Nguyên tắc bình đẳng trƣớc pháp luật của đƣơng sự trong tố tụng dân sự việt nam tóm tắt luận án bản tiếng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES

Phan Thanh Tung

THE PRINCIPLE OF THE LITIGANTS’ EQUALITY
BEFORE THE LAW
IN VIETNAMESE CIVIL PROCEDURE
Major: Theory and History of State and Law
Code: 62.38.01.01

SUMMARY OF DOCTORAL THESIS

HA NOI – 2017


The study was completed at: Graduate Academy of Social Sciences

SCIENTIFIC INSTRUCTOR:
ASSOC. PROF. DR. LE THI HUONG

Reviewer 1: Prof. Dr. Pham Hong Thai
Reviewer 2: Prof. Dr. Thai Vinh Thang
Reviewer 3: Assoc. Pham Huu Nghi

Thesis is defended before the PhD thesis Jury Board held at:
Graduate Academy of Social Sciences
dated .... in 2017

Thesis can be found at:
Library of the Academy of Social Sciences

National Library of Vietnam


INTRODUCTION
Rationales of the topic
Equality is one of fundamental human rights of human beings, closely
linked to human activities in society. Mankind has struggled through many
sacrifices to protect the rights of equality. Therefore, ensuring equal rights is one of
the most important tasks of civilized states. In those rights, equality before the
courts, before the law, is the important right recognized by the world: "All are
equal before the law and are entitled without any discrimination to equal
protection of the law" (Article 7 of the Universal Declaration of Human Rights).
"Everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal, in the determination of his rights and obligations and of
any criminal charge against him). (Article 10 of the Universal Declaration of
Human Rights).
The right to equality before the law is reflected in all areas of social lives,
especially in the fields of economics, correction, culture and society, and especially
important in the field of legistration, Justice, proceedings. The criteria of a civilized
country today is that the law must be enforced regardless of the position between
the violators and victims. Citizens' rights and obligations are not discriminated
against by gender, religion, wealth, social class, religion, etc. In the same condition,
citizens must enjoy the same rights and obligations, with the same legal status.
However, the extent to which these rights and obligations are used shall depend on
the individual's abilities, conditions and accomplishments. The state must play an
important role in ensuring that citizens carry out their duties and responsibilities in
an equal manner; citizens need to fulfill their obligations as determined by the
Constitution and the Statutes, that is the best condition to exercise their rights.
Equality before the law is also one of basic legal principle in many
countries. Vietnamese Laws stipulate that all Vietnamese citizens are equal in their

rights and obligations; Citizens regardless of race, gender, sex, socio-religious
status, religion, level of education, occupation, residence time with 18 years old or
more shall have the right to vote and the right to run for office in the People's
Republic of Vietnam according to the law for 21 years old or more. The Vietnamese
Constitution also defines the equality of women and men in all aspects of politics,
economics, culture, society and family.
Building and protecting the equality of litigants is a social value and a goal
of human society. Equality is not a matter of a personal nature, but it is a
relationship between individuals against individuals, organizations against
organizations. Ensuring the right of litigants in the CCP is the guiding principle,
policy of the Party and State in creating the stability, efficiency and development of
the Vietnamese legal system. That has been reflected in the documentations of the
1.

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Party Congress, the resolutions of the Politburo aimed at "Building a clean, strong,
strict, democratic judicial system, protecting justice, step by step modernizing,
serving the people, the socialist Vietnam Fatherland, judicial activities, in which
trial activities are conducted in effective and enforeible manner"(Resolution no. 49NQ/TW of the Political Bureau of the Central Committee Communist Party of
Vietnam on judicial reform toward 2020). Inheriting and promoting the values
related to the previously published CCC legal documents, the CPC has
institutionalized the views of the State and the State on judicial reform, specifying
the scientific proceedings, ensuring the promotion of democracy as an important
legal instrument for individuals and organizations to protect their legitimate rights
and interests before the courts. Article 8 of the Civil Procedure Code, amended in
2011 and Article 8 of the Civil Procedure Code 2015 (effective as of 01 July 2016),
provided for equality of rights and the obligations in the civil procedure as follows:
"1 / In the civil litigation everyone isn’t equal before the law, not discriminated

against the clan, gender, creed, religion, social composition, education level,
culture, occupation, social status. All organizations, organizations and individuals
shall be responsible for carrying out the procedures and obligations before the
Court. 2 / The court shall have the responsibility to ensure the principle of equality
in the performance of the rights and obligations of agencies, organizations and
individuals in civil proceedings. "
The first civil procedure code of Vietnam was issued in 2004. In 2011, the
CPC was amended and supplemented by the Law amending and supplementing the
CPC. In 2015, the new CPC, effective from 01/07/2016, is the current CPC. Under
the 3 CPC, provisions on the principle of equality on the rights and obligations in
civil procedures are provided in Article 8. In the course of implementation, the
principle of equality of rights and obligations in proceedings has revealed many
shortcomings and limitations. This has affected the effectiveness of the court's
handling of civil cases and the protection of legitimate interests of entities at the
courts. One of those existing issues is the provisions on the principle of the
litigants’ equality in the CCP. There are many reasons for these limitations and
shortcomings, including the lack of awareness and application to the principle of
the litigants’ equality in the CCP.
The CPC 2015 will take effect on 01st July 2016 with a total of 517 articles,
divided into 42 chapters. Compared with the revised CPC, in 2011, the CPC revised in
2015 has supplemented with 350 articles; adding 104 new articles. Particularly, Article
8 of the CPC in 2015 stipulates the principle of equality on the rights and obligations in
civil procedures as compared to Article 8 of the CPC in 2011, on the basis, there is no
big change. If there are no breakthrough regulations, solutions that overcome the
inadequacies and limitations of this principle, it is likely to impede the implementation

