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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HA NOI LAW UNIVERSITY NGUYEN THI HUONG INSTITUTION AND ACCEPTANCE OF CIVIL LAWSUIT THEORETICAL AND PRACTICAL ISSUES Major : Civil and Civil Procedure Law Code : 38 01 03 Summary of Doctoral thesis on law noi - 2019 The work has been completed at Ha Noi Law University Scientific Instructors: Assoc Dr Bui Thi Huyen Dr Le Thi Ha Reviewer 1: Assoc Dr Nguyen Minh Hang Reviewer 2: Dr Hoang Ngoc Thinh Reviewer 3: Dr Nguyen Hai An The Thesis was defended at the Doctoral Thesis Evaluation Council at University level, meeting at Ha Noi Law University At , on date: , month: , 2019 The Thesis can be found at National Library of Vietnam and Library of Ha Noi Law University INTRODUCTORY In the development of society, when the State and the law are established, the protection of citizens' legitimate rights and interests is recognized by law and ensured by the authorized organizations The right to sue by an organization or individual, therefore, has been stipulated by law and any subjects have the right to request the Court protect the rights and interests by suing if they assume that their legal rights and interests have been violated The civil lawsuit is recognized by the law as the first legal proceeding to protect the civil rights of the subjects with legal rights or interests being violated and their lawful representatives; it is also a legal basis for generating legal relations of civil procedure When the lawsuit petition of the subjects meets all conditions prescribed by law, the Court is responsible to accept the case In Vietnam, the issue of suing and accepting civil cases is stipulated in legal documents quite early and has increasingly been improved The Civil Procedure Code (CPC) in 2004 is a legal document that fully and systematically regulates the issues of civil procedures in general and the regulation of initiating and accepting civil cases in particular CPC has added shortcomings, overcome the inadequacies and irrationalities of initiating lawsuits and accepting civil cases in the Ordinance on procedures for settling civil cases, the Ordinance on Procedures for Settlement Economic case, Ordinance on procedures for settling labor disputes At the same time, the provisions on initiating and accepting civil cases in the CPC have institutionalized the views and guidelines on judicial reform recorded in Party documents such as the National Congress Congress Resolution Ninth Party, Resolution 08-NQ / TW of January 2, 2002 of the Politburo on some key tasks of judicial work in the coming time However, after years of implementing the CPC, the regulations on initiating and accepting civil cases still reveal limitations and shortcomings The 12th National Assembly issued Law No 65/2011 / QH12 March 29, 2011, amending and supplementing a number of articles of the CPC in 2004, including amendments and supplements to the regulations on initiating and accepting civil cases (hereinafter referred to as CPC 2011) Some provisions of acceptance civil cases in CPC 2011 not meet the requirements of practice as well as guarantee human rights and civil rights Practicing proceedings at the Court witnesses many civil cases being handled for a long time, the parties in the case had to spend a lot of time, effort and money to follow the lawsuit but then receive a decision to suspend the settlement of the case and return the petition There are even cases that have passed many levels of trial as Fristinstance trials, Appellate trials and Cassation procedure but then the Court ruled to suspend the settlement of the case and return the petition because the grounds for accepting the case were incorrect Recognizing the limitations and shortcomings in CPC provisions, on November 25, 2015, the Parliament of the Socialist Republic of Vietnam adopted the CPC in 2015, enter into force from July 1, 2016 However, CPC 2015 only solved part of the problems in practice to apply the regulations on initiating and accepting civil cases and there are also regulations that are not suitable with the reasoning, failing to meet the requirements of practical, there are unclear and transparent regulations leading to many ways to understand and apply inconsistently Practically, the law on lawsuits and the handling of civil cases still has many shortcomings and limitations There is a Court returning the petition in contravention of regulations, accepting the case wrongly, slowly considering and accepting the petition, embarrassing in considering the conditions for accepting civil cases The role of the defenders of legal rights and interests of the litigants is in fact limited and sometimes not respected Some Procurators have not really paid attention to the inspection of activities to return the petition and accept the civil cases of the Court In this situation, the comprehensive and profound study of the provisions of the 2015 CPC on institution and accepting civil cases to identify the results, limitations and shortcomings of the law as well as shortcomings, limitations and obstacles in practical implementation, thereby making recommendations to further improve the legal provisions as well as proposing solutions to ensure lawsuit initiation and acceptance of civil cases is an urgent requirement in the current period Moreover, the study of the topic "Institution and Acceptance of civil lawsuit - Theoretical and practical issues" also to protect the maximum human rights recorded in the Constitution 2013, to meet one of the judicial reform tasks set out in the Politburo Resolution No 08-NQ/TW of January 2, 2002 on a number of key tasks of judicial work in the coming time: "At trial, the courts must ensure that all citizens are equal before the law, truly democratic and fair Judges, jurors have to be independent and only obey the law The judgment of the Court must be based primarily on the results of the proceedings at the trial, on the basis of full and comprehensive consideration of the evidence on the opinion of the prosecutor the plaintiff, the defendant and those with legitimate rights and interests " and Resolution No 49-NQ / TW dated June 2, 2005 on the Judicial reform strategy to 2020: "Continue to improve civil procedure procedures ; ensure uniformity and democracy, publicity, transparency, respect and protection of human rights " New contributions of the thesis The thesis is a relatively comprehensive and systematic scientific research project on initiating and accepting civil cases in civil proceedings The outstanding new contributions of the thesis are shown in the following contents: Firstly, the thesis has clarified some very basic and important theoretical issues about initiating and accepting civil cases in civil proceedings, especially the concept of right to sue, sue, accepting civil cases; typical