Regulations on statute đá bóng trực tiếp limitations in resolving civil cases in Vietnam: Practice and comments

Legal regulations

In countries around the world, when someone sues for property or demands debt repayment, the court's responsibility is to handle and examine the case. The judge is absolutely not allowed to provide the lawsuit initiation period "for the plaintiff. The reason is that enjoying the initiation period is one đá bóng trực tiếp the evidences that the defendant is allowed to present to protect their rights; moreover, the initiation period can be delayed, suspended, or interrupted, and the plaintiff can provide evidence to prove that. In general, providing conflicting evidence in a case is the responsibility đá bóng trực tiếp the parties; the judge only has the right to evaluate the evidence provided by the parties and then proceed with an objective judgment, not to provide evidence on behalf đá bóng trực tiếp either party.

In our country, before theCivil Code(CC) was issued in 2015, when resolving civil cases, the court was the competent authority to consider whether the case still had an initiation period or not. In other words, invoking the initiation period to reject the lawsuit was considered the responsibility đá bóng trực tiếp the judge and could be carried out actively and independently đá bóng trực tiếp the parties' requirements. This regulation has shown many shortcomings. Because the regulation on the initiation period aims to ensure the evidence. If an event occurs for too long, sometimes the evidence is no longer available, making the litigation difficult. However, not all cases are the same. There are cases that have been going on for a long time, but the evidence is still complete and can ensure the court's trial. In reality, the court has already tried this case at the first instance and appellate level, but after the director's protest, the verdict was annulled on the grounds that the lawsuit initiation period had expired. In this case, it seems that the court is using its authority to limit the rights đá bóng trực tiếp the parties and cannot guarantee the significance đá bóng trực tiếp applying the lawsuit initiation period.

The regulations on the initiation period in the CC 2015 have been revised and supplemented significantly. With these revisions and supplements, the rights and interests đá bóng trực tiếp the parties are better protected, and the true nature đá bóng trực tiếp civil relationships is properly demonstrated. In Clause 2, Article 149 đá bóng trực tiếp the CC 2015 and Clause 2, Article 184 đá bóng trực tiếp theCode No. 92/2015/QH13 dated November, provisions have been added to grant autonomy to the parties when participating in civil relationships, which is the choice đá bóng trực tiếp applying or not applying the initiation period in dispute resolution or civil matters with a period.

"The court only applies the provision on the initiation period according to the request to apply the initiation period đá bóng trực tiếp one or more parties, with the condition that this request must be made before the court đá bóng trực tiếp first instance issues a judgment or decision to resolve the case. The person benefiting from the application đá bóng trực tiếp the initiation period has the right to refuse the application đá bóng trực tiếp the initiation period, except in cases where the refusal aims to evade obligations."This is a very new provision for the initiation period. With this provision, the true nature đá bóng trực tiếp civil relationships as relationships that demonstrate freedom đá bóng trực tiếp agreement and decision-making by the parties is properly demonstrated. The court only applies the initiation period when one or more parties request it. The person benefiting from the initiation period has the right to refuse its application. Therefore, the court's authority is no longer determining the application đá bóng trực tiếp the initiation period. The court only has the authority to apply the initiation period when the parties request it. Moreover, this request must be made before the court đá bóng trực tiếp first instance issues a judgment or decision to resolve the case.

Real-life situation in Vietnam

On January 6, 2013, Ms. Nguyen Thi Bich H lent Ms. Nguyen Thi H1 an amount đá bóng trực tiếp VND 500,000,000, with a loan term đá bóng trực tiếp 2 months, and no interest rate was agreed upon. On July 5, 2014, Ms. H1 paid Ms. H an amount đá bóng trực tiếp VND 180,000,000, and Ms. H1 wrote a Commitment Letter stating that she would repay the remaining amount to Ms. H after transferring the land. On June 21, 2016, Ms. H1 transferred the land to Mr. Nguyen Van S. On July 15, 2016, Mr. S was granted a land use certificate, but Ms. H1 did not fulfill her obligation to repay the remaining amount đá bóng trực tiếp VND 320,000,000 to Ms. H according to the agreement in the Commitment Letter dated July 5, 2014.

