Thông tư liên tịch 04/TTLN

JOINT-CIRCULAR

ON THE IMPLEMENTATION OF SOME PROVISIONS OF THE ORDINANCE ON RECOGNITION AND ENFORCEMENT OF FOREIGN COURT'S JUDGEMENT AND CIVIL DECISIONS IN

For right and unified implementation of the provisions of the Ordinance on recognition and enforcement of foreign court's judgment and civil decision in Vietnam (hereafter called Ordinance), passed by the Standing Committee of the National Assembly on April 17, 1993 being in effect from July 1, 1993, the Ministry of Justice, the Supreme Peoples Court, the Supreme Peoples Organ issue together following

I. PRINCIPLES OF RECOGNITION AND IMPLEMENTATION

1. According to Article 2 (1) of the Ordinance, the Peoples Courts at the level of provinces, towns under Central government (hereafter provincial level) only take the case for examination of recognition and enforcement of foreign court's judgment and civil decisions in following cases :

- Judgment, civil decision of foreign court (hereafter : court decisions) of the country, which together with Vietnam is a party of an international treaty having provisions on the recognition and enforcement of each other's court's decisions.

- Courts' decision of the foreign country, that and have not yet signed or joined an international convention on this matter (recognition and enforcement of court's decision), but Vietnamese law has provided the recognition and enforcement of such decisions.

Until now, our State has not yet passed any law and regulation providing the recognition and enforcement of court's decisions of the foreign country, that and have not yet signed or joined an international convention on this matter. Consequently, for the time being, Vietnamese court shall only consider the recognition and enforcement of court's decision of the foreign country, that already

2. According to article 2 (4) of the Ordinance, not depending on the fact whether Vietnam and a foreign country are contracting parties to the international treaty concerning the recognition and enforcement of each other's court's decisions and for the case a foreign court's decision on civil matter has not required its enforcement in Vietnam, Vietnamese Court may consider the non-recognition of such decisions, if there is and application for non-recognition.

II. COMPETENCE OF COURT EXAMINING THE APPLICATION

1. To define which court has the competence to consider the recognition and enforcement of foreign court's decision in according to Article 4 (1) of the Ordinance we shall proceed as follow:

a) If the person who has to implement the court's decision is an individual, the case belongs first of all to the competence of provincial court, where the person who has to implement the court's decision resides. If the individual who has to implement the court's decision does not reside in but work in , the case belongs to the examination of the provincial court, where the individual works. If the individual does not reside and work in or it is impossible to define place where the individual lives or work, then the competent court is the provincial court where the relevant property is locating.

The recognition and enforcement of foreign court's decision concerning unmobile property such as real estate,

b) If the person who has to implement the court's decision is a legal person, then the competent court to deal with such application is always the provincial court where the legal person has its own Head office, unless Vietnamese law provides otherwise.

2. To define which court is the competent court to consider the application for Non-recognition of foreign court's decision which does not the require the execution in pursuant to article 4 (2) of the Ordinance, the following shall be

a) If the applicant is an individual, the competent court is the provincial court, where the applicant resides. If the applicant does not reside in , but work in , then the competent court is the provincial court in the location, where the .

b) If the applicant is a legal person, the competent court is the provincial court in the location where the legal person has its head office, unless Vietnamese law has provided otherwise.

III. TRANSLATION OF APPLICATION AND OTHER DOCUMENTS

1. Pursuant to the provisions in the articles 10, 11, 22 of the Ordinance, application and other attached documents shall be translated into Vietnamese and must be legally notarized. If the application and other attached documents were already translated into Vietnamese, then the legal notarization of the documents is the notarization based on legal procedure of the territory of the foreign country where the court has decided the case. Such notarization does not need to be legalized by (Vietnamese) consulate, if this country and Vietnam have signed joined and international treaty, which provided that not consulate legalization is needed. If this country and Vietnam have not yet signed or joined an international treaty concerning the matter (recognition and execution of foreign court's decision), then the application form and all attached documents to it must be notarized according to the legal procedure of the territory of the foreign court which has issued the court decision and additionally the application form and all attached documents to it must also be legalized by Vietnamese consulate according to the Ordinance on Consulate of November 13, 1990 (hereby attached the list of the countries having signed with Vietnam international treaty, which provides the exemption of consulate legislation on documents).

In the case the application form and the attached documents in foreign language were already translated in to Vietnamese in ,

After receiving the application form and the attached documents to it, the Ministry of Justice is responsible for checking the legality of the notarization of application form and the attached documents. If application form and the attached documents in foreign language (s) have not been translated in to Vietnamese, or notarized legally, then the Ministry of Justice shall return the application and the attached documents to the applicant and require him to follow strictly the provisions of the Ordinance.

2. The translation of the documents of Vietnamese courts from Vietnamese in to a foreign language for sending to a foreign court or the translation of the documents of foreign court from a foreign language in to Vietnamese for sending to Vietnamese court shall be conducted according to provisions of the international treaty, to which this country and Vietnam are contracting parties and which contains provisions on that matter. In case the documents of Vietnamese Court addressing a foreign court needs to be translated in to a foreign language, then the Ministry of Justice depending on the actual situations of each particular court and on the complexity level of that documents shall support the court in translating these documents from Vietnamese in to a foreign language as required.

IV. FEES

Applicant for recognition and enforcement of a foreign court's decision as well as the applicant for non-recognition and non-enforcement of foreign court's decision, which contains no requirement for enforcement in Vietnam must pay a fee send together with the application to the Ministry of Justice of Vietnam, unless they are exempted from paying fee pursuant to the Legal Assistance Treaty, which Vietnam has signed with the relevant state. Fee level, procedure to pay fees, the managing and using fees shall be implemented according to government's regulations.