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of the provisions in CPC 2015 such as " Implementation of interrogation model

combined with litigation "; "Encouraging the settlement of disputes through negotiation
and mediation"; "The court can not refuse a request for civil case handling for reasons
of package in applicable laws" etc.
For those reasons, I have chose the topic "the principle of the litigants’
equality before the law in Vietnamese civil procedure" as a doctoral thesis, with
the hope that the successful research of this topic will contribute to clarifying
theoretical issues on the principle of the litigants’ equality before the law in
Vietnamese civil procedure, as well as assessing the current legal status with regard
to the principle of the litigants’ equality in Vietnamese civil procedure. On that
basis, it will identify requirements and solutions to improve the principle of the
litigants’ equality before the law in Vietnamese civil procedure for the current
period and future time.
2. Purpose and research tasks of thesis
2.1
Purpose of thesis: Based on theoretical study about the principle of
the litigants’ equality in the CCP and the current legal status of this principle in Viet
Nam, it is proposed with solutions to perfect the principle of equality in Vietnamese
civil procedure in the near future.
2.2
Research task of thesis: To achieve the above purpose, research tasks
are identified in the following aspects:
− Systematize theoretical issues related to the principle of the litigants’
equality in the CCP by developing concepts, analyzing the content as well as the
factors affecting this principle.
− Analyzing the formation and development related to the principle of the
litigants’ equality in Vietnamese civil procedure.
− Assessing the current status with regard to the principle of the litigants’
equality in the CCP in current legal documents and actual state of this principle
application.
− Analyzing and disseminating the views and recommendations of

solutions to improve the principle of the litigants’ equality before the law in
Vietnamese civil procedure today.
− Object and scope of the study in thesis
3. Research subject:
3.1. Subject of thesis:
The subject of thesis is the principle of the litigants’ equality before the law
in the CCP in accordance with the Vietnam law
3.2. Research scope:
The principle of equality before the law of the CCP is a broad and complex
topic, covering a wide range of different contents. Thesis focuses on studying the

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current law of Vietnam, focusing on studying the regulations on CPC in 2004;
LSBBSBLCCP in 2011 and CPC in 2015 on the principle of the litigants’ equality
before the law in the CCP on the basis of approaching to the formation and
development of this principle before 1945 until now.
4. Methodology and research methods
4.1. Methodology method:
In order to clarify the objects and scope of the study, thesis uses the
methodology of Marxism-Leninism to explain the problems of equality, roles and
factors guaranteeing the principle of the litigants’ equality before the law in the
CCP. At the same time, thesis is based on the views, principles of the Party and the
State's policies on the principle of equality before the law of the CCP; Identifying
requirements and develop recommendations to improve the application of this
principle in Viet Nam
4.2.
Research Method:
In order to solve the specific problems set out by the research subject, thesis

uses a harmonious combination of various scientific research methods such as the
methods for analysis and synthesis of legal information and situations to clarify
theoretical issues and the legal status with regard to the principle of the litigants’
equality before the law in Vietnamese civil procedure. In addition, statistical
methods and practical examples aim to demonstrate and illuminate the scientific
conclusions, assessments and conclusions of thesis, especially the method of
comparative jurisprudence used throughout in thesis to analyze, collate and
compare the law’s provisions on the principle of equality before the law in the CCP
with other principle and regulations of some countries in the world, thereby finding
the similarities and especially points which are incompatible, inadequate from the
application of the principle of the litigants’ equality before the law in the CCP in
social and legal lives in Vietnam. Specifically:
- Systematic method used in Chapter 1 is to classify and study the content of
scientific works public works published and related to thesis topic in Vietnam and
foreign country.
- Logical method is a research method used throughout the implementation
of Chapter 2, Chapter 3 and Chapter 4. Accordingly, in Chapter 2, before studying
the rationale in the principle of the litigants’ equality before the law in the CCP,
thesis has outlined the litigant and its equality. At the same time, the content of
three Chapters has a cross-cutting relationship. Theoretical explanations in Chapter
2 are the basis for assessing the current state with respect to the principle of the
litigants’ equality before the law in the CCP in Chapter 3, and thereby, solutions to
improve the principle of equality before the law shall be improved in Vietnamese
civil procedure in chapter 4.

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- Historical method is used to evaluate the current state with respect to the
principle of the litigants’ equality in the CCP.

- Analytical-synthesis method is used throughout Chapter 2, Chapters 3 and
4 of this thesis. Analyzing the concept related to the principle of the litigants’
equality in the CCP , analyzing the characteristics, contents, role and factors which
ensure the principle of the litigants’ equality in the CCP; Analyzing legal provisions
on the principle of the litigants’ equality in the CCP as well as the practical
application of this principle in reality. Analyzing the requirements and solutions to
improve the principle of the litigants’ equality in Vietnamese civil procedure
- For the study on the principle of the litigants’ equality in the CCP in some
countries around the world, the author focuses on the use of comparative and
analytical methods to draw out experiences for the improvement of this principle in
Vietnam.
- In Chapter 3, apart from the use of analytical method, the author also uses
statistical method, the data synthesis method to support the explanations given in
the assessment of the current state with respect to the principle of the litigants’
equality in Vietnamese civil procedure.
5. New points of thesis
Firstly, thesis is an independent scientific work which has evaluated the
research situation of domestic and international authors related to thesis topic. On
that basis, the purpose and scope of research shall be set out to rationalize the
problems with respect to the principle of the litigants’ equality before the law in the
CCP, in which that works have not been studied or further researched.
Secondly, thesis further clarifies the pointviews on: the litigant, the litigant’s
equality; the concept and content of the principle of the litigants’ equality before
the law in the CCP according to Vietnamese law from the formation history to the
current regulations.
Thirdly, the analysis clarifies the nature of the principle of the litigants’
equality before the law in the CCP which is placed in relation to other principle
prescribed by the CCP. Each of these principle specifies and demonstrate the
different perspectives, areas and scales that form a system of principle to ensure the
implementation of human rights, interests and responsibilities of entities in the

effective execution of legal institutions in social and legal lives.
Fourthly, thesis has analyzed and evaluated the factors which ensure the
principle of the litigants’ equality before the law in the CCP. In which the socioeconomic conditions, the provisions of the law on the CCP with regard to the
orders and procedures for resolving civil cases, activities of settling civil cases in
courts, supporting activities to participate in proceedings of organizations and
individuals, mechanism for supervision and control of civil activities are decisive

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factors to ensure the principle of the litigants’ equality before the law in the CCP.
Therefore, one of current requirements is the necessity to deal with the issues above
in a synchronous and systematic manner to ensure the principle of the litigants’
equality in actual social lives.
Fifthly, thesis analyzes and evaluates the regulations of some countries on
the principle of the litigants’ equality in the CCP (the United States, France and
China) that have different legal systems. Thereby, it is possible to draw out some
experiences to the process of developing and enforcing this legal principle in
Vietnam.
Sixthly, thesis has analyzed and evaluated in a comprehensive and objective
manner on the current state applying the principle of the litigants’ equality in the
CCP. On that basis, the advantages and limitations of the Vietnamese law with
regard to the principle of the litigants’ equality in the CCP shall be outlined;
Determining the reason of limitations and inadequacies of this principle in practice.
Seventhly, thesis has identified specific solutions and requirements that
contribute to improving the principle of the litigants’ equality in Vietnamese civil
procedure. Such solutions provided shall ensure the scientific and valuable
reference for agencies conducting legal proceedings, litigants and other subjects, in
accordance with other civil procedural principle, in order to ensure the litigants’
fairness before the Court and suitability with the international integration process.