characteristics of suing, accepting civil cases, the scientific basis of lawmaking and initiating civil cases, factors affecting the lawsuit initiation and the civil case, the basic contents of the civil procedure law on initiating lawsuits and accepting civil cases Clarifying these theoretical issues will be the ground for approaching the provisions of the current civil procedure legislation on initiating lawsuits and accepting civil cases, which is the orientation for proposing to improve the law on initiating lawsuits and accepting civil cases Secondly, the thesis analyzes and evaluates comprehensively the current status of Vietnamese civil procedural laws on initiating lawsuits and accepting civil cases and practical implementation in recent years, pointing out limitations and shortcomings in the provisions of the civil procedure legislation, shortcomings and problems in the real process, present this provision in practice of resolving civil cases in Court Thirdly, the dissertation proposes to amend and supplement some provisions of the CPC on initiating lawsuits and accepting cases to complete Vietnam's civil procedure legislation on this issue, thereby contributing to ensuring human rights, the right to access justice of the citizens, improve the efficiency of initiating lawsuits and accept civil cases in practice, such as supplementing the provisions of the law on conditions to sue, conditions for accepting civil cases and supplementing regulations on class actions, supplementing the provisions on the right to present directly request to sue at the Court; amending regulations on authority according to the type of Court matter; amending regulations on limitation periods for making counterclaims, independent requests These recommendations are made on the basis of science and practice, in line with the Party's guidelines and guidelines on judicial reform and building a socialist Vietnamese rule-of-law state as well as meeting Vietnam's international economic integration requirements Fourthly, the thesis proposes a number of recommendations to ensure the initiation of lawsuits and the acceptance of civil cases such as: Supplementing annual reports and statistics on returning the lawsuits of courts at all levels; publicity and transparency in procedural activities to consider and accept lawsuits; promote the role of the Procuracy in receiving and processing petitions; consolidate and build a team of lawyers; promote propaganda and dissemination of legal education on lawsuit initiation and acceptance of civil cases Kết cấu luận án Besides the introduction, an overview of the research on issues related to the thesis topic, conclusions and references list, the content of the thesis consists of chapters: Chapter 1: Theoretical issues on lawsuit initiation and acceptance of civil cases Chapter 2: Current situation of civil procedure law on initiation, acceptance of civil cases and implementation practices Chapter 3: Necessities, proposals on perfecting laws and solutions to initiate lawsuits and accept civil cases OVERVIEW OF THE RELEVANT RESEARCHES AND LITERATURES Lawsuit initiation and acceptation of civil cases is one of the important contents of the civil procedure legislation Therefore, there are many scientific researches about this issue, such as: Thesis, dissertations, books, articles, magazines Through research on scientific works related to the thesis topic, it can be seen that these works refer to different aspects or basic issues of lawsuit initiation and accepting civil cases but no work has mentioned comprehensively from the theoretical issues to the actual situation of law and practice to initiate lawsuits and accept civil cases, especially in the context of the 2013 Constitution recognized and prescribes principles to ensure the exercise of citizens' basic civil rights; clearly defining the functions and tasks of protecting the justice and human rights of the People's Court (People's Court) Concretizing the 2013 Constitution, the CPC 2015 passed by the XIII Parliament at the 10th session on November 25, 2015 has a lot of new contents to initiate and accept civil cases towards promoting human rights and rights citizens, the right to access justice and enhance the role and responsibilities of the Court in the judicial system; A number of provisions in the Civil Code (2005) relating to the issue of lawsuits and handling of cases have also been revised and supplemented in the Civil Code 2015, so it is necessary to continue researching comprehensively Therefore, the study of the thesis will ensure newness compared to previous research projects Chapter THEORETICAL ISSUES ON LAWSUIT INITIATION AND ACCEPTANCE OF CIVIL CASES 1.1 Concept, characteristics and meaning of Initiation of lawsuit 1.1.1 Concept of initiation of civil case In the process of people exchanging benefits with each other, the occurrence of disputes, conflict can be seen as a rule of life When a civil dispute arises, the parties have the right to protect their rights and interests in accordance with the provisions of law, in which lawsuits are filed against a competent court for settlement Dispute is an effective method The initiation of a civil lawsuit is the exercise of the right to initiate a civil lawsuit that the law provides for subjects when civil rights and interests are violated or disputed Therefore, before studying the concept of suing civil cases, it is necessary to clarify the concept of the right to sue civil cases Through the study of the laws of the countries and the views of the scientists, the PhD student introduced the concept of the right to sue civil cases as follows: The right to sue a civil case is a legal right recognized in laws, whereby individuals, organizations and other entities within their jurisdiction have the right to decide on their own to request the Court to have the right to protect their legitimate rights and interests, and the interests of people other or public interests or interests of the State when it is said that such legitimate rights and interests are violated or disputed In legal science, suing civil cases can be understood under different perspectives, but as the scope of the research topic, in this thesis, PhD student studies the lawsuit of civil cases under two angles: suing is an overall law of civil procedure law on initiating a civil lawsuit and a legal action is a procedural activity Firstly, under the perspective of the provisions of the law on civil proceedings, initiating lawsuits in Vietnamese civil proceedings is the overall legal regulations governing relations arising in the process of the subject implementing the initiation a civil case at a court to request the protection of legitimate rights and interests that are infringed or in dispute Secondly, under the perspective of a procedural activity, initiating a civil case is an act