure for resolving civil disputes at the People’s Court still exists rigid and inflexible proceedings The law has not yet provided the use of telephones, mail, zalo, and facebook in notices, summons of litigants, mediation notices, publicity - Situation of Judges violating procedural procedures when performing their duties and powers in resolving civil cases: First, Judges collect incorrect documents and evidence; Second, Judges (Trial panel) assess evidence inappropriately and not objectively; Third, errors due to lack of proceeding participants; Fourth, errors of Judges in resolving civil cases at the first instance level due to not guarantee procedure of collecting evidence; Fifth, Judges are confused the time to make a counterclaim of the defendant and the independent claim of persons with relevant rights and obligations; Sixth, many first-instance civil judgments are declared inaccurately content and inappropriate form; In addition, there are still cases that judges seek to extort the person concerned; with their poor qualifications lead to hinder civil procedure operation and reduce people’s trust into the legal policy - Classification of judgments and division of resolving civil cases at the first instance level are not appropriate, does not ensure the random, objective and fair elements 13 Chapter DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW AND EFFECTIVENESS OF JUDGES’ LEGAL STATUS IN RESOLVING CIVIL CASES AT THE FIRST INSTANCE LEVEL 4.1 Directions to improve the law on the legal status of Judges in resolving civil cases under the first-instance procedures 4.1.1 Directions to improve the Judge’s duties and powers In the field of civil procedures, directions to improve the Judge’s legal status should be developed in line with the nature of civil procedures Accordingly, it is necessary to restrict and remove a number of duties and powers of the Judge in collecting documents and evidence At the same time, heighten role of the persons concerned in finding and providing evidence to the Court to protect their rights and interests Thereby, the persons concerned could access and know the contents of documents and evidence as an important basis in implementing litigation principle Adding more rights for Judges when resolving civil cases at the first instance level such the right to notify by phone, email, internet or to perform some online procedures with participation of the People’s Procuracy, local government to deal with the case quickly, accurately, in accordance with the country’s requirement for industry 4.0 while simultaneously ensuring the right to litigation and access publicly evidence of the persons concerned Set up procedural procedures that may conduct online trials of disputes related to purchase and sale goods online by simple procedures and less time 4.1.2 Directions to improve the Judge’s responsibility At present, the Judge's responsibility includes: The Judge who has committed violations but not to the extent of being disciplined; disciplinary responsibility; compensate for damages; criminal responsibility Assessing the provisions on the Judge's responsibility, besides the advantages of improving the the Judge’s responsibility and ensuring the Court’s function of hearing, the provisions on the Judge's responsibility are too detailed, many sanctions can affect the career, leading to the “excessive caution” of each Judge when solving the case Directions to improve the Judge’s responsibility in resolving civil cases at the first instance level should enhance two contents: first, to build up a full and 14 uniform system of legal documents on the Judge’s responsibility to avoid overlapping between handling measures; second, to build up a system of classifying cases nationwide in a random and fair manner; to build up criteria for assessing the Judge’s capacity and responsibility based on the whole process of handling cases, it is necessary to rebuild criteria for the percentage of cases to be amended or canceled by a higher direction 4.2 Improving the provisions of the law on the legal status of Judges in resolving civil cases under the first-instance procedures 4.2.1 Improving the provisions related to determining the Judge’s position and role It is necessary to determine correctly the Judge’s position and role in the system of State agencies in general and the Court in particular, it is necessary to consider the Judge as a profession and creating conditions for the Judge’s independence to hear and enhancing education level In addition, it is necessary to have mechanism of periodic inspection on the trial quality, nature and violations or his/her health so as to dismiss Judges who no longer qualify 4.2.2 Improving the provisions on the Judge’s tenure It is necessary to study and stipulate uniformly the tenure of all Judges; increasing the tenure as well as retirement age for Judges so that they feel secure in their work, and as the basis for determining the Judges’ position compared to other public employees In fact, judges retired to be highly qualified persons and experiences in hearing After retiring, most of the judges continue to be lawyers, notaries, and participate in teaching 4.2.3 Improving civil proceedings related to the Judge’s duties and powers when resolving civil cases at the first-instance Court - Improving civil proceedings related to the Judge’s duties and powers when resolving civil cases at the first-instance Court: First, solving problems and shortcomings when the Judge conducts a meeting to check the handover, access, and publicity of evidence for complex civil cases involving many subjects, many fields and large assets, a thousand of documents and evidence, the meeting takes place the whole day or many days The law should stipulate the Judge just needs to notice the title of documents, if the person 15 concerned requests specific content of the document, the Judge just has to open that document Second, the procedural law should stipulate that the Judge has the right to make decisions to recognize a partial agreement when conducting mediation in the stage of trial preparation That decision will take effect immediately and is not appealed or protested Third, the law should stipulate that the Judge has the right to issue