Địa vị pháp lý của thẩm phán trong giải quyết vụ án dân sự sơ thẩm ở việt nam hiện nay tt tieng anh

VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
L

VU THANH TUAN

THE LEGAL STATUS OF JUDGES IN
RESOLVING CIVIL CASES AT THE FIRST
INSTANCE LEVEL IN VIETNAM TODAY

Major: Economic Law
Major code: 9.38.01.07

SUMMARY OF THE DOCTORAL DISSERTATION
IN LAW

Hanoi - 2019


The dissertation completed at Graduate Academy of Social Sciences,
Vietnam Academy of Social Sciences

Supervisors:

1. Assoc. Prof. Dr. Bui Thi Huyen
2. Dr. Nguyen Van Cuong

Reviewer 1: Prof. Dr. Le Hong Hanh
Reviewer 2: Prof. Dr. Hoang The Lien
Reviewer 3: Assoc. Prof. Dr. Bui Ngoc Cuong

The dissertation will be defended at Graduate Academy Level Council of
dissertation assessment at Graduate Academy of Social Sciences, Vietnam
Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi.
Time: ………… date ………. month …… …year 2019

The dissertation may be found at:
- Vietnam National Library;
- Graduate Academy of Social Sciences Library


INTRODUCTION
1. The necessity of the research topic
According to the law, civil procedure is applied for resolving commercial
cases, marriage and family, labor and civil matters. In recent years, cases of civil,
marriage and family, business, commercial and labor disputes have been
increasing both quantity and complexity. Especially, business and commercial
disputes that the Court has to handle and resolve. Disputes are not only increasing
quantity but also complexity of contents. Disputes are not merely a certain field
but related to many different fields such as investment, finance, banking, goods
trading, the rights to use land and houses. This makes difficulties and obstacles to
the Courts’ ability to resolve cases.
The Court’s operation is mainly expressed through the Judge’s trial. When
resolving cases, the Judge takes part in all proceedings, in which, the firstinstance trial under the Civil Procedure Code plays a very important role. When
resolving civil cases by common procedures, besides the Judge, there are also the
People’s Jurors, but the Judge’s role is still the leading decisive factor for the
quality of resolving civil cases at the first-instance level. In particular, the firstinstance civil cases are resolved by simplified procedures without the People’s
Jurors, the Judge is the only person who makes decisions for civil disputes.
In fact, there are many shortcomings and obstacles in the process of resolving
civil cases at the first instance level, causing many difficulties for Judges when
conducting procedures. Meanwhile, the legal status of the Judges has not been

fully and clearly stipulated by law. The Judge’s duties and powers in collecting
documents and evidence are higher than the persons concerned; many persons
concerned are not aware of the justification for their request; procedural order for
resolving civil cases at first-instance level is not reasonable. On the other hand,
there are still many errors in resolving civil cases by the Judges, there are many
civil procedural violations, the rate of first-instance civil judgments being
canceled or corrected by subjective errors is still high, some cases are still
overdue; the Judge’s initiative and creativity are still limited; the coordination
between Judge and the People’s Jurors and Secretary is not really effective. The
mechanism to ensure the civil procedure activities of judges has not been really
concerned and completed. In other words, there is no clarity on both theoretical
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and practical perceptions on the legal status of the Judges in the civil procedure in
general and in resolving civil cases at the first-instance level. These causes have
directly affected the Court’s trial quality as well as the rights and interests of the
state and the people. Therefore, by examining the legal status of the Judges in
resolving civil cases at the first-instance level in line with the new situation,
thenceforth, proposing solutions and mechanisms to effectively implement the
legal status of the Judges and relevant civil procedures so as to contribute to
implement the goals of judicial reform of the Party and the State. Therefore, it is
really necessary theoretically, practically and legally to conduct the doctoral
dissertation titled “The legal status of Judges in resolving civil cases at the first
instance level in Vietnam today”.
2. Research purpose
The dissertation aims to examine systematically the theoretical and practical
issues on the legal status of Judges in resolving civil cases at the first-instance
level in a broad sense (including cases of civil, marriage and family, labor and
commercial disputes); propose solutions to improve the law on the Judge’s legal

status.
3. Research subject and scope
Research subject is the system of views, guidelines and policies of the Party
and the State, the provisions of the law on the legal status of Judges in resolving
civil cases at the first-instance level in Vietnam and some countries around the
world, cases, reports on the situation of law enforcement on the Judges’ legal
status in resolving civil cases at the first-instance level in Vietnam.
Research scope: The study examines the legal status of Judges in resolving
civil cases at the first-instance level in a broad sense (including commercial cases,
marriage, labor and civil cases) under the existing law of Vietnam. Specifically,
the legal status of Judges is determined after accepting the case and assigned by
the Court’s leader to resolve the case according to regulations. At the same time,
considering the implementation of the Judges’ legal status in resolving civil cases
at the first instance level in practice. In addition, in order to compare the legal
basis and practice on the legal status of Judges, the dissertation will explore the
concepts and legal provisions of some countries on the legal status of Judges in
resolving civil cases at the first instance level.
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4. Methodology and research methods
The dissertation is based on the methodology of Marxism - Leninism and Ho
Chi Minh thought about the State and the law.
The dissertation uses specific research methods such as: methods of synthesis,
analysis, historical analysis, comparison and statistics.
5. New contributions of the dissertation
In addition to inheriting some relevant issues of previous research works, the
dissertation has new contributions as follows:
- Regarding the approach: the dissertation not only approaches the issues of
the legal status of Judges in Vietnam today but also examines the legal status of