that an individual or an organization with full civil rights and legal status or other subjects in accordance with the law request the Court to resolve civil disputes according to civil proceedings in order to protect their legitimate rights and interests, other people's interests or the interests of the State and public interests According to the above research results, the nature of the initiating a lawsuit is the request of litigants for the Court to protect their rights when they are disputed or violated From this perspective, the concept of suing civil cases should be understood in both narrow and broad sense - In the narrow sense, initiating a lawsuit is the plaintiff's request for the Court to protect the rights when there are disputes and violations - In a broad sense, initiating a lawsuit includes both the plaintiff initiating a lawsuit asking the Court to protect legitimate rights and interests and the defendant making a counterclaim, requesting independence and relevant persons with rights and obligations requests independently Thus, it can be seen that the concept of "initiation of civil lawsuit " refers to the concept of filing a civil lawsuit in a broad sense, including suing, counterclaims and independent claims 1.1.2 Characteristics of suing civil cases Initiating a civil lawsuit has some following basic characteristics: - Initiating a civil lawsuit is a request for a Court to protect legitimate rights and interests that are infringed upon or have a dispute - Initiating a civil lawsuit is that individuals and organizations have legitimate rights and interests or other subjects according to the law to exercise their self-determination rights, in which the parties are free to decide in protecting your rights - Initiating a civil lawsuit is an activity granted by the subjects with the right or by the law to comply with the provisions of the content law and procedural law in order to protect their own private interests, other or interests of the State, public interests - In the Vietnamese civil procedural law, the suing of a civil case may only be requested by the Court to resolve disputes under its jurisdiction according to the type of Court action 1.1.3 The meaning of initiating civil cases Initiating a civil case plays an important political, economic and social significance First of all, suing is a method of timely protection of civil rights and interests on the basis of the right of self-determination of subjects, meeting the requirements of building the socialist rule-of-law state of the people Initiating a civil case is the realization of the realization of human rights and civil rights in civil proceedings contributing to ensuring social justice and strengthening people's belief in trial activities of the Court in the task of protecting justice, protecting human rights, civil rights, protecting the socialist regime, protecting the interests of the State, the legitimate rights and interests of organizations and individuals, and implementing democracy in civil proceedings On the other hand, initiating a civil lawsuit contributes to raising the sense of respect for the law, respecting the legal civil rights of the people, creating conditions for strengthening social security and the legislation of Socialist In addition, the recognition of the provisions on litigation of civil cases also contributes to ensuring fairness and equality for the involved parties when participating in civil law relations In addition, through initiating a civil lawsuit, the law also demonstrates the education, prevention and prevention of acts of infringing upon the rights and legitimate interests of citizens Regulations on initiating lawsuits and the right to sue civil cases contribute to protecting legitimate interests in civil law relations and promoting socio-economic development In legal aspect, suing civil cases is a legal basis for the parties to have adequate means to protect their legitimate rights and interests Initiating a civil lawsuit is also an important first step for the Court to conduct other proceedings to protect the legal rights and interests of the litigants, which is the basis for the Court to enforce public protection rights, protect the stability of social relations 1.2 Concept, characteristics, meaning of the accepting civil cases 1.2.1 Concept of accepting civil cases The legal rights and interests of subjects are human rights issues that are of great concern to countries in the world and recorded in the laws of each country However, if the law only recognizes the rights and interests of the subjects is incomplete, the most important and fundamental thing is to establish a mechanism to implement and protect them in case of infringement One of those mechanisms is the Court's responsibility to receive and resolve the litigant's petition, or acceptance of civil cases (i) From the perspective of the regulations on civil procedure law, acceptance of civil proceedings in Vietnam is the overall legal regulations governing relations arising in the process of receiving and considering the Court and handle the petition and enter the civil case handbook to resolve (ii) From the perspective of being a Court activity, the handling of a civil case is the way in which the Court has the authority to conduct activities of receiving, considering and handling the petition and accepting responsibility for settlement civil cases to protect the legitimate rights and interests of individuals, organizations and public interests and State interests 1.2.2 Characteristics of accepting civil cases Civil case handling has basic characteristics such as: - Accepting civil cases is the guarantee of citizens' access to justice - Civil case handling is the first activity of the civil procedure to confirm the Court's responsibility to resolve civil cases - Civil case handling is an activity carried out by a competent court - The basis for receiving a civil case is based on the claim of the subject with the right to sue - Civil case handling is a multi-step proceeding that results in a Court taking responsibility for resolving a civil case it is shown that many of the procedural law of countries not have specific provisions on conditions for accepting civil cases However, through the provisions on competence and court fees, the Court only accepted the civil case when the lawsuit filed met the conditions for suing, the petition form, and the lawsuit was also must comply with the authority at the level, territory and the petitioner must pay the advance fee Conditions for accepting a civil case are the conditions stipulated by the Procedural Law for the Court to issue a decision to accept the case to consider and resolve a civil lawsuit petition of an individual or organization 1.5.2 The content of legal provisions on the scope of initiating civil cases The scope for suing civil cases