decisions to suspend partially settling the case for lawsuit, counterclaim, independent claim in the case of suspension under the Article 217 of the CPC The suspension is not related to the rest of requests Decision of suspending partially shall be considered costs respectively Fourth, improving regulations on procedures of notifying the persons concerned: In order for the persons concerned to fully and properly carry out their rights and obligations, right after accepting the cases, it is necessary to have regulations that the Judge should notify in document so that the persons concerned know their rights and obligations when participating in the proceedings When the Judge brings the case to trial, at the same time notify in writing the rights and obligations of the involved parties and other proceeding participants at the Court The purpose of the notice is that the persons concerned can fully exercise their rights such as: Requesting people to protect the legitimate rights and interests; providing documents and evidence; asking for summoning more witnesses before hearing to avoid having to postpone the trial - Improving procedures of resolving civil cases without the involved parties First, for cases, if an involved party is intentionally absent: the CPC must stipulate specifically the order and procedures for the involved parties who are intentionally absent and non-cooperate Accordingly, the Judge just needs to notify once or in document requesting the involved parties to be present at the Court in a specific time to participate in the proceedings such as self-declaration and public disclosure of evidence to reconcile and hear If the involved parties come to the Court, the Judges shall follow the usual procedural process; In cases, the involved parties are still intentionally absent, the Judges still conduct the proceedings without having to postpone or convene 16 Second, for cases, there is one involved party in the trial only, it is necessary to stipulate simple procedures, remove the content of argument procedures at the court; In case both the involved parties are absent, representative of Procuracy, agencies, organizations and other individuals (if any) just have opinions, then the Judge and the trial panel shall consider a verdict and making decision - Having regulations that the Judge or the trial panel has the right to amend and supplement the judgment in a broader, and the involved parties have the right to appeal the amendments and supplement since they receiving the amended and supplemented document Thus, this still ensures the involved parties’ rights and avoid cancelling or retrial the case In particular, the procedural law should have provisions that the Judge and the Trial Panel have the right to amend and supplement the decision to recognize the parties’ agreement; amend and supplement the suspension decisions and other decisions, these contents have not been prescribed by law 4.2.4 Improving regulations on responsibilities of Judges when conducting proceedings In addition to regulations on the Judge’s duties and powers, the CPC needs to have more detail regulations on responsibilities of the Judges and the Trial Panel Specifically, the Judge’s responsibility when accepting petition; the Judge’s responsibility as a chair; not as a chair; as an alternate and responsibility of the people’s Jurors Currently, the Judge might be disciplined, reimbursed (civil) and criminal liability when resolving cases In addition, according to Decision No 120/QDTANDTC, the Judge’s responsibility in cases not to extend of being disciplined, including various levels of handling such as self-criticism; suspend assigned works; to be arranged other works; have not considered the request for reappointing the Judge; not consider the request for reappointing the Judge However, the above decision may be an obstacle to the implementation of judicial reform in the Court system, affecting the Judge’s principle of independence Therefore, it is necessary to study and consider to amend and supplement the provisions of Decision No 120/QD-TANDTC by drawing experience; not considering emulation; force to learn more knowledge and professional ethics 17 Other violations under the regulation of the Law on Public Officials; the law on compensation of the State and the Criminal Code 4.2.5 Online court hearings with online trials Renewing administrative procedures and procedures of resolving cases consistent with the trend of technology and the world is an urgent requirement in the current period, when the number of cases is increasing, especially in the field of e-commerce and Internet Therefore, it is necessary to set up the online court hearings or online trials in Vietnam to apply some certain areas and pilot implementation in some courts with simple methods and procedures compared to normal procedures to ensure quickly and accurately 4.3 Improving the law enforcement on the judges’ legal status in resolving civil cases under the first-instance procedures 4.3.1 Renewing awareness and thinking about judges’ legal status in resolving civil cases under the first-instance procedures Currently, many people consider the People’s Court at all levels as an agency under administrative agencies or Party agencies For the persons concerned and other proceeding participants in many cases thought that it is just a civil case, so when summoned by the Judge, they did not cooperate or ignore, this leads to take time and cost This affects the position and role of the Court at all levels, as well as the Judge’s legal status Procedural law does not yet have an appropriate mechanism so that the judges to well perform their duties and powers, to protect justice, the rights and interests of the people The State agencies, organizations and individuals must consciously comply with the law, respect the solemnity, and protect the justice of the Judges That requires not only the State agencies but also the people to improve their understanding of the law; attitude towards the law and the ability to implement and apply the provisions of the law 4.3.2 Improving the capacity, qualifications and management of the judges in resolving civil cases under the first-instance procedures First, to further strengthen role