V. SENDING AND RECEIVING FILES

1. After having received application form and the attached documents thereto, and after having checked the legality of such documents, the Ministry of Justice shall send the file to the competent court pursuant to the guidelines as specified in section II of this Circular. At the same time, the Ministry of Justice shall send copy of the file confirmation card to the Supreme Peoples Court, the Supreme Peoples Control Organ for information and exercising their power.

2. All documents in the file must be numerated in order and listed in the file confirmation card.

VI. DEALING WITH FILES AND PREPARING STEPS TO CONSIDER THE APPLICATION

1. After receiving files, the court has immediately to record in its case handling book and has to inform the Peoples Control Organ of the same level about it. The presiding judge (Director of the court) of the court, which has recorded the

Within four months, upon the date of recording the file by the court, the Judge appointed to be presiding court sitting must issue one of the decisions as provided in the para. a, b , c of sub article 1 of article 14 of the Ordinance.In case there is a requirement for clarification, this period shall be extended for another 2 months starting from the date the above said four months period has been completed.

In case of stopping the process of examining the application form pursuant to the provisions in para.

2. Immediately after having issued the decision to open the court sitting to consider the application, the court send to the peoples control organ at the same level to the court the decision to opening the court sitting and the file. The director of the peoples control organ (in this case, the chief procurator of this institution) shall appoint (one person - the procurator) his staff to study the file for purpose of attending the court sitting. By ending the period of fifteen days starting from the day of receiving the file, the peoples control organ (PCO) shall return the file to the court, in order to open the court sitting on time as provided in sub article 2 of article 14 of the Ordinance.

3. In case an application form for non-recognition of foreign court's decision, which does not contain requirement for being enforced in , has not followed the time as provided in article 21 of the Ordinance, the director of the court, which has recorded the file for examining, shall consider it and decide the restoration of prescription. The prescription can only by restored if the applicant can prove the objective reason (s) hindering the sending of application on time (such as severe illness, emergency hospitalization caused by accident, being absent because of long distance business travel ...)

VII. PROCEDURE OF EXAMINING THE APPLICATION FORM

1. The court sitting to consider the application must be conducted pursuant to provisions as stated in article 15 of the Ordinance and shall operate as

- A member of the judge panel announces the application form and the attached paper thereto concerning the requirement for recognition and enforcement of the foreign court's decision in or requirement for non-recognition of the foreign court's decision, which does not contain the requirement for being enforced in .

- The Judge panel shall not review the case but only check, compare the foreign court's decision and the attached paper thereto with other regulations of Vietnamese laws and with the provisions of the international treaties, which has signed or joined, referring to this matter.

- Person under the obligation of implementing the relevant court's decision or its legal representative being present at the court sitting shall represent their opinion.

- Representative of the PCO attending the court sitting shall state his opinions to the requirement of the applicant and to other issues relevant to the examination of the application.

- The judge panel shall discuss in secrecy and depending on which is relevant it shall issue one of the decisions as provided in sub article 5 of article 15 or sub article 2 of article 23 of the Ordinance.

2. In case there is a need to postpone the court sitting, the court has to reopen the court sitting at least in 30 days from the day it postponed.

3. The examination of the application must be recorded in the court sitting record. The record must be signed by the presiding judge and the court sitting secretary (secretary clerk).

VIII. ISSUING COPY OF DECISION AND EXAMINING APPLICATION FOR JUDICIAL REVIEW

1. Within a period of not later than seven days, from the date of issuing the decision, the court shall issue to the concerning parties and send to the PCO at the same level copies of the court's decision as provided in articles 14, 15, 23 of the Ordinance. In case concerning parties are not present in the court sitting examining the application, the court shall send to them (him) copy of the court decision ; if the concerning party is abroad, copy of the court decision will be sent via the Ministry of Justice.

2. Within 15 days from the date of receiving application for judicial review (made by the concerning parties themselvesor by the chairman of the supreme peoples court or by the chief procurator of competent PCO), the court, that has decided the case must send the application for judicial review as well as the file to the Supreme Peoples Court for judicial review.

3. The time limit to examine the application / requirement for judicial review and the judicial review shall be conducted pursuant to the article 19 of the Ordinance. The procedure of conducting reexamination of the court decision will be conducted in the same procedure of examining the application as stated in article 15 of the Ordinance and in section VII of this Circular.

IX. ENSURING THE IMPLEMENTATION OF FOREIGN COURT'S DECISION

According to sub article 1 of article 6 and article 20 of the Ordinance, the foreign court's decision having been recognised and enforced by Vietnamese court has the enforcement validity in as the Vietnamese court's decision, which is in force, does. Within 15 days from the date the decision of the provincial court concerning the recognition and enforcement of the foreign court's decision in has been in force, the court shall send copy of this decision and copy of the foreign judgement to the execution department at the same level to the court.

In case the Supreme review the decision, which is appealed (by the Chairman of the Supreme Peoples court) or protested (by the General Director of the Supreme PCO) at the same time, the Supreme Peoples Court sends copy of the reviewed decision to that court.

X. EFFECT OF THE CIRCULAR

This circular comes into force upon the date of signation and it shall replace the legal documents of the Ministry of Justice, the Supreme Peoples Court, the suprepe PCO having been enacted before guiding on the implementation of the recognition and enforcement of foreign court's decision in .

File (s) concerning requirement for recognition and enforcement of the foreign court's decision, which before the date of coming in to force of this circular, is (are) recorded in the record book for handling cases of the court but is (are) not yet examined by the court, then the examination of such file (s) must be conducted in accordance with the Ordinance and with this circular.

During the course of implementation, if there is any difficulty, the concerning institutions shall report to the Ministry of Justice, the Supreme Peoples Court, the Supreme PCO, in order to provide guidelines for finding out a solution.