is interpreted as limiting the issues raised in a civil case Usually, in the case of a person suing a person on a dispute law relationship, there will not be a question of considering the scope of the lawsuit However, for a person who sues a person about many different legal relations or many people sue one or more people about different legal relations, if these requirements are related 1.5.3 The content of legal provisions on content, form of petition and method of filing petition for civil lawsuit Through research in many countries, it is shown that there are countries that regulate the form of petition but there is also no regulation Depending on the laws of each country, there are forms and methods to initiate a lawsuit such as: filing a lawsuit petition in court, sending a lawsuit petition by post, the petitioner also presents directly to the Court sue, through sending service papers to the court, electronic means The contents of the petition, there are specific countries that not specify but some countries require the petition must contain the following contents: Full name, residence address and address of service documents for the plaintiff; the name of the defendant's address; full name and address of the person with related rights and obligations (if any) of the content of the dispute; Specific claim of the plaintiff If the plaintiff has a lawyer, it must specify the name of the lawyer, the name and address of the law firm to which the lawyer works The petition must clearly state the evidence that the plaintiff is used as a basis for taking action The following documents must be attached to the petition: (i) written authorization to the lawyer; (ii) written evidence 11 1.5.4 Contents of legal provisions on procedures for accepting civil cases (checking conditions for initiating lawsuits) The laws of the countries in the world regulating the procedures for accepting civil cases are different But in general, after the Court receives the petition, it must check and consider the contents of the petition, if it finds that there is a lack of necessary information, the applicant must amend the application within a time limit certain If the request has been made but the applicant still does not amend or supplement, the Court will return the petition In addition, in the process of considering and processing a petition, if the petition in one of the bases returns the petition filed by law, the Court will issue a notice to return the petition; If the petition finds that the petition does not fall under the jurisdiction of the Court but falls under the jurisdiction of another Court, the Court receiving the petition will issue a notice to transfer the petition to the competent Court for settlement 1.5.5 The content of legal provisions on complaints, petitions and settlement of complaints and petitions regarding the return of petitions In order to contribute to preventing the abuse of the Court's power, promote democracy in the Court's activities, on the other hand promote the supervision of citizens and People's Procuracy at the same level in the activities on behalf of State of the Court, one of the methods to protect fairness, equality of rights and interests of the parties and the laws of the countries stipulating the right to complain and procedures for complaint and complaint settlement of the litigant and the petition, if any, of the Procuracy for the return of the petition of the Court However, some countries (Japan) allow the litigants to appeal against the refusal to accept the Court's case 1.5.6 The contents of legal provisions on procedures for entering the acceptance book and notifying the acceptance of civil cases When the litigant's petitioner satisfies all conditions for acceptance, does not belong to one of the cases of returning the petition, the petition must be responsible for accepting the civil case to resolve according to the order and civil procedure Depending on the laws of each country, the acceptance may be made by entering the register or the Judge must issue a decision to accept the civil case On the basis of the decision to accept the civil case, the Chief Justice of the people's court will issue a decision to assign the Judge to settle the case and notify the case 12 Chapter CURRENT SITUATION OF CIVIL PROCEDURE LAW ON INITIATION, ACCEPTANCE OF CIVIL CASES AND IMPLEMENTION PRATICES 2.1 Current status of Vietnamese civil procedure law on initiation of civil cases 2.1.1 Actual situation of law on conditions to initiating civil cases - The provisions of the CPC 2015 on the subject to sue civil cases also reveal the basic limitations such as: There are no specific regulations for the petition of the family; regulations on lawsuits of trade unions for social insurance debts are unclear and limited and inadequate; regulations on the initiation of civil lawsuits by agencies and organizations to protect public interests and State interests are not really effective in practice; prescribing that the defendant's counterclaim is unclear and there is inconsistency between laws; prescribing the defendant's time limit for making counterclaims, the independent requirement of persons with related rights and obligations still entangles and is inadequate and has not really guaranteed the rights of the involved parties - The provisions of the 2015 CPC on competence according to the type of Court matter are relatively adequate and strict, but because these regulations are listed, some civil disputes may be omitted as a dispute to protect consumers' rights To complement the regulation of the type of work listed, CPC has added a rule "The Court must not refuse to resolve a civil case for reasons of not having the law to apply." However, due to the lack of specific guidelines, practical application is difficult - Regarding conditions of the unresolved incident by judgments and decisions with legal effect However, the Supreme Court's guidelines on lawsuits against inherited property disputes are required to initiate a lawsuit because the time limit to take action has not yet been appropriately This made difficult for the lower courts Through analysis and assessment of the legal status of conditions for initiating lawsuits, the PhD student found that the current Vietnamese civil procedural law does not have a specific law regulating what is the conditions for initiating lawsuits The ambiguity of the conditions for initiating a lawsuit 13 makes it difficult for the lawsuit subject to request the Court to resolve disputes as well as inconsistency in practice applied at the Courts 2.1.2 Actual situation of law on the scope of suing civil cases Compared to the provisions on the scope of lawsuits in CPC 2011, the provisions on the scope of lawsuits in CPC 2015 are basically preserved However, through research shows, there are still some problems such as: there is no