6. Scientific and practical meaning of thesis
From the approach, study and evaluation with regard to the principle of the
litigants’ equality in Vietnamese civil procedure and other countries of the world, it
can be said that thesis is an independent scientific work that also has a systematic
and comprehensive study with regard to the principle of the litigants’ equality in the
CCP.
The analysis, conclusions and recommendations outlined thesis includes a
scientific theoretical basis that ensures the reliability. Therefore, the research results
of this thesis have theoretical and practical significance in developing and
improving the laws with regard to the principle of the litigants’ equality in the CCP.
Thesis is a valuable resource for teaching, learning and scientific research in the
legal sciences as well as law enforcement related to the principle of the litigants’
equality in Vietnamese civil procedure.
7. Layout of thesis
In addition to the introduction, conclusion and a list of references, thesis is
consist of four chapters as follows:
Chapter 1: An overview of current research related to the topic
Chapter 2: Theoretical issues on the principle of the litigants’ equality in
Vietnamese civil procedure

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Chapter 3: Current state with regard to the principle of the litigants’ equality
in Vietnamese civil procedure
Chapter 4: Perspectives and solutions for improving the principle of the
litigants’ equality in Vietnamese civil procedure.
Chapter 1
AN OVERVIEW OF CURRENT RESEARCH RELATED
TO THE TOPIC

1.1
Studied works in the world and Vietnam related to the topic
1.1.1. Studied works in the world
Equality is the goal that all human beings throughout the world have the
right to pursuit. Thus, in the history of human society, there are many pointviews of
scholars on the equality from the east to the west, from modern to contemporary.
Jurisprudence works around the world on this issue with different approaches,
different research purposes and opinions, thereby, different research results shall
depend on the research purpose, problem-approaching method. Research works of
scholars in the world are mainly sorted by the following groups:
+ Modern research group expressing pointviews on equality and social justice.
+ Group studying on civil procedure system in England.
+ Group studying on principle in the CCP that refer to the principle of the
litigants’ equality.
+ Group studying on Civil Procedure - a process for resolving civil cases
including court proceedings, mediation and arbitration.
+ Group studying on the benefits and equality in all laws and proceedings.
+ Group studying on the case law
Apart from the works mentioned above, there are many other studies,
approaching the aspects on the application of equality principle in the CCP, or cases
law with regard to the assurance of those principle that can be enforced in practice
at some countries etc. These studies have a high applicability in the practice of the
laws or the lessons learned to apply the principle of the litigants’ equality in the
CCP. In particular, theoretical issues on the role and impact of the principle of
equality in the CCP for developed and developing countries have received much
attention from the authors. However, the research’s continuation provides a
scientific assessment with regard to some limitations, inadequacies and practical
experiences in applying the principle of the litigants’ equality in the CCP at
Intensive level are always an urgent need in the process of developing and
improving the legal system of Vietnamese civil procedure.

1.1.2. Research situation in Vietnam
The trend of equality toward a stable and sustainable civil society has
always been one of the great directions of the Party and State. This is reflected in

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the documents of the Communist Party of Vietnam, in the development directions
and policies of the Party and the State as well as research works of scholars. It can
be seen that the research situation no matter what aspects given, in relation to the
regulations and implementation for the principle of the litigants’ equality in the
CCP, shall be considered in a multidimensional approach. This shows that this is
one of the most important principle in civil law and legal lives in general. These
scientific works can be sorted with the following basic groups:
+ Group studying on Human Rights.
+ Group approaching the equal rights in society is associated with the
fairness, responsibility and solidarity.
+ Group studying on the rights and obligations of the litigants in the CCP.
+ Group studying on the civil procedure principle, which specifies those
principle set out in Article 8 of the Civil procedure code (principle on the equal
rights and obligations of the litigants).
+ Group studying on the rights of the litigants in the CCP.
+ Group studying on the principle of fairness in relevant laws.
1.2
Overview of the study
1.2.1
Results gained and inherited in thesis
From the evaluation of domestic and foreign studies on the principle of the
litigants’ equality before the law in the CCP related to the topic, the author has
found that the research of scholars has reached the following basic results:

Firstly, there are many approaches with different aspects including
philosophical, economic, legal, sociological aspects etc. with regard to the equality
and the principle of equality before the law applicable to the litigants. But in
general, whether studied at different levels, due to the viewpoints, general or
specific points, the authors assert that the equal right is one of fundamental rights of
human beings. Equal right is of nature, satisfying the social needs of every person
in lives.
Secondly, the authors say that human rights are a legal and a long history of
development. Human rights are inherently inseparable to human beings born on
this earth, regardless of who they are, where they are born, regardless of gender,
religion or status. Human rights are equal. All individuals in society are recognized
for their human values and deserve to be respected.
Thirdly, from the different approaches and studies of scholars, it is said that
when engaging in civil law relations, although the entities may not be the same in
terms of participation status, purpose of civil relations but in terms of legal status,
they always have equality. The equality of the entities involved in civil litigation is
also one of the contents demonstrating the equality of legal status. And it shall not
only stop at the equality in the laws and regulations on the content, but in formal