of the agency who managing judges, the Council for selection and supervision of national Judges in ensuring the principle of independent trial and managing trial quality of judges Identify the Judges’ duties and powers in resolving cases including first-instance civil cases To 18 periodically perform the examination of the Judges’ qualifications and competencies It is necessary to strictly handle Judges who have committed violations under the law provisions, especially suspend Judges who have committed many times in a short time Second, the Courts need to regularly organize training courses to enhance knowledge and professional and political qualifications for Judges, in which, focusing on training new legal documents, hearing cases under new authority, withdraw experiences from appellate trial and training knowledge related to civil cases hearings, especially complicated civil cases In order to have an accurate, objective and fair judgment, the Judges not only master the law but also have certain insightful knowledge in other fields such as health, finance – banking, accounting, environment, land and construction Third, to implement effectively employment scheme The Judge as a special public official compared to other civil servants and officials in the state agencies, thereby, increase the salary and compensation levels so that the Judges feel secure in their work At the same time, continue to deploy the recruitment and appointment by examining openly and transparently for the Judges’ job titles To build up strategies of developing Judges in the People’s Court system To regularly review, improve standards and conditions on ethical quality, leadership, management and professional skills for Judges To carry out strictly and effectively the Judges’ property and income declaration 4.3.3 Ensuring the assignment of Judges in resolving civil case based on the principle of impartiality, objectivity and randomness Provisions on the principle of assigning cases impartiality, objectivity and randomness, for the first time, are stipulated by the CPC For the principle, a person who has been assigned as a Judge can solve all kinds of cases In fact, job assignment is still inadequate, the Judge could choose the case easily or the cases with familiar relations The assignment of first-instance civil cases in particular and civil cases in general must be based on the principle of impartiality, objectivity and randomness, which contributes to ensuring the principle of independence and fairness To well implement this principle, the Court's leadership to be impartial for the work, is not for affection, finance 4.3.4 Enforcement of judgment and to report judgment 19 In the world, enforcement of judgment and report judgment of Judges before the leader and management agency are one of the factors determining whether or not independence in the trial At that time, the decision of the Trial Panel and Judges was not their will, not based on the process of litigation between involved parties, but depend on the subjective will of a few of leaders A developed country’s judiciary will ensure that justice and human rights are always associated with the independence in the trial In Vietnam, there are still enforcement of judgment and report judgment before hearing in some Courts This has been happening in the People’s Court system We not deny the positive side of the enforcement of judgment and report judgment of the Judge who directly resolve and hearing civil cases toward the court leaders, is that united application of law The head of agency and unit must take major responsibility in managing work, especially the trial quality, not abuse the trial, exchange professional opinions to review the cases or impose personal views against the principle of independent trial and just comply with the law in resolving cases Therefore, in order for the Judge, the trial Panel can hear independently, will be an urgent requirement that must be respected 4.3.5 Improving duties, powers and responsibilities of other entities that affecting the judge’s legal status First, duties and powers of the alternate Judge: For the first time, the Article 197 of the CPC stipulates the assignment of Alternate Judge along with the Judge to resolve the case However, the law does not specifically stipulate the duties, powers and responsibilities of alternate Judges in the preparation of hearing or they have rights or opinion regarding the collection of evidence of the Judge In fact, when hearing the case, the Judge cannot carry out the task, the Alternate Judge will replace However, the case will be lasted and wasting time and cost if the alternate Judge thinks that such documents and evidence are in complete, lack of proceeding-conducting persons or the Judge committed violation of collecting documents and evidence These inadequacies have not been solved by the 2015 CPC Second, for the people’s juror: The People’s juror and judge are the proceeding-conducting persons when hearing civil cases There is independence between the Judge and the People’s juror but they have a close procedural 20 relationship Therefore, it is necessary to improve regulations on the People’s juror in order for the Judge to well perform the duties, powers and responsibilities Civil procedure laws need to stipulate that the People’s juror participates in the proceedings since accepting the case so that the People’s juror can study documents collected by the Judge, together with the Judge make the next issues and contents At the same time, the People’s jurors have more time to study legal documents, because most of them concurrently work other jobs, they have not broad legal knowledge, and showing position and role of the “representative of the people” to give opinions in the Court’s trial activities Every year, the People’s jurors must be adequately trained professional In addition to the Judge’s responsibility, the law must stipulate responsibility of the people jurors so that they are more responsible in conducting proceedings At the same time, it is necessary to have incentive, rewards and discipline for the people jurors Third, for procurators: Article 58 of the CPC stipulates prosecutors participate in civil hearings However, the civil procedure law