Judges in resolving civil cases at the first instance level. The Judges’ legal status
is comprehensively studied in terms of duties, powers and responsibilities of the
Judges when resolving civil cases at the first instance level.
- The dissertation presents concept, basic elements and characteristics of the
Judges’ legal status in resolving civil cases at the first instance level in Vietnam
today.
- The dissertation evaluates the reality of the provisions of the law and the law
enforcement on the Judges’ legal status in resolving civil cases at the first
instance level in Vietnam. It also points out the limitations and shortcomings of
the law on duties, powers and responsibilities of the Judges when resolving civil
cases at the first instance level as well as limitations and shortcomings in the
process of applying the law on the Judges’ legal status when resolving civil cases.
- The dissertation provides orientations and solutions to improve the law and
improve the Judges’ legal status, thenceforth, contributing to improving the
effectiveness of resolving civil cases of the Judges. These solutions, on the one
hand, improve the Judges’ legal status, on the other hand, improve the
proceedings to resolve civil cases at the first instance level in a scientific manner
to resolve quickly and legally cases.
6. Theoretical and practical significance of the dissertation
Theoretically: the dissertation provides a comprehensive perspective on the
issue of the legal status of Judges in resolving civil cases at the first instance
level; building and perfecting the legal status of Judges in civil procedures and
procedures for resolving civil cases at the first instance level.
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Practically: the dissertation’s solutions will be a useful reference for
improving the law on the legal status of Judges in general, and the Judges’ legal
status in resolving civil cases at the first instance level in particular. The
dissertation can be used as teaching and learning material in the field of civil

procedure law and economic law.
7. Structure of the dissertation
Besides the introduction and conclusion and references, the dissertation
includes 4 chapters:
Chapter 1
LITERATURE REVIEW
1.1. Research situation
By reviewing literature, we can see the achieved results of the research
activities as follows:
First, previous research works have initially introduced concept and
importance of the legal status of Judges in resolving civil cases is to conduct trial
and deal with matters arising from the legal relationship of marriage, family, civil,
labor and commercial business.
Second, determining the content of the Judges’ legal status in resolving civil
cases at the first instance level and factors expressing and determining the legal
status of the Judges. The legal status of Judges in resolving civil cases at the first
instance level not only based on the specific provisions of the civil procedure
Code (CPC), but also based on the Judges’ role and position in the in adjudication
– an important element of judicial rights.
Third, proposing recommendations to improve the law and the Judges’ legal
status in the reality. Proposing solutions to build standards, process for planning
and appointing Judges to meet the requirement of judicial reform, international
integration and the best assurance of the rights and obligations of the people;
solution on the independence of Judges.
1.2. Issues have not been thoroughly resolved
First, concepts of the judge as a subject of the civil procedure law with certain
rights and obligations have not been examined to determine their responsibilities
when performing those rights and obligations, for example, the Judge’s liability
on administration (disciplinary), criminal and return the case when the case is not
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judged correctly. Therefore, this concept will be further researched in the
dissertation.
Second, previous research works basically provided criteria and factors in
different perspectives to determine the Judges’ legal status in resolving civil cases
at the first instance level. However, these works have just given common factors
to determine the Judges’ status in civil procedures. These works have not yet
adequately systematized factors to determine the Judges’ legal status in resolving
civil cases at the first instance level.
Third, previous research works have just initially analyzed legal regulations
without comprehensive evaluation. In particular, they have not yet deeply
analyzed the provisions determining the Judge’s liability, one of the important
contents on the Judge’s legal status. In addition, according to the 2013
Constitution, Law on Organization of People's Courts 2014, the 2015 CPC,
currently, the provisions of the law have many changes of the rights, obligations,
liabilities, role and position of Judges.
Fourth, previous works have basically presented restrictions when the Judges
resolve civil cases at the first instance level. However, previous authors have not
yet assessed the real situation of implementing legal status of Judges in civil cases
at the first instance level, moreover, most studies were conducted before issuing
the 2013 Constitution and acts on Court organization and proceedings issued in
2014 and 2015. Therefore, previous studies have not been able to assess the
current status of the provisions of the Constitution and acts which have just been
issued that whether really improve the Judge’s legal status in resolving firstinstance civil cases or not.
Fifth, previous research works have proposed various solutions to improve
regulations on the rights to adjacent real estates in Vietnam. However, there have
not been so far any works analyze deeply solutions of improving liability, and
these solutions are not consistent with the world trend and the revolution 4.0.
1.3. The posing issues need to be further studied in the dissertation