specific regulation on "resolving beyond the scope of lawsuits" and "resolving incompletely the case"; obstacles in determining how many relevant legal relations need to be resolved in the marriage and family dispute 2.1.3 The legal status of forms and contents of petitions and methods to initiate civil cases - Regarding the form and content of the petition and document of evidence attached to the petition Through the study, it is shown that the provisions of the civil procedure law on petitions and evidence documents are accompanied by a relatively specific and detailed petition, facilitating the petitioner to approach the Court In a simple and convenient way, there are many similarities with the lawsuit petition in some CPC However, through research, the researcher has found some problems, shortcomings and inconsistencies as follows: Firstly, there are inconsistencies and inadequacies in the regulation that the petitioner must directly sign the petition as stipulated in Point a, Clause 1, Article 189 of the CPC 2015 This provision is in conflict with the lawsuit petitioner Direct signing on the end of the application is not consistent with the law of the representative and makes it difficult for the litigants to authorize others to conduct all their procedural actions Secondly, when initiating a lawsuit, the petitioner may submit existing documents and evidence according to Item of Article 189 of the CPC in 2015 However, there are no specific instructions on what is "available" evidence and documents This leads to different understandings Thirdly, the current civil procedure legislation has not yet recorded the plaintiff's direct appeal to the Court, presenting the content of the lawsuit is not ensuring the maximum right to initiate lawsuits of citizens and is not compatible with world law - The method of filing a petition to the Court Article 190 of the CPC 2015 adds the method of online filing of electronic claims via the electronic portal of the Court (if any) This is a new 14 regulation in line with the trend of strengthening the application of information technology in civil proceedings in the world However, the practical application is still conservative because the level of people and facilities of the Court is limited In addition, the regulation on filing petition is lacking in connection with the regulations on the obligation to send a copy of the petition and documents and evidence attached to the petition to the other litigants defined in Clause 9, Article 70 of this Code 2.2 Current status of Vietnamese civil procedure legislation on the acceptance of civil cases 2.2.1 Current status of Vietnamese civil procedure legislation on conditions for acceptance of civil cases The Vietnam Civil Procedure Law does not have specific provisions on conditions for accepting civil cases, so the status of legal provisions on the acceptance of civil cases will be analyzed and explained on bases of bases return the petition filed in Article 192 of the CPC In addition, in order to meeting the conditions for suing civil cases, conditions for the form of petitions, the acceptance of civil cases must also meet the following conditions: - Regarding the jurisdictional conditions at the level and according to the territory of the Court: In addition to the specific and relatively reasonable provisions, the level and territorial authority provisions of the Court still have some limitations and shortcomings such as: stipulating the jurisdiction of the Court to decide the fish Particularly, agencies, organizations and competent persons are not really compatible with the principle of independent trial of the Court and overload in the handling and settlement of civil cases of the provincial People's Courts Regulations on territorial jurisdiction of the Court have been unclear in determining the residence of individuals and are not compatible with the provisions of the Civil Code 2015 and the Residence Law 2006 (amended and supplemented) 2013) Besides, the determination of the jurisdiction of the Court for common road disputes, disputes on opening aisles through adjacent real estate, water drainage disputes has not been specifically instructed to be unavailable uniform application between courts In addition, the determination of territorial jurisdiction of the Court when resolving inheritance disputes is where the real estate or the place where the inheritance is opened has not been clearly instructed 15 - Conditions for advance payment of court fees: Through the research, the provisions on the payment of court fee advances in CPC 2015 are relatively complete 2.2.2 Current situation of Vietnamese civil procedure legislation on procedures for acceptance of civil cases (receiving and handling petitions) Procedures for accepting civil cases, which are regulated in the CPC 2015 are quite specific, but there are still some limitations and shortcomings as follows: - Some grounds for returning unreasonable lawsuits such as grounds for incomplete conditions to initiate lawsuits according to the provisions of law, based on unresolved matters with effective judgments and decisions, the grounds of the petitioner not modify or supplement the petition application at the request of the Judge and are not specifically instructed causing difficulties for the practical application 2.2.3 Actual status of Vietnam's civil procedural law on complaints and petitions about returning the petition and resolving complaints and petitions about returning the petition Basically, the provisions of the CPC 2015 have ensured the right to complain and petition about returning the petition and resolving complaints and petitions about returning the petition, however, through the research shows that there are still some limitations and shortcomings as follows: First, in terms of supervise the compliance with the law of the People's Procuracy of the same level for the return of the petition of the Court: If the Procuracy only receives the notice to return the petition, the procurator cannot analyze and assess whether the return of the petition of the Court is accurate, legal grounds or not, so the inspection the return of the petition is only formal, difficult to implement in practice Secondly, in terms of the meeting to resolve complaints and petitions: The meeting to settle complaints and doubts is a new provision supplemented in the CPC 2015, contributing to improving the role of judicial activity monitoring and supervising the applications of the Procuracy close to the same level for the Court; and at the same time, ensure the right to participate in litigation activities at the petitioner's initiating stage as well as to ensure the transparency of the settlement of complaints and petitions regarding the return of lawsuits However, the law does not stipulate the form of opening a meeting which leads to many different