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law (procedural law), the principle of equality must always be promoted and a
characteristic to distinguish from the criminal or administrative proceedings. This is
one of the most important principle in the CCP, contributing to the assurance of
human rights toward a stable and developed society.
Fourthly, although studied in different aspects, the authors generally agree that
the equality of litigants is an important factor in the successful establishment of the
law-governed State in Vietnam. This socialist law-governed State requires judicial
activities to be equal, fair, democratic and effective, everyone must obey the law

thoroughly. In order to meet those requirements, it is necessary to firstly implement
the basic legal principle of the State, and one of those principle is that all citizens are
equal before the law. The litigants' equality in the CCP is one of the basis, objectives
to realize the requirements on the principle "all citizens are equal before the law".
1.2.2
Issues need to be further studied
On the basis of acquiring, inheriting the opinions, ideas and some theoretical
issues from domestic and foreign scientific works, the author will continue to focus
up on issues related to the equality and principle of equality of the litigants before
the law in the CCP which have not been approached or been approached by the
scholars without an in-depth level, including:
+ Firstly, the author continues to focus on theoretical issues in a systematic
manner upon the litigant, equality, concept and content with regard to principle of
equality of the litigants before the law in the CCP and the current state of applying
those principle in Vietnam. On the basis of that, comments and assessments shall be
drawn out regarding the difficulties and complexities as well as inadequacies,
limitations when applying the principle of the litigants’ equality before the law in
economic, political and culture conditions, as well as legal tradition of Vietnam.
This is the foundation, basis of the views and solutions to improve institutions and
legistration on the principle of the litigants’ equality before the law in Vietnamese
civil procedure in the current period.
+ Secondly, an approach has been also focused to study the principle of the
litigants’ equality before the law in the CCP of some typical countries, from which
it shall summarize and evaluate to draw experiences in the process of developing
and improving the legistration system with regard to the equality of the litigants in
Vietnamese civil procedure.
+ Thirdly, the study of litigants’ equality is based on the relationship with
other featured principle of civil procedure in order to approach and confirm the role
related to the principle of the litigants’ equality before the law. This is a
requirement of objectivity in the orientation of building and developing the lawgoverned Vietnamese State in the context of international integration.

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+ Forthly, equality of the litigants before the law in the CCP is a principle
that not only is recognized in a form of civil law which must be guaranteed with
effective implementation of social lives in general legal lives in particular.
Therefore, one of the contents that author needs to focus on further clarifying shall
be the factors that influence and impact the implementation of this principle in
practice.
+ Fifthly, at present, there is not any research that is in depth, systematic
with regard to the principle of the litigants’ equality before the law in Vietnamese
civil procedure. Therefore, a comprehensive and independent study is needed on
the above issues. Therefore, the development of research results on the principle of
the litigants’ equality before the law in theoretical perspective; Evaluating the
reality and practice applied with this principle; Proposing necessary solutions to
improve the legal principle of equality of the litigants in the CCP and this shall be a
scientific study that is different from any previous study .
Chapter 2
THEORETICAL ISSUES OF THE PRINCIPLE OF EQUALITY BEFORE
THE LAW OF THE LITIGANTS IN CIVIL PROCEDURES OF VIETNAM
2.1. The concept, role and significance of the principle of equality
before the law of the litigants in civil procedure
2.1.1. The concept of the principle of equality before the law of the
litigants in civil procedure
2.1.1.1.
The concept of the litigants in civil procedure
From a linguistic perspective, according to the Vietnamese Dictionary, the
litigant is “the person who is the direct object of a case being solved” [82, p. 572].
Also in the Sino-Vietnamese Dictionary, the litigant is defined as the person

“directly related to a case” [24, p. 232]. As such, from the best general perspective,
the litigant is the person directly involved in any case that is being considered and
resolved.
From the legal point of view, according to the Legal Dictionary of 2006, the
litigant is understood as “The individual or legal entity who is involved in civil
procedure (CP) as a plaintiff or a defendant or a person with related rights and
obligations. The litigant is one of the groups of people involved in civil procedure
in the People’s Courts in civil, business, commercial, marriage and family and
labor lawsuits. Those involved in that civil procedure include the litigants, the
representatives of the litigants, the defense counsels of the litigants, the State
agencies, the social organizations that initiate lawsuits for the common interests,
the Procuracies, witnesses, interpreters” [59, p. 278 - 279]. Thus, the litigants in a
case are the persons with rights and obligations related to the case that is being
considered and resolved. Accessing to the views of jurists, it can be seen that,

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despite the different aspects of the study, there is still a common view that the
litigants are the persons involved in the process of resolving the civil cases due to
having the rights and obligations resolved in civil cases, including plaintiffs and
defendants. However, the jurists have not yet provided a comprehensive concept of
litigants in CP. In order to develop a concept of litigant in CP, it is necessary to first
clarify the point of view on civil procedure. CP is understood to be a lawsuit in
court about civil relations and require the court to resolve under its jurisdiction.
However, legally, the concept of CP also has different interpretations, depending on
the litigation model and law of each country in the basic legal system of the world.
From the results of the study, it can be recognized that: the litigants in civil
procedure are individuals, legal entities or other subjects who have the rights or
interests of the disputes or who need to be identified to participate in the civil case

resolution process to protect their legal rights and interests.
2.1.1.2.
The concept of equality before the law of the litigants in civil
procedure
Equality before the law of the litigants in civil procedure is the equality,
without discrimination in legal procedure between individuals, agencies and
organizations on legal status, rights and obligations for civil procedure and legal
liability. The court shall resolve the civil case independently, objectively and in
accordance with law and shall have the responsibility to create conditions for the
litigants to be equal in carrying out the civil procedure rights and obligations.
2.1.1.3.
The concept of the principle of equality before the law of the
litigants in civil procedure
The view “all citizens are equal before the law” dates back to ancient Greece,
but it was not until the bourgeois revolution that it emerged as an important
principle of legislation. The United States Declaration of Independence of 1776 and
the Declaration of the Rights of Man and of the Citizen of France in 1791 refer to
this principle [86]. Nowadays, the principle that all citizens are equal before the law
is recognized in the Constitution of nations in the world, including Vietnam.
The principle of equality before the law of the litigants in civil procedure is
the legal ideas which are decisive, compulsory, express oriented views of the State
in judging civil cases, provided for in civil procedure law, in which before the
Court all citizens, agencies and organizations have equal legal status, are not
discriminated against in the enjoyment of their rights, performance of obligations
and legal responsibility, the litigants are all equal in terms of civil procedure rights
and obligations. The Court shall resolve the civil case independently, objectively
and in accordance with law and shall have the responsibility to create conditions
for the litigants to be equal in the exercise of their civil rights and obligations.