First, the dissertation will introduce the concept of “the legal status of judges
in resolving civil cases at the first instance in Vietnam today” in accordance with
new conception of the 2013 Constitution on the role and position of the Court and
Judges, new conception of judicial rights. The dissertation aims to determine the
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internal meaning of the Judge’s legal status in resolving civil cases at the first
instance level under the existing law of Vietnam.
Second, the dissertation will give elements to show and determine the legal
status of the Judges in resolving the first-instance civil cases under the existing
law of Vietnam. These elements specify the position and role of the Judges, as
well as their duties, powers and responsibilities in resolving the first-instance civil
case. At the same time, the study will compare with the position of the Judge in
resolving civil cases at appeals, cassation and retrial level, and criminal cases and
other proceeding-conducting persons.
Third, the dissertation will analyze specifically the provisions of the law on
the Judges’ duties, powers and liabilities in resolving civil cases at the first
instance level. Thenceforth, it will evaluate the advantages and disadvantages of
the provisions of the law, the reality of resolving civil cases by the Judges and
compare to the Judges’ duties, powers and liabilities of some other countries. It
also clarifies the causes of limitations and shortcomings when the Judges
performing their duties, powers and liabilities to resolve the first-instance civil
cases.
Fifth, the dissertation proposes some new solutions to further improve the
Judges’ rights and obligations and recommend how to resolve civil cases in line
with each type of civil cases such as marriage and family, labor, business and
commercial disputes.

Chapter 2

THEORETICAL ISSUES ON THE LEGAL STATUS OF JUDGES IN
RESOLVING CIVIL CASES AT THE FIRST INSTANCE LEVEL
2.1. Concept and basic components of the legal status of Judges in
resolving civil cases at the first instance level
2.1.1. Concept of first instance procedures of a civil case
The first-instance procedures of a civil case are defined as individuals,
agencies and organizations in dispute submit petitions to the court and are
assumed and resolved by the court as a basis for resolving their rights and
obligations or of individuals, agencies and organizations.
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2.1.2. Concept of legal status of Judge
From the analysis and assessment of the legal status of Judges, we introduce
the following concept: The legal status of a Judge is the Judge’s duties, powers
and responsibilities stipulated by law, expressing the Judge’s position in
relationship with subjects in the state apparatus and procedural law.
2.1.3. Concept of legal status of Judge in resolving civil cases by firstinstance procedures in Vietnam today
On the basis of reviewing the internal aspect of the Judge’s legal status in
resolving civil cases at the first instance level, we introduce the following
concept: The Judge’s legal status in resolving civil cases at the first instance level
is overall obligations, powers and liabilities of the Judge in the relationship with
other subjects when conducting proceedings and applying the provisions of the
law for resolving civil cases under the first-instance procedure, in accordance
with the law, and determining legal consequences when the judge does not
comply with the law.
2.1.4. Basic elements of the Judge’s legal status in resolving civil cases at
the first-instance level
- The Judge’s duties in resolving civil cases at the first-instance level are
works that the Judge must do since he is assigned solving the case until the

issuance of first-instance judgments or decisions and works related to the case in
accordance with civil procedure.
- The Judge’s power in resolving civil cases under the first-instance
procedures is the right to decide conducting proceedings and issuing their
procedural decisions from they are assigned solving the case until the issuance of
judgment and other rights related to the case under the provisions of civil
procedural law.
- The Judge’s liability in resolving civil cases at first-instance court is that the
judge is sanctioned by the provisions of the law for failing to properly perform
their duties and powers.
2.2. Elements expressing and determining the legal status of Judges in
resolving civil cases at the first instance level
Political, economic, socio-cultural and legal elements always impact on the
Court system in general and the legal status of procedural subjects in particular,
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including Judges. When resolving civil cases by the first-instance procedures,
elements expressing and determining the Judges' legal status are shown as
follows:
2.2.1. The Judge’s position and role in the Court system and in the State
apparatus
The People’s Court is the only body exercising judicial rights with an
independent position and indispensable part of the state apparatus. Amongst the
judicial agencies, the Court is the judging body and has the most important
position and role.
In the State organizational system, the Judge is a civil servant, working in the
People's Court and a directly proceeding-conducting person. As the person
assigned hearing of the Court, the Judge has an important and indispensable
position in exercising one of the powers of the State.

2.2.2. The Judge’s legal status is expressed through independent trial
Any country in the world also considers the Judge’s principle of independent
trial to be one of the most important ones, ensuring a stable and fair legal regime.
Those are necessary elements for a fair trial. On the basis of the Code of Ethics
for Judges dated July 4, 2018, elements of judicial independence of the Judges
including the Judges make their own decisions based on their assessment on
circumstances and evidences of the cases and comply with the law; the Judges
must maintain professionalism, not affected by any intervention; the Judges must
be independent persons from Panelists and independence from other proceedingconducting persons; especially, the Judges must be independent persons from
internal and external factors of the Court. Those are necessary elements for the
Judges to issue a fair judgment.
2.2.3. Vietnam’s civil procedure model
The Judges’ role in each form of proceedings is different, leading to different
provisions on the Judges’ duties, powers and responsibilities. In civil procedure
model of Vietnam, the Judges engage in proceedings, from the collection of
evidence and documents to hearing cases. When resolving a civil case, on the one
hand, the Judges must ensure two elements are litigation and interrogation in
accordance with the order of the CPC, on the other hand, they must apply