interpretations 16 Third, in terms of the participants in the meeting to resolve complaints and petitions: Article 194 CPC does not stipulate that the meeting must be attended by the Court Clerk who is assigned by the Chief Judge to record the proceedings of the meeting, leading to problems when applying 2.2.4 Current situation of current Vietnamese civil procedure legislation on procedures for entry of acceptance books and notices on acceptance of civil cases Firstly, about the procedure to register the case of the civil case There is inconsistency between Article 191 and Article 195 of the Code regarding the consideration of petitions and cases of cases, leading to confusion of judges when considering and accepting civil cases In addition, Article 191 of the CPC 2015 does not specify that the Judge must issue a decision to accept the matter or just record it in the case handbook For the procedure of recording in the acceptance book when accepting the counterclaim request, independent requirement is also a problem still in practice Currently, there is no guidance of the Supreme Court on recalculating the date of acceptance of the case when accepting the counterclaim request, requesting independence In addition, the CPC 2015 has no specific provisions on the case handbook like each type of separate case handbook for each type of dispute, the specific contents of the case handbook are not yet consistent well suited Secondly, on the notice of the civil case acceptance - The content of the notice of acceptance of civil cases According to Item of Article 196 of the CPC in 2015, the Court only announces the list of documents and evidence that the petitioner submits with the petition, many litigants not understand that they have the right to record and copy documents evidence Therefore, the content of the notice of accepting the case should supplement provisions to facilitate the defendant, the person with related obligations to understand the right to copy the petition and the documents and evidence submitted by the petitioner - The notice of acceptance for counterclaim request, independent request The 2015 Civil Procedure Code does not specify the issue of notifying additional cases and notifying the defendants' counter-claims, independent requests of persons with related rights and obligations should not guarantee the litigation rights of the litigants 17 2.3 Practice of initiating lawsuits and accepting civil cases in Vietnam 2.3.1 Some results have been achieved in the practice of initiating lawsuits and accepting civil cases in Vietnam The Civil Procedure Code 2015 has many specific provisions on taking legal action and accepting civil cases, on that basis, the courts have handled and resolved civil cases in a fair way, visitors lawful and legal The Courts have respected and created conditions for the litigants, their representatives and guardians to exercise their procedural rights and obligations, ensuring equal litigation in exercising their rights and obligations chant Agencies, organizations and individuals have coordinated and supported the Court quickly and on time That helps to well implement the litigation of civil cases of the litigants If the litigant initiates a lawsuit meeting the conditions for initiating a lawsuit and accepting a civil case according to regulations, the Court will accept it to settle it The number of civil cases handled by the Court at all levels is annually increased, reflecting the trust of the people in the Court The People's Procuracy at all levels supervises activities of resolving civil civil cases so that violations of the law are detected in the process of resolving civil cases, contributing to ensuring human rights Citizenship in civil proceedings Lawyers are trained in a systematic way, actively participating in protecting legitimate rights and interests for the litigants in civil cases 2.3.2 The shortcomings and limitations in practice to initiate lawsuits and accept civil cases in Vietnam and the causes Firstly, restrictions on the application of law on lawsuits and the handling of civil cases Specifically, typical problems such as: The determination of the subject of lawsuit against disputes involving households, cooperative groups or other organizations without legal status; the defendant's determination of counterclaim is unclear; The determination of what is "resolving beyond the scope, requesting a lawsuit" and "resolving the case is not thorough" requires the applicant to have a different judgment in the court's judgments and decisions judgment; The determination of the scope of settlement in the case of marriage and family disputes still faces difficulties; compulsory petitioner must sign an unreasonable petition; the determination of territorial jurisdiction of the Court is not clear; the specific and unclear guidance in the case of a lawsuit against the division of common property due to the expiry of the statute of limitations for initiating a lawsuit 18 on inheritance; the notification of acceptance of the defendant's counterclaim, the independent request of the person with related rights and obligations has not been specified Secondly, shortcomings and limitations arising from civil proceedings of officials and Court judges such as: Status of the Court delaying the handling of civil cases still take place, the Court's status does not complying with regulations on procedures for receiving a petition; The Court is late to send a notice of the civil case to the Procuracy of the same level, causing difficulties for the control of the acceptance of civil cases, the Court violates the time limit for resolving complaints of the litigants return the petition Thirdly, the shortcomings and limitations of the parties such as: Many cases due to the awareness and understanding of the law of the litigants about the conditions for initiating and accepting civil cases are limited, leading to the implementation of the litigants on their rights and obligations Fourthly, shortcomings and limitations from the activities of the legal rights and protection guardians for the litigants, especially lawyers, legal aid providers such as: The number of civil cases with participation of The person who defends the legal rights and interests of the litigants right from the time the litigant initiates the lawsuit is still low, sometimes, sometimes the role of the lawyer, legal aid has not been properly respected In addition, in many localities, there is still a shortage of professional lawyers, foreign language skills and information technology application skills are limited, some lawyers are passive and rarely participate at the Court Fifthly, the lack of cooperation between individuals, agencies and organizations keeping evidence, documents leads to difficulties for the litigants when carrying out lawsuits Sixthly, the shortcomings