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2.1.2. The role of the principle of equality before the law of the litigants in
civil procedure
The principle of equality before the law of the litigants in CP plays a
particularly important role in protecting the legitimate rights and interests of the
litigants as well as enhancing the responsibility of ensuring equality from the
agencies conducting proceedings. The role of the principle of equality before the
law of the litigants in CP is reflected in the following basic aspects:
Firstly, the recognition and assurance of exercising the principle of equality
before the law of the litigants in CP is first and foremost a legal basis to ensure that
the subjects participating in the proceedings have equal opportunities and
conditions in participating in the proceedings.
Secondly, the recognition and assurance of exercising the principle of
equality before the law of the litigants in CP is a basis for the Court to be able to
resolve fairly, promptly, efficiently and properly with civil cases. On that basis, it
can limit and prevent acts of violation committed by cadres and civil servants
during the proceedings in order to ensure fairness for the subjects.
Thirdly, the principle of equality before the law of the litigants in CP
contributes to prevent and deal promptly with the wrongdoing of the subjects
participating in the proceedings when exercising their rights and obligations.
In addition, the regulation and implementation of the principle of equality
before the law of the litigants in CP together with other principles of the law of CP
also have a great significance in improving the effectiveness of solving the civil
cases, civil affairs, protecting the legitimate rights and interests of citizens and
contributing to the judicial reform and building the Socialist rule-of-law state.
2.1.3. The significance of the principle of equality before the law of the
litigants in civil procedure
The principle of equality of the litigants in CP plays a very important role in
the trial stage of civil cases. This is a mechanism to ensure the legitimate rights and

interests of the litigants as well as other participants in the proceedings, which
helps the trial to be objective, comprehensive and complete. The significance of the
principle of equality of the litigants in CP is reflected in the following contents:
Firstly, ensure the case is resolved objectively, comprehensively and fully.
Secondly, determine the location of the Court is a fair judge between the
parties concerned.
Thirdly, the right of participants in the proceedings is guaranteed
2.2. Contents of the principle of equality before the law of the litigants in
civil procedure

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2.2.1. The equality of subject status before the law, before the Court when
being involved in the course of civil procedure of all individuals, agencies and
organizations.
2.2.2. The litigants are equal in their rights and obligations in civil procedure
2.2.3. The litigants are equal in terms of liability
2.2.4. The Court is responsible for ensuring equality between the litigants
2.3. Factors ensuring the principle of equality before the law of the
litigant in civil procedure
2.3.1. Social and economic conditions
2.3.2. The provisions of law on the order and procedures for resolving civil
cases
2.3.3. Civil case resolution activities of the Court
2.3.4. Activities supporting the litigants to participate in legal procedure of
individuals, agencies and organizations
2.3.5. Mechanism of supervision and control of civil procedure activities
Chapter 3
ACTUAL STATUS OF APPLICATION OF THE PRINCIPLE OF

EQUALITY BEFORE THE LAW OF THE LITIGANTS IN CIVIL
PROCEDURE OF VIETNAM
The formation and development of civil procedure law in general and the
principle of equality before the law of the litigants in civil procedure in particular
are always associated with the development of the State through historical periods.
Based on the development of the State of Vietnam, the formation and development
of the principle of equality before the law of the litigants in civil procedure of
Vietnam can be divided into the following stages:
3.1. Principles of equality before the law of the litigants in civil
procedure law of Vietnam before the Civil Procedure Code
3.1.1. The period from 1945 to 1989
The content of the principle of equality before the law of the litigants in civil
procedure in this period has not been concretized yet in the highly effective legal
documents but many civil legal documents on civil procedure issued focus on
regulating the equal right of the litigants in civil procedure as well as the
responsibility of the Court in respect of ensuring the equal right of the litigants.
These are important legal bases to protect the legitimate rights and interests of
litigants in Vietnamese civil procedure at this period.
3.1.2. The period from 1989 to 2004
Compared to previous periods, the principle of equality before the law of the
litigants in civil procedure of 1989 to 2004 (before Civil Procedure Code) has been
regulated quite adequately in the legal documents of quite high effect such as the

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Ordinance on Procedures for Settlement of Civil Cases (OPSCC) (1989), the Law
on Organization of People’s Courts (LOPC), etc. However, the provisions of civil
procedure law on the equal right of the litigants in civil procedure of this period are
still scattered, unclear as well as unclear, so the actual implementation is limited.

3.2. Principle of equality before the law of the litigants in civil
procedure law from the time of Civil Procedure Code till now
3.2.1. Principle of equality before the law of the litigants in civil procedure
in accordance with the provisions of Civil Procedure Code 2004.
Civil Procedure Code (CPC) has marked a development step in civil
procedure law system of Vietnam. According to the regulations of CPC, the civil
procedure process has been fundamentally changed in a democratic, open, and
transparent manner in order to ensure for exercise of human rights in civil
procedure. Accordingly, the litigants are equal before the law, before the Court,
proactive and decisive in protecting their legal rights and interests before the court.
The Court is responsible for ensuring that the litigants exercise their right to
equality before the law.
3.2.2. Principle of equality before the law of the litigants in civil procedure
in accordance with Civil Procedure Code 2011.
In order to further meet the requirements of the judicial reform, to build the
Socialist rule-of-law state, to guarantee the human rights, freedom and democracy
of citizens as well as meet the urgent requirements of the practice of resolving civil
cases in the current period on March 29, 2011, the XII National Assembly of the
Socialist Republic of Vietnam of the 9 th Session adopted the Law amending and
supplementing some Articles of Civil Procedure Code (LASCPC) [22]. LASCPC
developed and issued contributes to complete and deepen the protection mechanism
of human rights and equal right before the law, in front of the court of the litigants
in the CP such as: change of the provisions on the prescription for initiating civil
cases to ensure the lawful rights and interests of the litigants; jurisdiction of the
Court in civil cases; the new rights of the litigants in civil cases,....
With the view and direction that the CPC must be “a legal instrument for
individuals and organizations to safeguard their rights and legitimate interests”
[37, page 3], therefore, the human rights and equal right among the litigants in civil
procedure have been concerned in the development of this Code. Inheriting the
provisions of previous legal documents, Article 8 of the CPC continues to affirm

equality before the law and before the court of the litigants in civil procedure is the
basic principle of civil procedure. However, the content of this principle is more
fully defined in comparison with the OPSCC. Accordingly, the principle of equality
before the law of the litigants in civil procedure has been regulated quite
specifically in the CPC and OPSCC. These regulations are the legal basis for

