VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
L
TRAN THI QUYNH CHAU
REPRESENTATIVE OF LITIGANT IN CIVIL
PROCEEDING IN VIET NAM
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
Supervisor: Assoc. Prof. Dr. Duong Anh Son
Reviewer 1: Prof. Dr. Hoang The Lien
Reviewer 2: Assoc. Prof. Dr. Bui Thi Huyen
Reviewer 3: Assoc. Prof. Dr. Nguyen Thi Que Anh
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
INTRODUTION
1. Rationale of the dissertation
In recent years, representatives of the litigants in civil
proceedings have gradually claimed their position and role in the
proceedings, increasingly proved to be one of the indispensable
components in Civil Procedure. The proper determination of the role
of the litigant's representatives in civil procedures is a necessary and
important work. The activities of the litigants' representatives in civil
procedures impact not only the activities of the participants in
procedures but also the activities of proceeding authorities,
contributing to the promotion of social democracy and progress,
perfecting and defending socialist legislation.
The representative of the litigant is a person involving in civil
procedures and acting on behalf of the involved party to implement
his/her procedural rights and obligations to protect his/her rights and
interests. Participation in the proceedings of the litigant's
representative in civil proceedures play a significant role in resolving
civil cases, especially cases in which the involved parties cannot
implement their rights and obligations themselves. According to the
provisions of the Civil Procedure Code (CPC), there are 3 types of
representatives of the involved parties: the representatives at law, the
proxy representatives and representatives appointed by the Court.
The participation in civil procedure of the litigant's representative is
important to protect the lawful rights and interests of the litigant as
well as finding the truth in civil cases. Recent years’ reality shows
that it is very necessary to prescribe a "representative" in procedures,
in order to ensure that the oral argument takes place in accordance
with the law to properly protect the lawful rights and interests of the
involved parties. However, over the past time, the provisions on
"representative" in procedures are not only not specific enough but
also lack of uniformity, affecting procedural activities of many
proceeding authorities, leading to unguaranteed lawful rights and
interests of the litigants.
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Provisions on representative of the involved parties in civil
procedures were first introduced in Ordinance No. 27-LCT/HDNN8
on Procedures for resolving civil cases issued by the State Council on
December 7th, 1989 and continued to be prescribed in the Civil
Procedure Code 2004. Most recently, the regulations on
representative of litigants are stipulated in the Civil Procedure Code
2015. However, practice shows that the provisions of the law have
revealed some inadequacies as many regulations are not clear or
appropriate while there are som necessary issues not yet codified. In
addition, there are still a lot of difficulties in applying provisions of
law in real life.
Stemming from the role of the litigant's representative, the
reality of the law and the practice of applying the law, it is essential
to study the litigant’s representative in civil proceedures. On the
other hand, the provisions of the law as well as research on
representatives in civil procedures are still incomplete, and it is
necessary to conduct a study which is more fulfilling. Comprehensive
study and assessment of the provisions of the law related to the
representative of the litigants in civil procedures, practical assessment
of the application of law in civil proceedings, from which to propose
solutions to improve the law and improve the effectiveness of the
above-mentioned issues, improve the efficiency of legal proceedings
in the Court, better protect the rights and interests of the parties to the
dispute.
For the abovementioned reasons, the author decide to choose
the topic: "Representative of litigant in Vietnam civil procedures at
present" in order to partially contribute to solving the above issues.
2. Purpose and duty of the thesis
2.1. Purpose
The dissertation's purpose is to contribute to supplementing
and completing the legal and scientific theoretical system on
representative of the involved parties in civil procedures; assess the
provisions of current law and law application practice; henceforth,
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propose specific solutions to contribute to enhancing the law
governing the representative of the litigant - an integral part of civil
procedure.
2.2. Duty
To achieve the above-mentioned objectives, the thesis's duty
is specified as follows:
- Getting an overview of the research carried out on the topic
before to clarify the points to be inherited and the ones that need to
be further studied in the thesis; clarify the theoretical basis of the
thesis’s topic;
- Studying, analyzing and clarifying legal and theoretical
issues on the representative of the involved parties in civil
procedures;
- Analyzing and assessing the current situation of Vietnamese
law and law application practice on representative of the involved
parties in civil procedures; indicate the limits and inadequacies in
practice of law and in the reality of solving civil cases relating to the
involved parties' representatives participating in civil procedures;
- On the basis of theoretical and practical research, the thesis
proposes orientations and some solutions to improve the law as well
as improve the efficiency of law application on representative in civil
procedures in Vietnam nowadays.