and limitations of the Procuracy's function of supervising initiating and accepting civil cases leads to the result of violations in returning some cases 2.3.3 Reasons of shortcomings and limitations in practical implementation of lawsuits and acceptance of civil cases in Vietnam The shortcomings and limitations in practice to initiate lawsuits and accept civil cases in Vietnam, first of all due to the limitations and shortcomings of the legal provisions These are the limitations and shortcomings, the lack of clarity and specificity of the regulations, not in line 19 with the arguments about initiating lawsuits and accepting civil cases, leading to obstacles and unanimity in practical implementation, the issuance of guiding documents is still slow compared to the practical requirements Besides, there are causes such as: The number of types of civil cases that the courts have to handle and continue to tend to increase with increasingly complex nature; the organization of courts has not really been consolidated, the number of staff and judges has not met the requirements compared with the structure, organization, apparatus, tasks and competence of the courts; knowledge and sense of law observance on lawsuit initiation and handling of civil cases of organizations and individuals is not high; limited capacity of information technology application in legal proceedings; the lack of responsibility and the coordination spirit of other relevant agencies and organizations in providing documents and evidence to the litigants to initiate lawsuits at courts Chapter NECESSITIES, PROPOSALS ON PERFECTING LAWS AND SOLUTIONS TO INITIATE AND ACCEPT CIVIL LAWSUITS 3.1 The necessity of completing and implementing laws on initiating and accepting civil cases in Vietnam The completion and implementation of the law on lawsuits and the handling of civil cases in Vietnam need to meet the requirements: Ensuring citizens' right to access justice and the State's responsibility to protect children people and citizenship; promptly institutionalize the Party's Resolution on the judicial reform strategy Overcoming the shortcomings of the current law on initiating lawsuits and accepting civil cases; overcome limitations arising in the process of applying the provisions of law on lawsuits and accepting civil cases 3.2 Proposing to improve the law on initiating and accepting civil cases in Vietnam 3.2.1 Proposals continue to improve the law on initiating lawsuits and accepting civil cases 3.2.1.1 Proposing to continue perfecting the law on initiating civil cases Firstly, it is necessary to amend Article 186, Article 187 of the CPC and other relevant laws in the direction of removing the phrase "agency" 20 Secondly, supplement regulations on authorized individuals to sue; Collective lawsuit mechanism for disputes related to the environment, consumer rights Thirdly, supplement the provisions of the Procuracy's right to sue civil cases to protect the interests of the State and the public interests Fourthly, amending and supplementing regulations related to the defendant's right to make requests; the right to independent request of persons with related rights and obligations to remedy inconsistencies between relevant laws in the CPC Amend the regulations on the time when the defendant, the person with related rights and obligations, is requested to make counter-claims and request independence Fifthly, supplementing regulations on direct rights to the Court to present the petition Sixthly, additional provisions on the obligation to send copies of petitions and attached documents and evidence; the time limit for sending and the consequences of the failure to send a copy of the petition and the documents and evidence to the defendant and other litigants 3.2.1.2 Proposing to continue perfecting the law on the handling of civil cases Firstly, supplement the provisions on conditions for accepting civil cases in CPC Secondly, amend and supplement regulations on jurisdiction of the Court Thirdly, amend some legal provisions related to the acceptance of civil cases Fourthly, amending and supplementing provisions in the CPC 2015 on the participants in the meeting to consider and settle complaints and petitions about returning the petition Fifthly, amending and supplementing regulations on the procedures for accepting civil cases such as: Amending and supplementing regulations on the form of accepting cases; Supplementing provisions on the content of notice of accepting the case; Additional provisions on procedures for notification of additional case handling, notification of acceptance of counterclaim requests, independent requirements 3.2.2 Proposing guidance on the implementation of law on lawsuit initiation and acceptance of civil cases 3.2.2.1 Proposing and guiding the implementation of law on initiating lawsuits First, instructions on taking action of family line 21 Secondly, guidelines on criteria for identifying subjects with rights and interests are violated Third, guidance on lawsuit initiation of trade unions in accordance with Item of Article 187 of the CPC Fourthly, instructing a number of cases to determine specific counterclaims such as the request of the defendant to share common property of husband and wife in the case of marriage and family disputes, requesting cancellation of fishing administrative decisions of the defendant in the case of disputes over land use rights Fifth, how specific instructions are "existing documents" as provided in Item of Article 190 of the CPC and the case where the petitioner does not have the documents and evidence attached to the petition Sixth, instructions on how to "solve beyond the scope of lawsuits" and "solve the case thoroughly" 3.2.2.2 Proposing guidance on the implementation of the law on the accpentance of civil cases Firstly, guidelines on territorial jurisdictional regulation of the Court Secondly, guidance on the authority to cancel the individual decision of the district People's Committee and the chairman of the district People's Committee Thirdly, in terms of the way to open a meeting to resolve complaints and petitions about returning the petition, the Judge must issue a decision to open a meeting to resolve complaints and petitions about returning the petition and send immediately to the People's Procuracy of the same level, the litigant has a complaint At the same time, guide the participants in the session including the secretary to record the minutes of the meeting Fourthly, instructing some bases to return the petition in Article 192 of the CPC, such as: Based on the fact that has been resolved by a legally enforceable judgment or decision, the grounds for initiating the lawsuit are not amended supplement the petition form at the request of the Court At the same time, specify other bases to determine the address of the defendant, who has related