has not stipulated highlighting the procurator’s role in proceedings The law has not had provisions for procurators to request or make written recommendations after reading files transferred by the Court In our opinion, it is necessary to supplement this provision so that the Judge can review and correct deficiencies (if any) before the trial takes place to avoid the situation, procurators propose errors in the process of preparing trial, then the trial panel must postpone the trial leading to time and costs waste At the same time, the civil procedure law should have provisions that the Judge is allowed to collect evidence after having decision of trialing the case (only for cases proposed by procurators) and at the court Fourth, for defense counsel of rights and interests of the litigants: The participation of the defense counsel of rights and interests of the litigants is important in set up the files of the case and adversarial process at a court hearing, making an important contribution to the judicial reform under the Politburo’s Resolutions No 08/NQ-TW dated January 2002 Most of the defense counsel of rights and interests of the litigants are lawyers who understand the law, so they will hear the case accurately and in time 21 The defense counsel of the lawful rights and interests of the litigants participates in the proceedings when the litigants request and the Court register for defense counsel of the lawful rights and interests of the litigants (Article 75 of the CPC) the court is not obliged to ask someone to protect its lawful rights and interests However, in the context of increasing civil cases, complicated subjects, the litigants have not been proactive in collecting evidence to protect their rights and interests, the trial quality of the judge is not high, it is necessary to regulate the participation of the defense counsel of the lawful rights and interests of the litigants in some cases such as disputes over land use rights, house ownership, commercial disputes, cases with high cancellation and correction rates In fact, the cases involving the defense counsel of the lawful rights and interests of the litigants will help the Judge to further collect evidences and limiting the violation of the proceedings of the Judge, the litigants are less likely made obstacles when the Judge conducts the proceedings 4.3.6 Strictly comply with the regulation on handover documents and evidence by the parties, individuals, agencies and organizations The litigant’s handover documents and evidence is the right and obligation In the process of resolving the first-instance civil cases, the Judges must strictly carry out their tasks and powers while simultaneously guiding and explaining the litigants and other proceeding participants could implement properly their rights and obligations For the litigants, the Judges should request the litigants themselves to collect documents and evidence to protect their lawful rights and interests In case of requesting agencies and organizations to supply evidence, the Judges must issue Decision on the supply of evidence to ensure the legal values of proceedings, obligation and time to provide evidence of agencies or organizations who are required In cases, for those who must provide evidence but they deliberately didn’t submit evidence to the Court, the Judges shall base upon the provisions of Article 489 of the CPC to handle administratively the act of refusing to provide documents without the legitimate reasons 22 CONCLUSION The Judges have not only an important position and role in the Court system but also for judicial activities in general The proceedings of the Judges are in the name of the State to define the rights and obligations of the subjects, so it is necessary to clarify and complete the provisions on the legal status of Judges Based on the identification of research subjects and scope, in order to achieve the research purpose, the dissertation has in turn addressed the research tasks The dissertation has achieved the following findings: The dissertation has introduced the concept of the Judges’ legal status in resolving civil cases at the first instance level is overall obligations, powers and liabilities of the Judges 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 Since then, the study contributes to identify fully and accurately the Judges’ legal status in resolving civil cases at the first instance level At the same time, the dissertation has also analyzed the legal bases to identify the basic elements of the Judges’ legal status in resolving civil cases at the first instance level in Vietnam today, including the Judge’s duties, powers and responsibilities in resolving the first-instance civil cases Thenceforth, the dissertation has proposed solutions to improve the law and effectiveness of the Judge’s legal status in resolving the first-instance civil cases nowadays The dissertation has synthesized the reality of provisions of the law and the law enforcement on the Judge’s legal status in resolving civil cases at the first instance level in Vietnam today It has also analyzed the achievements and shortcomings of the Vietnamese law, as well as inadequacies and limitations in the process of applying the law Since then, the dissertation has provided comprehensive directions and solutions to improve the law on the Judge’s legal status in resolving the first-instance civil cases, as well as the Judge’s legal status in general 23 The author’s published research works list Vu Thanh Tuan (2017) The prescription under the provisions of the 2015 Civil Code, Journal of The People’s Court, No Vu Thanh Tuan (2018) On the role and power of the Judges in resolving civil cases at the first-instance level under the civil procedure code, Journal of Social Science Manpower, No Vu Thanh Tuan (2018) Discussing some provisions of the 2015 Civil Procedure Code, Journal of The People’s Court, No 24 ... 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 Sciences, Vietnam Academy of Social Sciences Supervisors: Assoc Prof Dr Bui Thi Huyen Dr Nguyen Van Cuong Reviewer 1: Prof Dr Le Hong Hanh Reviewer 2: Prof Dr Hoang The Lien... 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
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