On September 23, 2020, Ms. H filed a lawsuit demanding that Ms. H1 fulfill her obligation to repay Ms. H the principal loan amount đá bóng trực tiếp 320,000,000 VND and the late payment interest at a rate đá bóng trực tiếp 10% per year from July 15, 2016 to May 27, 2021 (the date đá bóng trực tiếp the trial). Ms. H1 admitted that the signature and the name written in the Loan Agreement dated January 6, 2013 and the Commitment Agreement dated July 5, 2014 belong to her, but she denied owing any money to Ms. H, claiming that she signed the agreements on behalf đá bóng trực tiếp another person named Huong. Furthermore, during the process đá bóng trực tiếp resolving the case from the time it was accepted until the People's Court đá bóng trực tiếp B town, B province, issued the judgment, both Ms. H and Ms. H1 did not request the court to apply the statute đá bóng trực tiếp limitations.

On May 27, 2021, the People's Court đá bóng trực tiếp B town ruled in favor đá bóng trực tiếp Ms. H and accepted all đá bóng trực tiếp her claims; it obligated Ms. H1 to repay the principal loan amount đá bóng trực tiếp 320,000,000 VND and the interest đá bóng trực tiếp 139,200,000 VND.

On June 25, 2021, the People's Procuracy đá bóng trực tiếp B province filed an appeal against Judgment No. 26/2021/DS-ST dated May 27, 2021, đá bóng trực tiếp the People's Court đá bóng trực tiếp B town, requesting the Provincial Court đá bóng trực tiếp B to partially amend the judgment đá bóng trực tiếp the first-instance civil case. Specifically, it requested that the court not accept Ms. H1's claim for late payment interest because the statute đá bóng trực tiếp limitations for the asset loan contract had expired.

The applied viewpoints

- The first viewpointargues that since both Ms. H and Ms. H1 did not request the application đá bóng trực tiếp the statute đá bóng trực tiếp limitations, the People's Court đá bóng trực tiếp B town did not apply the statute đá bóng trực tiếp limitations and obligated Ms. H1 to repay the interest đá bóng trực tiếp 139,200,000 VND, which is in accordance with the provisions đá bóng trực tiếp Article 184, Clause 2 đá bóng trực tiếp the Civil Procedure Code 2015.

- The second viewpointargues that the date when Ms. H knew about Ms. H1's breach đá bóng trực tiếp the repayment obligation was July 15, 2016, but she did not exercise her right to file a lawsuit demanding repayment from Ms. H1 until September 23, 2020, which had exceeded the statute đá bóng trực tiếp limitations for the asset loan contract according to the provisions đá bóng trực tiếp Article 150, Clause 3 and Article 429 đá bóng trực tiếp the Law on Civil Transactions 2015. In Article 155, Clause 2 đá bóng trực tiếp the Law on Civil Transactions 2015 and Point b, Clause 3, Article 23 đá bóng trực tiếpNghị quyết 03/2012/NQ-HĐTP hướngdated December 3, 2012 đá bóng trực tiếp the Judicial Council đá bóng trực tiếp the Supreme People's Court guiding the implementation đá bóng trực tiếp certain provisions in the first part "General Provisions" đá bóng trực tiếp the Civil Procedure Code, which were amended and supplemented by the Law amending and supplementing some articles đá bóng trực tiếp the Civil Procedure Code (referred to as Resolution No. 03/2012/NQ-HDTP), disputes over property ownership do not apply the statute đá bóng trực tiếp limitations. Therefore, in this case, Ms. H only has the right to file a lawsuit demanding repayment đá bóng trực tiếp the principal loan amount đá bóng trực tiếp 320,000,000 VND. The obligation đá bóng trực tiếp Ms. H1 to repay the late payment interest from July 15, 2016 to May 27, 2021 is not in accordance with the legal provisions and affects the rights đá bóng trực tiếp Ms. H1.

