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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 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 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 of the Civil Procedure Code, amended in 2011 and Article 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 / 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 CPC, provisions on the principle of equality on the rights and obligations in civil procedures are provided in Article 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 of the CPC in 2015 stipulates the principle of equality on the rights and obligations in civil procedures as compared to Article 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 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 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 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 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 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 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 and Chapter 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 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 - 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 and 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 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 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 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 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 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 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 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 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 + 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 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, 10 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 11 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 12 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 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 13 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 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 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 cases; Correction of the verdict due to due to subjective errors for 16 cases; Cancellation of the verdict due to subjective errors for cases, cancellation of the verdict due to objective errors for cases; excess of the time limit with 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 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 16 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 17 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 of the Universal Declaration of Human Rights 1948 states: “Everyone has the right to be recognized as a human before the law everywhere.” Article 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, 18 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 and 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 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 19 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 21 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 23 THE RESEARCH WORKS RELATED TO THESIS THAT HAS BEEN ANNOUNCED BY THE AUTHOR The article “The principle of equality before the law of the litigants in civil procedure law through stages” (Journal of State Management of the National Academy of Public Administration, No 223, August 2014) The article “On the concept of equality before the law of the litigants in civil proceedings” (Journal of Human Resources-Social Sciences, Graduate Academy of Social Sciences, No 19, December 2014) 24 ... 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... 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... development of the Vietnamese legal system That has been reflected in the documentations of the 1 Party Congress, the resolutions of the Politburo aimed at "Building a clean, strong, strict, democratic