8


accurately and fully the provisions of the law so as to give the “final product” is
that a correct judgment and decision.
2.2.4. The nature of a civil case shows the judges’ legal status
First, the nature of the legal relationship is the basis for defining the Judge’s
duties and powers when resolving cases. The Judges comply with the proceedings
and depending on the scope of trial and the limit of trial of each type of
procedural relations stipulated by law. In civil proceedings, the Judge’s role is
more clearly shown, adjudicating cases involving many different fields. The

judge directly set up files of the case by collecting documents and evidence;
applying temporary emergency measures; organizing meetings to check the
handover, publicize evidence and mediate; prepare files of the case, directly
conduct trials and issue judgments and decisions.
Second, from the perspective of proceeding-conducting under the firstinstance, appellate process, reviewing judgments (cassation, review court), when
hearing first-instance civil cases, the Judges must do many more duties and
powers than others at other proceedings. In addition, their responsibility is very
heavy when resolving incorrectly cases, especially, violating civil procedures.
Third, considering the Judges’ legal status in relation to the proceedingconducting persons when resolving civil cases at the first instance level. The
judge is the conducting-proceeding person along with Procurator, People's Jurors
and Court clerk, but is the most important proceeding-conducting person.
2.3. The relationship between the judge’s legal status and other entities
when resolving civil cases according to first-instance procedures
- The relationship between the Judge’s legal status and the Court’s Tribunal
president at the same level;
- The relationship between the Judge’s legal status and the People's Juror’s
legal status;
- The relationship between the Judge’s legal status and the Procurator’s legal
status representing the People's Procuracy;
- The relationship between the Judge’s legal status and the Court’s clerk and
inspector’s duties and powers.
- The relationship between the Judge’s legal status and the litigant’s legal
status;
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- The relationship between the Judge’s legal status and competent agencies,
organizations and individuals in providing documents and evidence;
- Assessing the legal status of the Judges in resolving cases under the firstinstance procedures with the Judges who resolve the cases under the appellate
procedures; reviewing judgments and decisions took effect.

\
Chapter 3
THE REALITY OF THE JUDGE’S LEGAL STATUS IN RESOLVING
CIVIL CASES AT THE FIRST INSTANCE LEVEL UNDER THE
EXISTING LAW
3.1. The reality of the provisions of the law on the Judge’s legal status in
resolving civil cases under the first-instance procedures
3.1.1. The reality of the provisions of the law on the Judge’s duties and
powers in resolving civil cases under the first-instance procedures
- The Judge’s duties and powers in the stage of lawsuit and assume civil cases
- The Judge’s duties and powers in the stage of preparing for hearing of civil
cases at the first instance level include:
First, determining status of litigants and other participants; determining
disputes in the relationship among the involved parties and the applicable law;
Second, setting up files of civil cases; collecting evidences and organizing
court panels.
Third, requesting the Court’s Tribunal president assigns inspectors to support
Chief Justice of the Court to assign examiners to support proceeding-conducting;
Fourth, issuing procedural decisions;
Fifth, explaining and guiding the litigants so that they request legal aid in
accordance with the law on the legal aid;
Sixth, conducting meetings to check the handover, access, disclosure of
evidence and mediation; issuing a decision to recognize the agreement of the
litigants;
Seventh, the decision of hearing the civil case and to summon participants;
- The Judge’s duties and powers at court including stipulations on procedures
for starting the trial; procedures of litigation; to consider a verdict and sentencing
procedures.
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- The Judge requests the Chief Justice of the Court to propose the competent
State agency to consider, amend, supplement or abolish legal documents;
- Handling acts of obstructing civil proceedings under the provisions of the
law;
- The Judge’s duties and powers after the conclusion of a first-instance civil
trial including amendment and supplement of judgments; the Judge issues a copy
of judgments; delivery and sending judgments;
- Conducting other proceedings when resolving civil case under the provisions
of the CPC;
- Judges' legal status when dealing with cases by the abridged procedure.
3.1.2. The reality of the provisions of the law on the Judge’s liability in
resolving civil cases at the first-instance court
- The Judge's liability when violating but not to extent of being disciplined: In
addition to the provisions on disciplinary liability, civil liability (compensation)
and criminal liability, the Supreme People’s Court has regulations on handling
persons holding judicial titles in the People’s Courts who commit acts of
violations due to irresponsibility or violations while performing assigned tasks
but not seriously enough to be disciplined under Decision No. 120/QD-TANDTC,
dated June 19, 2017 of Chief Justice of the Supreme People’s Court.
- Disciplined responsibilities: Violations of Judges in the process of resolving
civil cases at the first instance level in particular and official duties in general,
will be disciplined or or be prosecuted for criminal liability or both. Judges are
the State employees, so the discipline against them also comply with the general
regulations for public employees. The Law on officials and public employees has
six forms of disciplines including written reprimand; verbal warning; lower wage
level; downgrade; demotion and dismissal. Depending on the seriousness and
nature of misconduct, the Judge may be applied by the above disciplinary
measures.
- Criminal liability:

Criminal liability is applied for Judges is the most severe kind of liability for
acts of infringing on the correctness of proceedings. The current Criminal Code
prescribes crimes of infringing upon judicial activities, commit crimes to
proceeding-conducting persons and proceeding participants. In case the Judge is
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convicted by court and the sentence or decision took effect, he/she will
automatically stop holding job title; in case of being sentenced to imprisonment
by the Court but not entitled to a suspended sentence, he/she will automatically be
dismissed.
- Judges are responsible for returning the State budget:
In the course of performing official duties, judges who have committed illegal
acts, causing material and mental damage to individuals or organizations, shall
have to consider the compensation liability if the victims have written requests.
Compensation is first borne by the Court where the Judge is directly managed.
And then, the Judge must return part or all of the amount to the state budget that
the State has compensated the victim.
3.2. The reality of law enforcement on the legal status of Judges in
resolving civil cases at the first instance level
3.2.1. The achieved results
First, the independence of Judges when resolving civil cases is increasingly
guaranteed;
Second, quantity and quality of judges are strengthened and increased;
Third, results of resolving civil cases of Judges are increasingly guaranteed in
terms of quality.
3.2.2. Shortcomings when performing provisions on the legal status of
Judges in resolving civil cases at the first instance level
In addition to the advantages and achieved results, the implementation of the
Judges’ legal status in resolving civil cases at the first instance level still has

many shortcomings, difficulties and obstacles.
- The principle of independence has not been fully implemented while the
Judge hearing, as well as not determine correctly position and role of the Judge:
first, the Judge and the trial panel are affected by external factor; second, the
principle of independence when the Judge resolving case is negatively affected by
the Judges themselves. The principle of independence is also violated by the
Judges themselves “allow” without protest or not dare to protest.
- The procedure of resolving civil cases is not reasonable:

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First, from assume jurisdiction to trial, the Judge must perform a lot of
procedures to notify and deliver to the litigants, many procedures are not
necessary causing financial waste and time.
Second, provisions on prescription of lawsuit is not appropriate
Third, provisions on meetings for checking the handover of, access to and
disclosure of evidences and conciliation are not appropriate;
- The procedure for resolving civil cases has not met the requirements of the
technology revolution: Other areas of life including tax, finance, banking and
public administrative procedures have been applying the achievements of
technology revolution, technology 4.0 for its activities. However, the procedure
for resolving civil disputes at the People’s Court still exists rigid and inflexible
proceedings. The law has not yet provided the use of telephones, mail, zalo, and
facebook in notices, summons of litigants, mediation notices, publicity.
- Situation of Judges violating procedural procedures when performing their
duties and powers in resolving civil cases:
First, Judges collect incorrect documents and evidence;
Second, Judges (Trial panel) assess evidence inappropriately and not
objectively;

Third, errors due to lack of proceeding participants;
Fourth, errors of Judges in resolving civil cases at the first instance level due
to not guarantee procedure of collecting evidence;
Fifth, Judges are confused the time to make a counterclaim of the defendant
and the independent claim of persons with relevant rights and obligations;
Sixth, many first-instance civil judgments are declared inaccurately content
and inappropriate form;
In addition, there are still cases that judges seek to extort the person
concerned; with their poor qualifications lead to hinder civil procedure operation
and reduce people’s trust into the legal policy.
- Classification of judgments and division of resolving civil cases at the first
instance level are not appropriate, does not ensure the random, objective and fair
elements.

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Chapter 4
DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW AND
EFFECTIVENESS OF JUDGES’ LEGAL STATUS IN RESOLVING
CIVIL CASES AT THE FIRST INSTANCE LEVEL
4.1. Directions to improve the law on the legal status of Judges in
resolving civil cases under the first-instance procedures
4.1.1. Directions to improve the Judge’s duties and powers
In the field of civil procedures, directions to improve the Judge’s legal status
should be developed in line with the nature of civil procedures. Accordingly, it is
necessary to restrict and remove a number of duties and powers of the Judge in
collecting documents and evidence. At the same time, heighten role of the
persons concerned in finding and providing evidence to the Court to protect their
rights and interests. Thereby, the persons concerned could access and know the

contents of documents and evidence as an important basis in implementing
litigation principle.
Adding more rights for Judges when resolving civil cases at the first instance
level such the right to notify by phone, email, internet or to perform some online
procedures with participation of the People’s Procuracy, local government to deal
with the case quickly, accurately, in accordance with the country’s requirement
for industry 4.0 while simultaneously ensuring the right to litigation and access
publicly evidence of the persons concerned.
Set up procedural procedures that may conduct online trials of disputes related
to purchase and sale goods online by simple procedures and less time
4.1.2. Directions to improve the Judge’s responsibility
At present, the Judge's responsibility includes: The Judge who has committed
violations but not to the extent of being disciplined; disciplinary responsibility;
compensate for damages; criminal responsibility. Assessing the provisions on the
Judge's responsibility, besides the advantages of improving the the Judge’s
responsibility and ensuring the Court’s function of hearing, the provisions on the
Judge's responsibility are too detailed, many sanctions can affect the career,
leading to the “excessive caution” of each Judge when solving the case.
Directions to improve the Judge’s responsibility in resolving civil cases at the
first instance level should enhance two contents: first, to build up a full and
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uniform system of legal documents on the Judge’s responsibility to avoid
overlapping between handling measures; second, to build up a system of
classifying cases nationwide in a random and fair manner; to build up criteria for
assessing the Judge’s capacity and responsibility based on the whole process of
handling cases, it is necessary to rebuild criteria for the percentage of cases to be
amended or canceled by a higher direction.
4.2. Improving the provisions of the law on the legal status of Judges in