The author's viewpoint

The author agrees with the first viewpoint, with the following arguments:

- Firstly, the People's Court đá bóng trực tiếp B Town does not have the authority to apply the statute đá bóng trực tiếp limitations on its own, but must have a request from the parties involved in the case to do so. According to the provisions đá bóng trực tiếp Article 149, Clause 2 đá bóng trực tiếp the Civil Procedure Code 2015, and Article 184, Clause 2 đá bóng trực tiếp the Civil Procedure Code 2015, the court only applies the statute đá bóng trực tiếp limitations if Ms. H or Ms. H1 request it, or if both Ms. H and Ms. H1 request it, and this request must be made before the People's Court đá bóng trực tiếp B town issues a judgment to resolve the case. In cases where the person benefiting from the application đá bóng trực tiếp the statute đá bóng trực tiếp limitations has the right to refuse to apply the statute đá bóng trực tiếp limitations, except in cases where the refusal is intended to evade fulfilling obligations. It is clear that the request for the statute đá bóng trực tiếp limitations is a right attached to the individual's own interests. This person can choose to exercise it or not, and they can even refuse to exercise their right. With this provision, every time someone files a lawsuit to reclaim assets that someone else possesses, the court must consider the request for the statute đá bóng trực tiếp limitations. If the court has the authority to apply the statute đá bóng trực tiếp limitations on its own, it would create a situation where the court can decide the case based on its own discretion, which goes against the principle đá bóng trực tiếp party autonomy and fairness in civil proceedings.

- Secondly, Ms. H1 admitted that the signature and the name written in the Loan Agreement and Commitment Agreement belong to her, but she denied owing any money to Ms. H, claiming that she signed the agreements on behalf đá bóng trực tiếp another person named Huong. This claim by Ms. H1 raises doubts about the authenticity đá bóng trực tiếp the agreements and the identity đá bóng trực tiếp the borrower. Therefore, it is necessary to thoroughly investigate and verify the authenticity đá bóng trực tiếp the agreements and the identity đá bóng trực tiếp the borrower. This issue should be resolved before considering the application đá bóng trực tiếp the statute đá bóng trực tiếp limitations.

In conclusion, the author agrees with the first viewpoint that the People's Court đá bóng trực tiếp B Town did not have the authority to apply the statute đá bóng trực tiếp limitations on its own and that the obligation đá bóng trực tiếp Ms. H1 to repay the late payment interest should be upheld. However, it is necessary to thoroughly investigate and verify the authenticity đá bóng trực tiếp the agreements and the identity đá bóng trực tiếp the borrower before making a final decision.

Thirdly, regarding the basis for applying the law: Article 154, Clause 4 đá bóng trực tiếp the Law on Promulgation đá bóng trực tiếp Legal Normative Documents 2015 stipulates: "When a legal normative document expires, the detailed implementation regulations issued pursuant to that document also expire." Therefore, Resolution No. 03/2012/NQ-HDTP guiding the implementation đá bóng trực tiếp the Law on Marriage and Family 2004, as amended and supplemented in 2011, also expires when the Law on Marriage and Family 2004, as amended and supplemented in 2011, expires (from July 1, 2016—the effective date đá bóng trực tiếp the Law on Marriage and Family 2015). However, if the content đá bóng trực tiếp the expired legal normative document does not fundamentally change compared to the content đá bóng trực tiếp the detailed implementation regulations, the spirit đá bóng trực tiếp the expired legal normative document can still be applied. However, the provisions on time limits in Article 149, Clause 2 đá bóng trực tiếp the Civil Procedure Code 2015, and Article 184, Clause 2 đá bóng trực tiếp the Law on Promulgation đá bóng trực tiếp Legal Normative Documents on Marriage and Family 2015 are completely new provisions. Therefore, it is not possible to apply the spirit đá bóng trực tiếp Resolution No. 03/2012/NQ-HDTP to resolve this case.

The above is the personal opinion đá bóng trực tiếp the author, and I hope to receive many opinions and exchanges from readers and colleagues.

Phan Thanh Nhan, M.A. (B District People's Court, Dong Thap Province)

Source: “Tạp chí Tòa án” (Court Journal)

Key word: statute đá bóng trực tiếp limitations | in Vietnam | Vietnam | civil cases |

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