3. Subject and scope of the thesis
3.1. Subject of the thesis
- Researching basic theoretical issues about the litigant's
representative in civil procedures: concept, classification, bases for
establishing representative relations, requirements to become a
representative, term of representation, scope of representation,
contents of the representative relationship, grounds for termination of
the representative relationship and legal consequences of such
termination.
- Studying the law of some countries in the world on
representation of the involved parties in civil procedures.
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- Studying the provisions of Vietnamese law on
representation of the involved parties in civil procedures.
- Studying practice of applying current law provisions on
representation of the involved parties in civil procedures at courts
over the years.
3.2. Scope of the thesis
Content: The research scope of the thesis is theoretical and
practical issues of the litigant's representative in civil procedures in
accordance with the civil procedure law.
Space: The thesis focuses on studying Vietnamese legal
system of the litigant's representative in civil procedures, as well as
the practice of applying law on represetation of the litigant in civil
proceedings at People's Courts in Vietnam. The study of legal
experience of countries on representation in civil proceedings
through secondary sources is only to clarify the legal theoretical
model on this matter.
Period: The thesis focuses on researching issues related to
representation of the litigants in civil procedures according to the
Civil Procedure Code 2015. However, the part of the thesis about law
applying practice does mention cases that happened earlier.
4. The methodology and research methods of the thesis
The thesis is conducted based on the philosophy of Marxism
and Leninism, directly use the combination of theory and practice,
general analysis, specific history and specialized research methods
such as: methods of normative analysis, practical survey methods,
comparative statistics, meta analysis, case studies ...
5. New scientific contributions of the thesis
The thesis conducts a comprehensive and systematic study on
litigant's representation in civil procedures; basic contents of the law
on representation; analyes the practice of law and law application on
representation in civil procedures; Hence, it proposes solutions to
improve the law and improve the effectiveness of applying law on
representation in civil procedures.
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Theoretically, the thesis explains matters relating to
representation in civil procedures; analyzes and gives a definition of
a representative; clarifies the basic purpose of representation. The
thesis explains theoretical aspects of representation in civil
procedures such as: content of representation relations, bases for
establishing representation relations, legal consequences of
establishing and termination of representation, term and scope of
representation. The thesis also shows some regulations on legal
representation in a number of countries, thereby drawing lessons for
Vietnam.
The thesis has analyzed and objectively evaluated the current
reality of law and practical application of law on representation in
civil procedures in Vietnam; clarified the inadequacies, overlaps and
limitations of the legal provisions on representation in protecting the
interests of involved parties in civil procedures. Key contents of
provisions of Vietnam law on rights and obligations of
representatives, the bases as well as the legal consequences of
establishing and terminating representative relations have also been
systematized, analyzed, explained and clarified.
Based on the theoretical and practical issues that have been
clarified, the thesis proposes synchronous and scientific legal
suggestions and solutions to overcome the limitations and complete
the provisions of law on representation in civil procedures of
Vietnam today.
6. Theoretical and practical meanings of the thesis
The conclusions, proposals and recommendations given by
the thesis are based on scientific and practical basis. Therefore, they
can be refered to in amending and supplementing civil procedure law.
At the same time, the findings of the thesis are also useful for
reference in studying, researching and teaching about law on
representation of the litigant in civil procedures at institutions either
specialized in law training or not.
7. The structure of the thesis
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In addition to the introduction, conclusion and references, the
thesis consists of four chapters:
Chapter 1: Literature review
Chapter 2: Theoretical issues about litigant's representation in
civil procedures.
Chapter 3: Reality of law on litigant's representation in civil
procedures and law application.
Chapter 4: Recommendations and solutions to improve the
law on representation of litigant in civil proceedings.
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CHAPTER 1
LITERATURE REVIEW
1.1. Literature review
1.1.1. Research on theoretical and practical issues of law on
representation
1.1.2. Research on theoretical and practical issues of law on
rights and obligations of representatives in civil procedures
1.1.3. Research on reality of law and law application on
representatives of the litigants in civil procedures
1.1.4. Proposals to improve the law on litigant's
representatives in civil procedures of published research
1.2. Value and shortcomings of related research
1.2.1. The issues related to the thesis which have been
solved
Published research results on litigant's representatives have
clearly indicated concepts, bases for establishment, rights and
obligations, grounds for termination of representation and legal
consequences of such termination. Studies have pointed out the
differences between the content represented in the law in Vietnam
and the laws of other countries in the world. The above works have
analyzed and assessed the current practice of the provisions on
representatives of the involved parties in civil procedures prescribed
in Vietnamese law and proposed some solutions to enhance the role
of these people. Some articles published in journals have also
mentioned the experience of some countries for reference in the
process of completing Vietnamese law.