resolving civil cases under the first-instance procedures
4.2.1. Improving the provisions related to determining the Judge’s position
and role
It is necessary to determine correctly the Judge’s position and role in the
system of State agencies in general and the Court in particular, it is necessary to
consider the Judge as a profession and creating conditions for the Judge’s
independence to hear and enhancing education level. In addition, it is necessary to
have mechanism of periodic inspection on the trial quality, nature and violations
or his/her health so as to dismiss Judges who no longer qualify.
4.2.2. Improving the provisions on the Judge’s tenure
It is necessary to study and stipulate uniformly the tenure of all Judges;
increasing the tenure as well as retirement age for Judges so that they feel secure
in their work, and as the basis for determining the Judges’ position compared to
other public employees. In fact, judges retired to be highly qualified persons and
experiences in hearing. After retiring, most of the judges continue to be lawyers,
notaries, and participate in teaching.
4.2.3. Improving civil proceedings related to the Judge’s duties and powers
when resolving civil cases at the first-instance Court
- Improving civil proceedings related to the Judge’s duties and powers when
resolving civil cases at the first-instance Court:
First, solving problems and shortcomings when the Judge conducts a meeting
to check the handover, access, and publicity of evidence for complex civil cases
involving many subjects, many fields and large assets, a thousand of documents
and evidence, the meeting takes place the whole day or many days. The law
should stipulate the Judge just needs to notice the title of documents, if the person

15


concerned requests specific content of the document, the Judge just has to open

that document.
Second, the procedural law should stipulate that the Judge has the right to
make decisions to recognize a partial agreement when conducting mediation in
the stage of trial preparation. That decision will take effect immediately and is not
appealed or protested.
Third, the law should stipulate that the Judge has the right to issue decisions to
suspend partially settling the case for lawsuit, counterclaim, independent claim in
the case of suspension under the Article 217 of the CPC. The suspension is not
related to the rest of requests. Decision of suspending partially shall be considered
costs respectively.
Fourth, improving regulations on procedures of notifying the persons
concerned: In order for the persons concerned to fully and properly carry out their
rights and obligations, right after accepting the cases, it is necessary to have
regulations that the Judge should notify in document so that the persons
concerned know their rights and obligations when participating in the
proceedings. When the Judge brings the case to trial, at the same time notify in
writing the rights and obligations of the involved parties and other proceeding
participants at the Court. The purpose of the notice is that the persons concerned
can fully exercise their rights such as: Requesting people to protect the legitimate
rights and interests; providing documents and evidence; asking for summoning
more witnesses before hearing to avoid having to postpone the trial.
- Improving procedures of resolving civil cases without the involved parties
First, for cases, if an involved party is intentionally absent: the CPC must
stipulate specifically the order and procedures for the involved parties who are
intentionally absent and non-cooperate. Accordingly, the Judge just needs to
notify once or in document requesting the involved parties to be present at the
Court in a specific time to participate in the proceedings such as self-declaration
and public disclosure of evidence to reconcile and hear. If the involved parties
come to the Court, the Judges shall follow the usual procedural process; In cases,
the involved parties are still intentionally absent, the Judges still conduct the

proceedings without having to postpone or convene.

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Second, for cases, there is one involved party in the trial only, it is necessary
to stipulate simple procedures, remove the content of argument procedures at the
court; In case both the involved parties are absent, representative of Procuracy,
agencies, organizations and other individuals (if any) just have opinions, then the
Judge and the trial panel shall consider a verdict and making decision.
- Having regulations that the Judge or the trial panel has the right to amend
and supplement the judgment in a broader, and the involved parties have the right
to appeal the amendments and supplement since they receiving the amended and
supplemented document. Thus, this still ensures the involved parties’ rights and
avoid cancelling or retrial the case.
In particular, the procedural law should have provisions that the Judge and the
Trial Panel have the right to amend and supplement the decision to recognize the
parties’ agreement; amend and supplement the suspension decisions and other
decisions, these contents have not been prescribed by law.
4.2.4. Improving regulations on responsibilities of Judges when conducting
proceedings
In addition to regulations on the Judge’s duties and powers, the CPC needs to
have more detail regulations on responsibilities of the Judges and the Trial Panel.
Specifically, the Judge’s responsibility when accepting petition; the Judge’s
responsibility as a chair; not as a chair; as an alternate and responsibility of the
people’s Jurors.
Currently, the Judge might be disciplined, reimbursed (civil) and criminal
liability when resolving cases. In addition, according to Decision No. 120/QDTANDTC, the Judge’s responsibility in cases not to extend of being disciplined,
including various levels of handling such as self-criticism; suspend assigned
works; to be arranged other works; have not considered the request for

reappointing the Judge; do not consider the request for reappointing the Judge.
However, the above decision may be an obstacle to the implementation of judicial
reform in the Court system, affecting the Judge’s principle of independence.
Therefore, it is necessary to study and consider to amend and supplement the
provisions of Decision No. 120/QD-TANDTC by drawing experience; not
considering emulation; force to learn more knowledge and professional ethics.