14


individuals, agencies and organizations participating in the proceedings to protect
their legitimate rights and interests before the Court. On the other hand, they are
also the necessary conditions for the Court to promptly and appropriately handle
civil cases
3.3. The actual status of application of the principle of equality before
the law of the litigants in civil procedure at the People’s Court
3.3.1. Achievements
The People’s Court is the judicial organ of the Socialist Republic of
Vietnam, exercising the judicial right. The People’s Court include the Supreme
People’s Court and other Courts as determined by law. The practice of judging and
handling civil cases of the Court in recent years has shown that the principle of
equality before the law of the litigants in civil procedure is increasingly better in
performance. During the process of resolving civil cases, the Courts have respected
and ensured all individuals, agencies and organizations to exercise their civil
procedure rights and obligations in an equal way. The People’s Court has the task
of protecting justice, protecting human rights, citizenship, protecting the socialist
regime, protecting the interests of the State, legitimate rights and interests of
organizations and individuals (Article 102 of the Constitution 2013). In the practice
of conducting civil procedure, the outcome of resolving cases the Court is as
follows:
- In 2010, the two trial levels of the Hanoi People’s Court accepted 524

cases and handled 390 cases, left 134 cases; reached 74.4 %%. The rate of cases
resolved in the district courts was 73.6%; First instance in the city court reached
89%; Hearing appeals in the city court reached 96.2%. The city court accepted 235
cases, handled 173 cases, reached 73.6%. Of which it judged 199 cases, suspended
temporarily 22 cases. Quality of trial: Confirmation of penalty for 52 cases;
correction of the verdict due to subjective errors for 9 cases; Correction of the
verdict due to due to subjective errors for 16 cases; Cancellation of the verdict due
to subjective errors for 5 cases, cancellation of the verdict due to objective errors
for 7 cases; excess of the time limit with 7 cases [45].
In 2011, the entire branch accepted 21,104 cases of all kinds, handled 20,480
cases, reached 97% (Compared with 2010, the number of cases increased 2264 cases,
the number of cases resolved increased 2433 cases) [46].
In 2012, the entire Hanoi People's Court branch handled 23,521 cases of all
kinds, 21,749 cases, accounting for 92.5%. The remaining cases are 1,772 cases
(compared with 2011 the number of cases increased by 2,417 cases, increased
11.45%) [47].
In 2013, the economic, political and social situation in the country and the
Capital were complicated, the trade business disputes soared. In the event that the

15


number of Judges in the entire branch is still insufficient, some Judges who had
expired were not re-appointed; condition of facilities and working equipment of
Hanoi City Court and District Courts. The whole branch accepted 25,996 cases (an
increase of 2,474 cases = 10.5% as compared to 2012), resolved 25,139 cases (an
increase of 2,377 cases = 10.4% compared to 2012), accounted for 96.7% [48].
In the first six months of 2014, the two levels of the Hanoi City People’s
Court accepted 14,889 cases (an increase of 914 cases = 6.54% compared to the
first 6 months of 2013), handled 11,258 cases (an increase of 847 cases = 8.1%

compared to the first six months of 2013), reached a handling rate of 75.6% [49],
From the judicial practice of the Hanoi City People’s Court, it shows that the
number of matters and cases that the court accepted and handled have all increased.
This shows that: (i) the need to resolve matters, cases in court is much more and
more, in addition to the disputes that have occurred, some new types of dispute
arise; (ii) in the context of the integration economy, the frequency of work of the
court bodies, including the resolution of civil disputes grows more and more; (iii)
the outcome of the acceptance and resolution of disputes of cases in CP doesn’t
only satisfy in terms of the number of cases resolved, but also needs to enhance the
quality and effectiveness of the trials and (iv) in order to gain the goal of building a
socialist rule-of-law state, it’s necessary to raise the sense of responsibility and
professional expertise of the judges; respect, ensure equality and not to create
discrimination between parties in the resolution process.
From those results it can be seen the value of institutionalizing the law of
human rights and the process of implementing it in social life. The recognition and
concretization of the principle of equality before the law of the litigants in the CPC,
LASCPC and the guiding documents have created favorable conditions for the
subjects of proceedings to have the best opportunity to exercise their rights and
obligations of proceedings. The right of equality between the litigants is not only
the equality of individuals, but also the equality between the individual and the
agency in civil procedure. Along with that, these legal documents also regulate the
equal right of subjects of proceedings in all stages of the civil procedure process.
This reflects a respect for the subjects of proceedings, especially the litigants,
hence, the litigants can protect their legitimate rights and interests as well as the
Court can handle the civil cases more favorably and quickly, saving time, effort and
money of the State and of the litigants.
3.3.2. Restrictions
In addition to the above-mentioned results, the exercise of the principle of
equality before the law of the litigants in civil procedure still remains some certain
shortcomings. Those restrictions are mainly expressed in the civil proceedings of

the litigants and the Court.

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On the part of the litigants, despite understanding the principle of equality
before the law of the litigants in civil procedure, but in some cases, the litigants
exercised this principle improperly, gave the request inappropriately and the Court
didn’t accept the request. For example, in 2012, the Court of Appeals resolved
13,484 cases/ 14,704 cases of acceptance, in which the number of cases of the
Court of Appeals upheld the original judgment, decision of the first instance,
without acceptance of the appeal or protest was 5276 cases, accounting for 39.12%
of the total number of cases resolved by the Court of Appeals. Regarding cassation
and retrial complaints, in 2012, the Supreme People’s Court and the provincial
People’s Court handled 6078 applications / 10,541 complaints of request for a
cassation or retrial. Of which, the answer for applications to the litigants is that
there are no grounds for protest under the cassation procedure of 5,330 cases,
accounting for 87.7% [40, p. 9].
On the part of the Court, there are many cases that the Court did not
properly handle, not guarantee the right to equality before the law of the litigants.
Specifically:
Firstly, the situation of the judgments and decisions canceled and corrected
by the Higher courts has been still high thus affecting the protection of the
legitimate rights and interests of the litigants.
Secondly, the Court determined the status of litigants incorrectly, didn’t
convene adequately the litigants to participate in the proceedings and thus didn’t
guarantee the right to participate in proceedings of the litigants.
Thirdly, the Court adjudicated in the absence of the litigant at the trial, didn’t
guarantee the right to attend the trial of the litigant when it was not determined
exactly whether the defendant deliberately had concealed the address or not

Fourthly, the Court did not adequately address the request for lawsuit of the
litigants.
Fifthly, the Court resolved the case without having fully collected the
documents and evidences leading to the legitimate rights and interests of the
litigants which are not protected.
Sixthly, the actual application of the order and procedure at the trial of first
instance, appellate court, cassation and retrial hasn’t demonstrated yet as a process
of proceedings ensuring in maximum the compliance with the principle of equality
of the litigants in CP and other rules in CP.
Seventhly, the proof, collection and evaluation of evidence in the dispute
case settlement process.
Eighthly, the issue of litigation at the trial to ensure the equal right of the
litigants.