1.2.2. Points that the thesis will inherit and continue to
study further
The author recognizes the results that the researches related
to the topic have achieved, hence, the thesis will continue to research
in order to inherit and develop the content of the litigant's
representative in civil proceedings.
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1.2.3. The issues that the thesis will continue to research
However, the above studies have left a number of issues
unexlained and this thesis will conduct a more comprehensive study
of such issues as follows:
Firstly, the thesis will further clarify the concept relating to
the representative of litigant in civil procedures, characteristics of
representative relations, classifications of representative of the
litigants in civil proceedings, state the differences between
representatives of the involved parties in civil procedures and in other
branches of law.
Secondly, the thesis will research the matter of adjusting the
law on litigant's representative in civil procedures and provide overall
assessment on litigant's representation in civil procedures through
versions of law.
Thirdly, the thesis will analyze and assess Vietnamese law’s
provisions on representatives of litigants in civil procedures, point
out the inadequacies, inconsistences or overlaps in Vietnamese law in
comparisons with the law of some countries in the world.
Fourthly, the thesis will propose more solutions to improve
the effectiveness of law enforcement on representation of the
involved parties in civil procedures.
1.3. Theoretical basis
1.3.1. The theories studied
*The theory of representatives: Jensen and Meckling (1976)
in "The theory of companies: management behavior, agent costs and
ownership structure" introduced their views on representative theory.
This theory may also apply to the study of litigants' representatives in
civil proceedings. The reason is that, in civil procedures, in order to
protect their legitimate rights and interests, litigants often perform
their rights and obligations by themselves. However, in some cases,
other persons may participate in the proceedings and exercise the
rights and obligations of the litigants in order to protect their legal
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rights and interests. Participants in this civil procedure are called their
representatives.
*Theory of ensuring human rights in legal
proceedings: Ensuring human rights and civil rights is creating
political, economic, social, legal and organizational prerequisites and
conditions so that individuals, citizens and organizations can exercise
their legitimate rights and interests recognized by law.
*Theory of assuring the principle of litigation in civil
procedures: In civil procedures, the principle of litigation is
guaranteed for the litigants, the litigants’ representative, people
protecting legitimate rights and interests of the involved parties to
exercise the right to litigate from beginning to the end of a case
through first-instance, appellate, cassation or reopening trial.
1.3.2. Research questions and hypotheses
The first question: How is the concept, characteristics and
role of the representative of the person involved in civil proceedings
understood? How is the theoretical model and legal content of the
representative of the person involved in civil proceedings explained
and interpreted?
Research hypothesis: it is necessary to conduct research in
order to consistently clarify the concept of the litigant's representative
in civil procedures. From the concept of the representative of the
involved party in civil procedures, the characteristics of the
representative, classification of the representative, and the role of the
representative of the litigant in the proceedings must be indicated.
The second question: How is the current situation of
Vietnamese law on the representation of the litigants in civil
proceedings? Through practical implementation of legal provisions
on this issue, what are the limitations and obstacles?
Research hypotheses: Through trying practice, the provisions
on litigant's representative in civil procedures reveal some
inadequacies and difficulties, leading to the ineffectiveness of
proceeding activities.
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The third question: How are the recommendations and
solutions to improve the law, as well as improve the effectiveness of
the implementation of the law on the representation of the litigant in
current civil procedures in Vietnam found?
Research hypothesis: To improve the law’s provisions as
well as improve the effectiveness of applying the law on
representative of litigant in civil proceedings, it is necessary to
consider based on the main viewpoints and to meet the requirements
of social life practice, from which to set forth goals and appropriate
solutions to make amendments to the law on representatives of the
involved parties in civil procedures in the future.
1.3.4. Research approach
Representative of litigant in civil proceedings is a subject
participating in civil procedures. However, within the scope of a
research in law, clarifying the content and the role of this subject is
only a premise to studying and completing legal provisions on
representative of the involved parties in civil procedures.
Conclusion of chapter 1.
