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1 MINSTRY OF EDUCATION AND TRAINING MINSTRY OF JUSTICE HANOI UNIVERSITY OF LAW - NGUYEN THI THUY HANG ENSURING LITIGATION RIGHTS OF LITIGANTS IN CIVIL PROCEDURE Specialized major: Civil Law and Civil Procedure Code: 38 01 03 SUMMARY OF DISSERTATIONS HA NOI, NAM 2019 The dissertation is completed at: HANOI UNIVERSITY OF LAW Academic Supervisor: Prof.Dr Trần Anh Tuấn Dr Đinh Trung Tụng Reviewer 1: Dr Lê Thu Hà Reviewer 2: Dr Nguyễn Quang Thái Reviewer 3: Dr Nguyễn Cơng Bình Dissertation will be examined by the Council of Dissertation Evaluation at Ha Noi Law University at date / Dissertation is available at: 1) National Library of Viet Nam; 2) Library of Ha Noi Law University / 2019 INTRODUCTORY In the trend of development and international integration, the issue of protecting human rights has become increasingly more important Therefore, in the trial activity to ensure the litigation right of the litigant is an objective indispensable Ensuring the litigation right of the litigants in civil proceedings is the basis for resolving the case accurately and objectively, bringing justice to the people The view of judicial reform is recognized by the Party in Resolution No 48-NQ / TW of May 24, 2005 of the Politburo on the strategy of building and perfecting the Vietnamese legal system up to 2010, oriented to 2020 indicated: “Perfecting the State's protection regime with respect to the rights and legitimate interests of citizens, the regime of state agencies' responsibilities, especially the Court in protecting those rights; strictly handle all acts of infringing upon the rights and legitimate interests of citizens " It can be seen that our Party's view on judicial reform requires a drastic reform of judicial proceedings towards democracy, openness, transparency, ensuring the litigation of the litigants , ensuring the effectiveness of civil judicial procedures to meet the requirements of ensuring human rights and civil rights The constitution of the socialist republic of Viet Nam 2013, which is seen as the most powerful national Act, concretized this issue at paragraph of Article 102 as: "People's Court is responsible for protecting justice, protecting human rights, civil rights, protecting the socialist regime, protecting the interests of the State, the rights and legitimate interests of organizations and individuals” Thus, the issue of justice protection, protection of human rights and civil rights is placed on top of many of the Court's tasks that the Constitution listed This shows the legislative progress on the ground of ensuring human rights and civil rights is the root for proteting the right to letigation of the litigants in civil procedure Ensuring the right of litigants to litigate in civil proceedings is very important Ensuring the litigation right of the litigant is to ensure that individuals, agencies and organizations have legal rights and interests infringed upon or disputed in civil relations, marriage and family business Trade and labor can protect their legitimate rights and interests before the Court However, from a theoretical perspective, there has not been any research systematic and comprehensive research on the right to litigation of the litigants in civil proceedings to serve as a basis for law assessment On the other hand, a number of regulations on ensuring litigation rights of the litigants stipulated in the Civil Procedure Code (CPC) in 2015 are incomplete or lacking, so the application of these regulations in practice has led to problems, shortcomings, failing to meet the requirements of the effectiveness of ensuring procedural rights For example, CPC 2015 stipulates the litigation rights of the litigants but does not stipulate the reciprocal obligations of the opposing parties or regulations, but there are no measures to ensure that the parties oppose the right implementation their litigation obligations Therefore, affecting the efficiency of implementing other litigation rights of other litigants On the other hand, the Court and the proceedings of the Court have an important role in ensuring the right of litigation of the litigants, but the provisions of the CPC 2015 on the responsibilities of the Court, duties and rights the term of entities conducting proceedings in the Court has not been linked to ensuring the right of litigation of the litigants The People's Procuratorate has the function of monitoring litigation activities, thereby ensuring the litigation rights of the litigants are enforced but some provisions of the CPC 2015 on the specific duties and powers of the Head of the Procuracy, Procurators have not met the requirements of ensuring litigants' right to proceedings In addition, the civil procedure law has not provided appropriate sanctions to ensure the right to proceed as well as legal rights and interests of the litigants Researching on practical proceedings at the Court showed that the Court has not really respect and sometimes violate the litigation rights of the litigants and did not create necessary conditions for the litigants to exercise the right to proceed This leads to the legal rights and interests of the parties does not been protected completely For the reasons analyzed above, this thesis named "Ensuring litigation rights of litigants in civil procedure" aims to clarify the theoretical and practical of protecting the litigation rights based