Some Difficulties In The International Legal Mandate Performance Of Civil12/03/2020 admin
In the current globalization trend, civil disputes involving foreign element(s) are increasing. Legal mutual assistance in general and civil legal assistance is an effective tool that countries can support and help each other on judicial issues based on international treaties, or the principle of reciprocity, however, do not contravene Vietnamese law and conform to international law and practice. Currently, Vietnam has a legal framework for mutual legal assistance and signed legal assistance agreements with several countries around the world. As of July 2017, Vietnam has participated in signing 27 mutual legal assistance agreements with some countries in the world, of which, there are about 20 civil legal assistance agreements. However, the fact that the implementation of mutual legal assistance activities between Vietnam and other countries shows that there are still many limitations and difficulties, so the international mutual legal assistance activities between Vietnam and other countries have not been productive.
Under the provisions of the Law on Legal Assistance 2007, mutual legal assistance shall be conducted at the request of competent Vietnamese authorities or foreign competent authorities through legal mandate which is a written request from a Vietnamese competent authority or foreign competent authority to conduct one or several judicial assistance activities under the laws of the relevant country, or the provisions of treaties to which Vietnam is a contracting party. In the field of civil, the Court, the competent authority of Vietnam in the course of resolving civil cases may require the foreign competent authority to perform judicial assistance related to civil proceedings in the cases specified in Article 13 of the 2007 Law on Judicial Assistance, specifically as follows:
- Service of papers, dossiers, documents on persons who are staying in the requested countries;
- Summon of witnesses and experts who are staying in the requested countries;
- Collection and supply of evidence in the requested countries for settlement of civil matters in Vietnam;
- Other circumstances prescribed by Vietnamese law.
Accordingly, in recent years, the number of legal mandate records of Vietnamese Courts abroad is larger than the number of foreign legal mandate dossiers for Vietnam. However, the results that the competent authorities in Vietnam carry out the mandate abroad are low, and meet many difficulties as follows:
Firstly, the system of documents guiding the laws and laws on mutual legal assistance of Vietnam is still incomplete, inconsistent and specific, leading to the difficulties of the authorities. Meanwhile, previously signed agreements are still of general regulations and have not been explained, so it is not easy to apply.
Secondly, the language in legal assistance.
According to Article 5 of the Law on Legal Assistance 2007, the language in mutual legal assistance is prescribed as follows:
- To a country to which Vietnam has signed a treaty on mutual legal assistance, the language shall comply with the provisions of that international treaty.
- To countries where Vietnam has not signed international treaties on mutual legal assistance, dossiers must be enclosed with a translation in the language of the country requested to provide legal assistance or a translation in another language accepted by the requested country.
However, the translation of legal mandate documents into the languages of other countries in the world is still very inadequate and limited, such as non-standard translation, not in the style of the judicially delegated country or region, or does not meet the general standards of legal terms when translated, … Besides, the foreign language proficiency of Vietnamese Court officials is still limited, so reviewing and checking the accuracy of translated contents of legal mandate documents is not guaranteed.
Thirdly, the process and procedures go through many competent management agencies in Vietnam to the competent authorities in foreign countries, which takes a lot of time for the implementation of this judicial activity. For example, in the course of resolving a civil case, the District Court deems it necessary to carry out judicial entrustment, it must be submitted to the provincial Court. From the provincial Court, the dossiers continue to be transferred to the Ministry of Judicial, then come to a foreign competent authority.
Finally, the case may be prolonged because it is impossible to verify the correct address or information of the foreign litigants.
There are a lot of cases, the results of legal mandate cannot be performed because the litigants in Vietnam do not provide or do not know the exact addresses and information of the involved parties in foreign countries that need to be judicially entrusted. Therefore, in the course of resolving the case, the Court also has no basis to verify and serve the litigants abroad. In cases where the trust does not work, the Court will continue to perform the procedures prescribed by law. However, the total duration of judicial entrustment prescribed by the Civil Procedure Code is at least 16 months, counting from the date the Court issues a written notice of acceptance. Upon expiry of this time-limit, the Court will adjudicate in absentia for the foreign litigants. Therefore, to solve a case in the first instance process only takes a few years, not to mention that after the trial is completed, the Court must carry out the trust of serving the judgment, appeal and protest (if any), this led to prolonged cases.