rights and obligations at the time of initiating a lawsuit, including bases Besides, it is proposed that the Supreme Court should not confirm the address in case the defendant, the person with related rights and obligations is a foreigner or Vietnamese living in exile 22 3.3 Solutions to initiate lawsuits and accept civil cases Firstly, set up an annual statistic reporting mechanism of the Court on cases of returning the petition Secondly, publicity and transparency of legal proceedings to consider and resolve litigation documents of the litigants and procedures for accepting civil cases at the Court To promote the role of supervising the observance of law by the People's Procuracy of the same level in receiving petitions and accepting civil cases Thirdly, continue to strengthen the staff, improve the capacity, professional qualifications and responsibilities of the Judge Fourthly, strengthen inspection and examination to improve the spirit and responsibility of judges and officials of the Court Fifthly, consolidate and develop a team of lawyers with sufficient quantity, quality, ethics and professional qualifications Sixthly, promote propaganda, dissemination and educating on Civil proceedings CONCLUSIONS The right to sue a civil case is one of the basic rights of a person and a civil lawsuit is one of the most effective tools to protect the legitimate rights and interests of infringement or dispute When the subjects have the right or the law grants the right to initiate lawsuits at the Court, the Court shall have to consider and accept the civil case when they fully meet the conditions prescribed by law From the moment the civil case is accepted, it will give rise to the rights and obligations of the litigants in the case as well as the settlement of the Court to effectively protect the legitimate rights and interests of the owners in society With such an important meaning and role, not only the civil procedure law of Vietnam but also the civil procedure legislation of many countries in the world has the right to sue, initiate lawsuit and order and procedures proceeding to accept civil cases From a systematic study of the argument of suing and accepting civil cases, the thesis clarifies the theoretical issues of initiating lawsuits and accepting civil cases as concepts and right to sue; concepts, characteristics, meaning of suing and accepting civil cases; scientific basis of the formulation of regulations on initiating and accepting civil cases; factors affecting the 23 implementation of lawsuits and the handling of civil cases; the contents of the civil procedure law on initiating lawsuits and accepting civil cases Being aware of the role and meaning of initiating lawsuits and accepting civil cases in civil proceedings, with the orientation of studying lawsuits and accepting civil cases under the law and real practice Currently, the research and evaluation of the advantages, limitations and shortcomings in the provisions of Vietnam's civil procedure legislation on initiating lawsuits and accepting civil cases is an essential task Compared with the Ordinance on Procedures for Settlement of Civil Cases, Ordinance on Procedures for Settlement of Economic Cases, Ordinance on Procedures for Settlement of Labor Disputes and CPC in 2011, the provisions on lawsuits and the handling of civil cases in CPC 2015 was relatively complete, in accordance with the proceedings However, some regulations on initiating lawsuits and accepting civil cases are not really scientific, there are many shortcomings and shortcomings that lead to difficulties in practice and the situation of people having difficulties towels, barriers when carrying out lawsuits at the Court still remain On the basis of examining the theoretical issues studied in Chapter 1, PhD student analyzes the current situation of Vietnamese law on lawsuits and the handling of civil cases, showing the limitations and shortcomings of the regulations law; at the same time, analyze and point out the shortcomings, limitations in implementation practices and the causes of those shortcomings and limitations Stemming from the current situation of Vietnamese civil procedural laws on lawsuits and the handling of civil cases as well as practical implementation in courts in recent years, it is necessary to continue to improve the law on initiating lawsuits and accepting civil cases in order to better ensure people's right to sue as well as enhance the Court's responsibility to handle and settle civil cases In the current period, Vietnam is continuing the renovation process and continuing to implement the judicial reform strategy, so completing the law on lawsuits and handling civil cases is an objective requirement, contributing the part promoting economic and social development, creating trust from foreign partners when seeking investment opportunities in Vietnam, and at the same time a practical activity to build the rule of law state On the basis of synthesizing the research results, the PhD student has given the basic requirements as well as suggestions for improving the law and implementing solutions to initiate lawsuits and accept civil cases in Vietnam 24 LIST OF DECLARED SCIENTIFIC WORKS IN CONNECTION WITH THESIS SUBJECT Nguyen Thi Huong, Nguyen Thi Hanh (2014), "Regarding the acceptance and settlement of requests to declare Ms Dang Thi L lost her civil act capacity", People's Court Journal, (3), p 30-34 Nguyen Thi Huong (2015), "Comment on the Draft The revised Civil Procedure Code", People's Court Journal, (10), p 9-10; 14 Nguyen Thi Huong (2015), "Some ideas to improve the provisions of the Draft Amendment to the Civil Procedure Code on the acceptance of civil cases", Journal of People's Courts, (22), p 3-6; 16 Nguyen Thi Huong (2016), "Some concerns about settling common child relationship in divorce cases", Journal of People's Courts, (3), p 18-21 Nguyen Thi Huong (2018), "Some problems and shortcomings in applying the provisions of the 2015 Civil Procedure Code in order to resolving civil cases and proposing and petitions", Journal of People's Courts, (5), p 8-10; 47 Nguyen Thi Huong (2018), "Some issues of evidence and proof in the 2015 Civil Procedure Code and practical application", Journal of People's Courts, (11), p 7-10 ... cases in the Ordinance on procedures for settling civil cases, the Ordinance on Procedures for Settlement Economic case, Ordinance on procedures for settling labor disputes At the same time, the... a basis for taking action The following documents must be attached to the petition: (i) written authorization to the lawyer; (ii) written evidence 11 1.5.4 Contents of legal provisions on procedures... with the Ordinance on Procedures for Settlement of Civil Cases, Ordinance on Procedures for Settlement of Economic Cases, Ordinance on Procedures for Settlement of Labor Disputes and CPC in 2011,