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Ninthly, Verification in civil procedure and supervision of the people,
supervision of the National Assembly hasn’t been reflected in the civil procedure,
although these are three mechanisms that ensure human rights in a clear way.
3.4. Comments on the principle of equality before the law of the litigants
in civil procedure in Vietnam
3.4.1. The principle of equality before the law of the litigants in the civil
procedure is built on the basis of profound reasoning
The recognition and assurance of the principle of equality before the law of
the litigants is based on the following basic theoretical basis:
Firstly, equal right is one of the important rights of human rights.
Secondly, equality before the law of the litigants in CP is an important
content of building the Socialist rule-of-law state
Thirdly, the theoretical basis for the principle of equality before the law of

the litigants also show in relation to other principles in CP.
3.4.2. The principle of equality before the law of the litigants in civil
procedure is based on the reality of civil proceedings.
Firstly, the development and exercise of the principle of equality before the
law in CP meet the needs and aspirations of people in society.
Secondly, the provision of the principle of equality before the law of the
litigants in CP derives from the requirements of the Court’s practice of trial.
Thirdly, the provision of the principle of equality before the law of the
litigants comes from the practical conditions applied in social life.
3.4.3. The principle of equality before the law of the litigants in civil
procedure ensures the compatibility with international law and national law.
Human rights, including the right to equality before the law, have the
character of institutionalizing the law (rights and obligations, mechanisms for
ensuring and protecting it ...). This institutionalization is aimed to ensure the
realization of human rights and is expressed at the international and national levels.
3.4.3.1. At the international level
The equal right before the law is enshrined in the Universal Declaration of
Human Rights 1948. However, this is just a statement that states can absorb but
without binding value. [85] Article 6 of the Universal Declaration of Human Rights
1948 states: “Everyone has the right to be recognized as a human before the law
everywhere.” Article 7 of the Declaration affirms: “Everyone is equal before the
law and equitably protected by law without any discrimination.”
The right to equality before the law grew a step further when it was included
in the 1966 Civil and Political Rights Convention (ICCPR) as an international legal
normative document legally binding on the nations. Participation is more
concretized than the Universal Declaration of Human Rights of 1948. It is,

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moreover, the principle of international human rights law embodied in various
international conventions on human rights. Not only being assertive, detailed, the
1966 Civil and Political Rights Convention also created a mechanism for the
protection of human rights. Articles 26 and 27 of this Convention provide:
Everyone is equal before the law, and is protected equally by the law without
discrimination. In this regard, the law prohibits any discrimination and guarantees
all the people with the right to equal and effective protection against any
discrimination on race, skin color, gender, language, religion, political opinion or
conception, national or social origin, property, birth or any other status
3.4.3.2. At the national level
The right to equality before the law in Vietnam has been reflected in the
Constitution of 1946 - a Constitution praised in many respects including the
protection of human rights and the right to equality before the law. For example,
Articles 6 and 7 of the 1946 Constitution regulates: “All Vietnamese citizens have
equal right in all aspects: politics, economics, culture.” “All Vietnamese citizens are
equal before the law, are all entitled to participate in the government and the task of
founding a state according to their talents and virtues”.
Inheriting the progressive constitutional thoughts in which there are
progressive civilized thoughts of human rights dating back to the early years of the
century and especially the 1946 Constitution, the 1992 Constitution reaffirms the
right to equality before the law at Article 51 by affirming: Citizens have the right to
be equal before the law.
The equal right before the law of the litigants in CP continues to be
recognized in the Constitution of the Socialist Republic of Vietnam 2013. The
Constitution of 2013 affirms that human right is a natural right, the State must
recognize, respect and commit to guarantee, protect human rights in line with the
international conventions to which Vietnam is a member. Article 16 states clearly:
“Everyone is equal before the law. No one shall be discriminated against in
political, civil, economic, cultural or social life.”
Chapter 4

VIEWPOINTS AND SOLUTIONS TO PERFECT THE PRINCIPLE OF
EQUALITY BEFORE THE LAW OF THE LITIGANTS IN CIVIL
PROCEDURE IN VIETNAM
4.1 The viewpoints to perfect the principle of equality before the law of
the litigants in civil procedure in Vietnam
Based on the analysis and interpretation of the theoretical issues and the
actual status of application of the principle of equality before the law of the
litigants, it shows that the full perception of perfecting this principle in Vietnam in
the current period is an urgent requirement. The perfection of the principle of

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equality of the litigants, regardless of having any specific solution, still needs to
meet the following basic requirements:
4.1.1. Perfection of the principle of equality of the litigants in civil
procedure must be based on the assurance of human rights and citizenship.
4.1.2. Perfection of the principle of equality of the litigants in civil
procedure must be derived from the requirement of building a rule-of-law state and
democratization of the state life and social life in our country today.
4.1.3. Perfection of the principle of equality of the litigants in civil
procedure must show the policy of the Party and the State on judicial reform.
4.1.4. Perfection of the principle of equality of the litigants in civil
procedure must clearly demonstrate the viewpoints of the Party and the State on
economic development reform.
4.1.5. Perfection of the principle of equality of the litigants in civil
procedure must be in line with the process of international and regional integration
4.2 Solutions to perfect the principle of equality before the law of the
litigants in civil procedure in Vietnam
4.2.1. General solution group

Firstly, raise an awareness of litigants’ equal right and the role of the
principle of equality of the litigants in civil procedure
The regulation of the principle of equality in the law is difficult; the
practical implementation is even much more difficult. Therefore, in terms of
perception, it is necessary to address the following issues: (i) First of all it is
necessary to be aware fully and accurately of the principle the principle of equality
of the litigants in CP based on a coherent philosophy of human rights in a
systematic and scientific way with the proven arguments in every country and in
practice held in Vietnam; (ii) it is necessary to build a high political determination
in recognizing, respecting and ensuring the principle of equality the litigants in CP
from leaders, political managers and state leaders, first of all from the People’s
Court (PC) agencies, from that determine to build and perfect institutions in order
to perfect the principle of equality of the litigants in CP; (iii) it is necessary to
continue to have in-depth research, build an awareness properly and fully of human
rights in general and the right to equality before the law of the citizen, including
equal right of the litigants in CP.
Secondly, research fully the factors affecting the development and perfection
of the principle of equality of the litigants in civil procedure.
The principle of equality of the litigants in CP is influenced mainly by the
factors: political institutions, socio-economic conditions, factors on history, nation,
culture, morality, religion, habits and customs, intellectual standards ... This is

20


important in the research, evaluation and proposal to perfect the principle of
equality of the litigants in CP.
Thirdly, grasp accurately, thoroughly, promptly the content and spirit of the
Constitution of 2013 in the perfection of the principle of equality of the litigants in
civil procedure.