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Chapter 2
THEORETICAL ISSUES ABOUT LITIGANT'S
REPRESENTATION IN CIVIL PROCEDURES
2.1. Overview of theory about the litigant's representative
in civil procedures
2.1.1. The concept of litigants in civil proceedings and the
concept of representation
2.1.1.1. Concept of litigants in civil procedures
The litigants in civil proceedings are individuals, legal
entities or other entities with interests in dispute or need to be
identified participating in the process of resolving civil cases to
protect their legitimate rights and interests.
2.1.1.2. The concept of representation
Representation is the establishment, implementation of a
legal act by a person, agency or organization within the scope of its
representation competence. A representative is a person who, on
behalf of and for the benefit of another person, enters into and
performs transactions within the scope of representation authorized.
2.1.2. The concept of the representative of the involved
party in civil proceedings
The representative of litigant in civil proceedings is the
person who takes part in civil procedures on behalf of him/ her, and
exercises rights and obligations to protect his/her lawful rights and
interests in civil procedures.
2.1.3. Characteristics of the litigant's representatives in civil
procedures
- Representative is an organization or individual with full
civil procedure legal capacity.
- Representatives participating in the procedural relations on
the basis of their representation and exercising rights and obligations
on behalf of the litigants.
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- The rights and obligations of the representative depend on
the rights and obligations of the involved parties and the nature of the
representative relationship.
2.1.4. Classification of involved parties' representatives in
civil procedures
Based on the will of the subject, representatives are divided
into two categories:
- Proxy representative;
- Legal representative.
2.1.5. Roles of representatives of litigants in civil
procedures
First, the representative acting on the litigant’s behalf
exercises the rights and obligations which the litigant should have
performed by himself, thereby protecting the involved parties'
legitimate rights and interests.
Second, the representative helps the proceeding authorities
connect with the litigants in a convenient, effective way to find the
truth in civil cases.
2.2. Generalizing legal arguments about litigants'
representatives in civil procedures
2.2.1. Concepts and legal characteristics of the involved
parties' representatives in civil procedures
Firstly, the development of legal provisions on litigants
'representatives in civil procedures is conducted on the basis of the
principle of the parties' right to self-determination.
Secondly, the development of legal provisions on litigants'
representatives in civil proceedings is conducted on the basis of
ensuring the right to participate in the litigation in the Court to
protect the rights and interests of the litigants.
Thirdly, the development of legal provisions on the litigant's
representation in civil procedures is conducted on the basis of
ensuring the connection between the Civil Code and the Civil
Procedure Code in stipulating about representation.
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Fourthly, the development of legal provisions on the litigant's
representation in civil proceedings comes from the requirements of
procedural practice in Courts.
2.2.2. Basic contents of law on the representatives of the
involved parties in civil procedures
First, the provisions on requirements to become litigant's
representatives in civil procedures
Second, the provisions on the basis for establishing
representation. Establishment of authorized representatives means the
involved parties and their representatives enter into authorization
transactions; Establishment of legal representative is the case in
which it is obliged to have a representative of the involved party and
the representative is prescribed in law.
Third, the provisions on the term of representation and scope
of representation.
Fourth, the provisions on the rights and obligations of the
person representing the litigants in civil procedures.
Fifth, the provisions on termination of representation in civil
procedures.
Conclusion of chapter 2.
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Chapter 3
REALITY OF LAW ON LITIGANT'S REPRESENTATION IN
CIVIL PROCEDURES AND LAW APPLICATION INVIET
NAM TODAY
3.1. Reality of legal provisions on representative of the
litigant in civil proceedings in Vietnam today
3.1.1. Conditions to become a representative of the litigant
First, identify the representative of the litigant in civil
proceedings
Article 85 of the CPC 2015 regulates: “The representative in
civil procedures includes the legal representative and authorized
representative” and refers to the provisions of the Civil Code: “The
representative may be an individual, legal entity according to the
Civil Code”; "The legal representative as prescribed in the Civil Code
is the legal representative in civil procedures, except for the case
where the legal representative right is restricted" and "The authorized
representative under provisions of the Civil Code are authorized
representatives in civil procedures”.
Second, the subjective capacity of the person representing
the litigant
The 2015 CPC does not specify conditions on the subject
capacity of the representative but referred to the 2015 Civil Code.
Clause 3, Article 134 of the 2015 Civil Code is prescribed as follows:
“The representative, if required by law, must have legal personality
and/or legal capacity in accordance with the transactions that he/she
enters into and performs”. For representatives being legal entities,
they must have civil procedure legal personality and capacity.