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Other violations under the regulation of the Law on Public Officials; the law on
compensation of the State and the Criminal Code.
4.2.5. Online court hearings with online trials
Renewing administrative procedures and procedures of resolving cases
consistent with the trend of technology and the world is an urgent requirement in
the current period, when the number of cases is increasing, especially in the field
of e-commerce and Internet. Therefore, it is necessary to set up the online court
hearings or online trials in Vietnam to apply some certain areas and pilot
implementation in some courts with simple methods and procedures compared to
normal procedures to ensure quickly and accurately.
4.3. Improving the law enforcement on the judges’ legal status in
resolving civil cases under the first-instance procedures
4.3.1. Renewing awareness and thinking about judges’ legal status in
resolving civil cases under the first-instance procedures
Currently, many people consider the People’s Court at all levels as an agency
under administrative agencies or Party agencies. For the persons concerned and
other proceeding participants in many cases thought that it is just a civil case, so
when summoned by the Judge, they did not cooperate or ignore, this leads to take
time and cost. This affects the position and role of the Court at all levels, as well
as the Judge’s legal status. Procedural law does not yet have an appropriate

mechanism so that the judges to well perform their duties and powers, to protect
justice, the rights and interests of the people.
The State agencies, organizations and individuals must consciously comply
with the law, respect the solemnity, and protect the justice of the Judges. That
requires not only the State agencies but also the people to improve their
understanding of the law; attitude towards the law and the ability to implement
and apply the provisions of the law.
4.3.2. Improving the capacity, qualifications and management of the judges
in resolving civil cases under the first-instance procedures
First, to further strengthen role of the agency who managing judges, the
Council for selection and supervision of national Judges in ensuring the principle
of independent trial and managing trial quality of judges. Identify the Judges’
duties and powers in resolving cases including first-instance civil cases. To
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periodically perform the examination of the Judges’ qualifications and
competencies. It is necessary to strictly handle Judges who have committed
violations under the law provisions, especially suspend Judges who have
committed many times in a short time.
Second, the Courts need to regularly organize training courses to enhance
knowledge and professional and political qualifications for Judges, in which,
focusing on training new legal documents, hearing cases under new authority,
withdraw experiences from appellate trial and training knowledge related to civil
cases hearings, especially complicated civil cases. In order to have an accurate,
objective and fair judgment, the Judges not only master the law but also have
certain insightful knowledge in other fields such as health, finance – banking,
accounting, environment, land and construction.
Third, to implement effectively employment scheme. The Judge as a special
public official compared to other civil servants and officials in the state agencies,

thereby, increase the salary and compensation levels so that the Judges feel secure
in their work. At the same time, continue to deploy the recruitment and
appointment by examining openly and transparently for the Judges’ job titles.
To build up strategies of developing Judges in the People’s Court system. To
regularly review, improve standards and conditions on ethical quality, leadership,
management and professional skills for Judges. To carry out strictly and
effectively the Judges’ property and income declaration.
4.3.3. Ensuring the assignment of Judges in resolving civil case based on
the principle of impartiality, objectivity and randomness
Provisions on the principle of assigning cases impartiality, objectivity and
randomness, for the first time, are stipulated by the CPC. For the principle, a
person who has been assigned as a Judge can solve all kinds of cases. In fact, job
assignment is still inadequate, the Judge could choose the case easily or the cases
with familiar relations. The assignment of first-instance civil cases in particular
and civil cases in general must be based on the principle of impartiality,
objectivity and randomness, which contributes to ensuring the principle of
independence and fairness. To well implement this principle, the Court's
leadership to be impartial for the work, is not for affection, finance.
4.3.4. Enforcement of judgment and to report judgment
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In the world, enforcement of judgment and report judgment of Judges before
the leader and management agency are one of the factors determining whether or
not independence in the trial. At that time, the decision of the Trial Panel and
Judges was not their will, not based on the process of litigation between involved
parties, but depend on the subjective will of a few of leaders. A developed
country’s judiciary will ensure that justice and human rights are always associated
with the independence in the trial.
In Vietnam, there are still enforcement of judgment and report judgment

before hearing in some Courts. This has been happening in the People’s Court
system. We do not deny the positive side of the enforcement of judgment and
report judgment of the Judge who directly resolve and hearing civil cases toward
the court leaders, is that united application of law. The head of agency and unit
must take major responsibility in managing work, especially the trial quality, not
abuse the trial, exchange professional opinions to review the cases or impose
personal views against the principle of independent trial and just comply with the
law in resolving cases. Therefore, in order for the Judge, the trial Panel can hear
independently, will be an urgent requirement that must be respected.
4.3.5. Improving duties, powers and responsibilities of other entities that
affecting the judge’s legal status
First, duties and powers of the alternate Judge: For the first time, the Article
197 of the CPC stipulates the assignment of Alternate Judge along with the Judge
to resolve the case. However, the law does not specifically stipulate the duties,
powers and responsibilities of alternate Judges in the preparation of hearing or
they have rights or opinion regarding the collection of evidence of the Judge. In
fact, when hearing the case, the Judge cannot carry out the task, the Alternate
Judge will replace. However, the case will be lasted and wasting time and cost if
the alternate Judge thinks that such documents and evidence are in complete, lack
of proceeding-conducting persons or the Judge committed violation of collecting
documents and evidence. These inadequacies have not been solved by the 2015
CPC.
Second, for the people’s juror: The People’s juror and judge are the
proceeding-conducting persons when hearing civil cases. There is independence
between the Judge and the People’s juror but they have a close procedural
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relationship. Therefore, it is necessary to improve regulations on the People’s
juror in order for the Judge to well perform the duties, powers and