4.2.2. The legislative solution group
Firstly, need to supplement provisions on litigants in the civil matters.
Secondly, need to provide for a settlement way when the result of the
valuation of the disputed property contradicts the result of the organization on
valuation.
Thirdly, need to provide sanctions to individuals, agencies or organizations
that are holding or managing evidence but intentionally don’t provide the evidence
to the litigants.
Fourthly, need to define the responsibility of the Court in providing
documents to the litigants.
Fifthly, define clearly the Court’s responsibility for the application, change
and cancellation of interim emergency measures.
Sixthly, need to stipulate that the withdrawal of a litigant’s request at the
appellate stage accepted upon the agreement of other litigants.
Seventhly, the Judges’ Council of the Supreme People’s Court should quickly
select situations and solutions to handle the legal proceedings related to the
assurance of equality before the law of the litigants that the Court have resolved
properly to decide into a case law to guide an uniform application throughout the
Court system.
Eighthly, need to consult the foreign legislative experience to perfect the
principle of equality of the litigants in CP.
4.2.3. Solution group of law enforcement
First of all, need to step up the dissemination and popularization of civil
procedural law education.
Secondly, continue to innovate the system of People's Courts in the new
phase, meeting the requirements of judicial reform.
Thirdly, respect for the principle of independence of the Court in the course
of resolving the case.
Fourthly, build a team of judges who are good at the professional skills and
have professional ethics

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CONCLUSION
By providing a theoretical basis, methodology, research methodology and
determining the purpose and scope of the research, the author has clarified the
theoretical and practical issues of the principle of equality before the law of the
litigants in CP. The topic research results are the basis for the author to draw some
conclusions as follows:
Firstly, equality is one of the divine rights of man. It is therefore recognized
and guaranteed to exercise in social and legal life. Human rights are a political legal
concept and have a long history of development. Human rights are inherently
inseparable rights to human beings, regardless of who they are, where they are
born, regardless of gender, religion or status. Human rights are equal. All
individuals in society are recognized human values and deserve to be respected.
The right of equality before the law of the litigants is a human right. It is the right
to be established human status before the law; not to be discriminated by law, the
right to have equal status before the law with the same protection of the law. It is
considered at different levels. First and foremost, equality before the law is
expressed as the need of a natural subject as a human being that must have and
needs to have; secondly: the right to equality before the law is a value of human
society; thirdly, one realizes that equality by legal means through
institutionalization and the creation of a protection mechanism when it is infringed.
Secondly, one of the basic contents of the international legal system and the
national legal system is all regulating about equality - a principle in the
construction and development of the law in general, of CP in particular,
Thirdly, the assurance and enhancement of the effectiveness of the principle
of equality before the law of the litigants in CP is one of the urgent requirements
today. In which, the socio-economic conditions, the provisions of the law on the CP

regarding the order and procedures for resolving civil cases, solving civil cases of
court cases, the activities of resolving civil cases of Courts, the activities supporting
the litigants to participate in the proceedings of organizations and individuals,
mechanisms for supervision and control of civil activities are decisive factors in
ensuring the principle of equality before the law of the litigants in the CP.
Fourthly, from the results of the research of Vietnamese legal institutions
from 1945 up to now, it can be seen that the formation and development of the civil
procedure law in general and the principle of equality before the law of the litigants
in civil procedure in particular are always associated with the development of the
State through historical periods. Accordingly, the right of equality of the litigants
before the law is always recorded and guaranteed to be carried out in social life.
Fifthly, the exercise of the principle of equality of the litigants in CP by the
competent State authorities, including the Court in the process of resolving civil

22


cases has achieved remarkable results. That result not only reflects the level of
perfection of the legal institutions of the principle of equality of the litigants that is
increasingly enhanced but it also demonstrates the operation effectiveness of the
system of judicial organs in general, the People’s Court at all levels in particular in
ensuring the equal rights of organizations and individuals in social life and legal
life. However, it is important to recognize the fact that, in the context of economic,
political, cultural and social conditions in Vietnam, the application of the principle
of equality before the law of the litigant in CP in addition to the achievements
gained has also revealed the limitations and inadequacies which are considered in
various aspects such as the identification of the litigants, the rights and obligations
of the litigants in the civil matters; in particular, the exercise of the rights to initiate
a lawsuit, the right to request of people with disabilities and the liability of the
Court for failure to apply interim emergency measures at the request of the

litigants….As a result, finding and identifying those limitations are the basis for
providing solutions to perfect the principle of equality of the litigants in CP,
meeting the requirements of the current judicial reform in Vietnam.
Sixthly, the perfection of the law on the principle of equality before the law
of the litigants in CP is itself a matter of significant theoretical and practical
significance, contributing to ensure and improve the quality of life as well as right
equality of people in general, of the litigants in particular. The perfection of the law
on the principle of equality before the law of the litigants in CP must always be in
line with the Party’s goals and leadership lines. The point of view of our Party and
State is associating the construction of an independent and autonomous economy
with active international economic integration, constantly improvement of its
competitiveness on the basis of respect for and guarantee of human rights. Based
on the theories analyzed and limitations and inadequacies drawn in the process of
assessing the current situation and practice of applying the principle of equality
before the law of the litigants in CP, the Thesis proposes the viewpoint and focuses
the recommendations on the following groups of solutions: oriented solution group,
solution group on law construction and solution group of law enforcement on the
principle of equality before the law of the litigants in CP in Vietnam today.

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