Third, people who are not allowed to be representatives
3.1.2. Basis for establishment of representation of the
involved parties in civil procedures
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First, legal representatives of natural persons:
- The father and/or mother with respect to a minor (under
18). This is regulated by clause 1 Article 136 Civil Code 2015 and
Article 69 CPC 2015.
- The guardian with respect to a ward, in which the ward is a
minor who has no father or mother or has no father or mother
identified; minors having fathers or mothers but lost their legal
capacity; fathers and mothers have difficulties in cognition and
behavior control; both parents have limited legal capacity
- The guardian of a person with limited cognition and
behavior control is a legal representative if appointed by a court.
- The person appointed by a court with respect to a person
with limited legal capacity
- The person appointed by a court in case where it is not able
to determine the representative to be the father or the other regarding
minor.
Second, legal representatives of juridical persons
For non-commercial legal entities, the person who is
competent to be the representative is prescribed by law. A competent
authority decide to appoint the head of a legal entity to be the legal
representative of the legal entity.
Third, the authorized representative of litigant in civil
proceedings
Fourth, appointing representatives in civil procedures
3.1.3. Term of representation and scope of representation in
civil procedures
Firstly, regarding the term of representation: the CPC 2015
does not state a time limit for representation, therfore, according to
the general principle, the term of representation in civil procedures is
in accordance with the provisions of the Civil Code. However, it can
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also be understood that the litigant's legal representative must
perform all of the involved parties' procedural rights and obligations
until the civil cases are solved.
Secondly, regarding the scope of representation: The scope
of representation is determined according to the reference from
Article 85 of the CPC 2015 to Article 141 of the Civil Code 2015.
3.1.4. Rights and obligations of representatives
Firstly, the rights and obligations of the legal representative
in civil procedures. The legal representative in civil procedures shall
exercise his/her civil procedural rights and obligations within the
scope of his/her representation (Article 86 of the CPC 2015).
Second, the rights and obligations of the authorized
representative in civil procedures: In this case, the representative of
the involved party takes part in the proceedings to protect the rights
of the litigant who is legally capabled. The litigants themselves can
also exercise their procedural rights and obligations. Therefore, the
litigant's authorized representative shall only perform his/her
procedural rights and obligations within the scope of authorization.
Clause 2, Article 86 of the CPC 2015 states: “The authorized
representative in civil procedures shall exercise his/her civil
procedural rights and obligations according to the contents of the
authorization document”.
3.1.5. Termination of representation in civil procedures
Firstly, the provisions on termination of representation: the
CPC 2015 did not specifically stipulate the termination of the status
of the representative, but referred to the provisions of the Civil Code:
“The representatives at law, the proxy representatives in civil
procedures shall terminate their representation according to the
provisions of the Civil Code". According to the provisions of Clauses
3 and 4, Article 140 of the Civil Code 2015, the termination of
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representation is considered in two cases, corresponding to two forms
of representation: termination of legal representation and termination
of authorized representation.
Secondly, about the legal consequences of the termination of
representation: In cases where the proxy representation terminates,
the involved parties or their heirs shall participate in civil procedures
in person or authorize other persons to participate in the procedures
according to the procedures prescribed by CPC.
3.2. Law on representative of the involved parties in civil
procedures applying practice
3.2.1. The implementation of the provisions on conditions
to become a representative
Shortcoming in authorizing in divorce cases: Clause 4,
Article 85 of the CPC 2015 provides that in divorce cases, parties
cannot authorize other people to participate in the proceedings on
their behalf.
3.2.2. The implementation of regulations on the
establishment of representation
First, determining the representative in case a branch or
representative office of the enterprise participates in the proceedings
Second, determining the representative in case the private
enterprise’s owner participates in the proceedings
Third, determining the representative in the event that the
partriarch participates in the proceedings regarding the family’s
assets
Fourth, determining the representative in the case of
households
Fifth, authorization to different people makes it difficult for the Court
to resolve the case
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3.2.3. The implementation of the provisions on the term and
scope of representation
Firstly, regarding term of representation
Secondly, the unclear content, scope of authorization make it
difficult for the Court to solve cases.
Thirdly, the representative exceeds the scope of authorization
and handling the consequences of exceeding the scope of
authorization
3.2.4. The implementation of regulations on rights and
obligations of representatives
3.2.5. The implementation of the provisions on termination
of representation
3.2.6. A few comments, reviews on limitations, inadequacies
and their causes
Conclusion of chapter 3
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