responsibilities. Civil procedure laws need to stipulate that the People’s juror
participates in the proceedings since accepting the case so that the People’s juror
can study documents collected by the Judge, together with the Judge make the
next issues and contents. At the same time, the People’s jurors have more time to
study legal documents, because most of them concurrently work other jobs, they
have not broad legal knowledge, and showing position and role of the
“representative of the people” to give opinions in the Court’s trial activities.
Every year, the People’s jurors must be adequately trained professional. In
addition to the Judge’s responsibility, the law must stipulate responsibility of the
people jurors so that they are more responsible in conducting proceedings. At the
same time, it is necessary to have incentive, rewards and discipline for the people
jurors.
Third, for procurators: Article 58 of the CPC stipulates prosecutors
participate in civil hearings. However, the civil procedure law has not stipulated
highlighting the procurator’s role in proceedings. The law has not had provisions
for procurators to request or make written recommendations after reading files
transferred by the Court. In our opinion, it is necessary to supplement this
provision so that the Judge can review and correct deficiencies (if any) before the
trial takes place to avoid the situation, procurators propose errors in the process of
preparing trial, then the trial panel must postpone the trial leading to time and
costs waste. At the same time, the civil procedure law should have provisions that
the Judge is allowed to collect evidence after having decision of trialing the case
(only for cases proposed by procurators) and at the court.
Fourth, for defense counsel of rights and interests of the litigants: The
participation of the defense counsel of rights and interests of the litigants is
important in set up the files of the case and adversarial process at a court hearing,
making an important contribution to the judicial reform under the Politburo’s
Resolutions No. 08/NQ-TW dated 2 January 2002. Most of the defense counsel of
rights and interests of the litigants are lawyers who understand the law, so they
will hear the case accurately and in time.

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The defense counsel of the lawful rights and interests of the litigants
participates in the proceedings when the litigants request and the Court register
for defense counsel of the lawful rights and interests of the litigants (Article 75 of
the CPC) the court is not obliged to ask someone to protect its lawful rights and
interests. However, in the context of increasing civil cases, complicated subjects,
the litigants have not been proactive in collecting evidence to protect their rights
and interests, the trial quality of the judge is not high, it is necessary to regulate
the participation of the defense counsel of the lawful rights and interests of the
litigants in some cases such as disputes over land use rights, house ownership,
commercial disputes, cases with high cancellation and correction rates. In fact,
the cases involving the defense counsel of the lawful rights and interests of the
litigants will help the Judge to further collect evidences and limiting the violation
of the proceedings of the Judge, the litigants are less likely made obstacles when
the Judge conducts the proceedings.
4.3.6. Strictly comply with the regulation on handover documents and
evidence by the parties, individuals, agencies and organizations
The litigant’s handover documents and evidence is the right and obligation. In
the process of resolving the first-instance civil cases, the Judges must strictly
carry out their tasks and powers while simultaneously guiding and explaining the
litigants and other proceeding participants could implement properly their rights
and obligations. For the litigants, the Judges should request the litigants
themselves to collect documents and evidence to protect their lawful rights and
interests.
In case of requesting agencies and organizations to supply evidence, the
Judges must issue Decision on the supply of evidence to ensure the legal values
of proceedings, obligation and time to provide evidence of agencies or

organizations who are required. In cases, for those who must provide evidence
but they deliberately didn’t submit evidence to the Court, the Judges shall base
upon the provisions of Article 489 of the CPC to handle administratively the act
of refusing to provide documents without the legitimate reasons.

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CONCLUSION
The Judges have not only an important position and role in the Court system
but also for judicial activities in general. The proceedings of the Judges are in the
name of the State to define the rights and obligations of the subjects, so it is
necessary to clarify and complete the provisions on the legal status of Judges.
Based on the identification of research subjects and scope, in order to achieve
the research purpose, the dissertation has in turn addressed the research tasks. The
dissertation has achieved the following findings:
1. The dissertation has introduced the concept of the Judges’ legal status in
resolving civil cases at the first instance level is overall obligations, powers and
liabilities of the Judges in the relationship with other subjects when conducting
proceedings and applying the provisions of the law for resolving civil cases under
the first-instance procedure, in accordance with the law, and determining legal
consequences when the judge does not comply with the law. Since then, the study
contributes to identify fully and accurately the Judges’ legal status in resolving
civil cases at the first instance level. At the same time, the dissertation has also
analyzed the legal bases to identify the basic elements of the Judges’ legal status
in resolving civil cases at the first instance level in Vietnam today, including the
Judge’s duties, powers and responsibilities in resolving the first-instance civil
cases. Thenceforth, the dissertation has proposed solutions to improve the law and
effectiveness of the Judge’s legal status in resolving the first-instance civil cases
nowadays.

2. The dissertation has synthesized the reality of provisions of the law and the
law enforcement on the Judge’s legal status in resolving civil cases at the first
instance level in Vietnam today. It has also analyzed the achievements and
shortcomings of the Vietnamese law, as well as inadequacies and limitations in
the process of applying the law. Since then, the dissertation has provided
comprehensive directions and solutions to improve the law on the Judge’s legal
status in resolving the first-instance civil cases, as well as the Judge’s legal status
in general.

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