on interpreting the reasons for existence, limitation in ensuring the right to litigate of the litigants By doing this, the thesis also proposes requests and petitions to ensure better litigation rights of litigants in law Civil litigation in Vietnam which be seen as an urgent matter, with theoretical and practical significance New contributions of the thesis First, the thesis builds on the basic theoretical issues of ensuring litigants' rights to litigate in civil proceedings such as the nature and scientific basis of the formulation of regulations on ensuring the right to proceedings of litigant; determine the content of legal measures to ensure the litigant's right to litigate in civil proceedings and fundamental factors to ensure the litigation right of litigants in civil proceedings Secondly, the thesis has analyzed and comprehensively assessed the limitations and shortcomings in the provisions of law as well as the implementation of the provisions of the law on the right to prosecute the litigants; The determination of the underlying cause of the litigant's right to proceedings is not guaranteed to be a premise for proposing solutions to ensure the litigation right of the litigants Thirdly, the thesis has built a system of scientific requirements and petitions to ensure litigants' rights to proceed in civil proceedings to meet the trend of international integration and the Party's guidelines and policies The State on judicial reforms ensures human rights in trial activities, including proposals to improve the law and propose the implementation of the law Forthly, proposals to improve the provisions of the CPC on the assurance of the involved parties' rights in CPC, including: supplementing the litigation rights of the litigants not yet recorded; amending and supplementing provisions on the reciprocal obligations of the involved parties in association with ensuring the right to litigation of other litigants; completing the provisions of the law on participation in civil proceedings of representatives and guardians of the rights and interests of the litigants; perfecting the provisions of the Court's responsibilities and tasks and powers of subjects conducting proceedings in the Court in association with ensuring the litigation right of the litigants; completing the provisions of the law on the mechanism of supervising the right to proceed of the litigation, and at the same time building sanctions to handle violations of the litigation rights of the litigants Lastly, proposals for implementing laws such as building criteria for judging the Court, training for uniform judicial titles Structure of the thesis Besides the introduction, overview of research issues, conclusions, references, the thesis presents with a bridge of chapters: Chapter Theoretical issues of ensuring litigants' right to litigation in civil procedure Chapter Current situation of current Vietnamese laws on ensuring litigants' rights in civil procedure and practical implementation Chapter Requirements and a number of recommendations on ensuring litigants' rights to litigate in civil procedure OVERVIEW OF THE RELEVANT RESEARCHES AND LITERATURES Through research of research projects in Vietnam and abroad related to the topic, the thesis shows that there are no works that comprehensively study theoretical and practical issues to ensure the right of proceeding of the litigants in civil proceedings in Vietnam There is still only studies from the perspective of separate legal rights (but this number is also very small) However, the research results from these specific procedural rights projects will be the basis for the PhD student to analyze and interpret the advantages of activities to ensure the litigant's rights to proceed according to a comparative perspective and procedural law science The advantages and research results of the related works will be inherited and developed by the dissertation CHAPTER 1: SOME THEORETICAL ISSUES ON ENSURING THE RIGHTS OF LITIGATION IN THE CIVIL PROCEDURE 1.1 The concept and characteristics of the litigation of the litigants in civil proceedings 1.1.1 The concept guarantees the litigation right of litigants in civil proceedings The issue of assuring the litigation rights of litigants in the CPC has been approached to study in many angles with different points of view Research results show that there are up to different views on this issue: The first view is ensuring the litigation right of the litigants is implemented through reasonable, public and transparent regulation of proceedings The second view is assuring the litigation right of the litigant by law, fully acknowledges the litigation rights of the litigant The third viewpoint is assuring the litigation right of the litigant by law to enforce sanctions in violation of litigation rights of the litigant The fourth viewpoint is ensuring the right of litigants to litigate through the determination of duties, powers and responsibilities of the proceeding subject The fifth viewpoint is ensuring the right to litigate the litigants through supervisory institutions (National Assembly, People's Council, Vietnam Fatherland Front ) Thus, it can be seen that there are many different views on ensuring the litigation rights of litigants in the CPC Through reference to the above research works and derived from the nature of the security measures, the fellows realized that the litigation rights of the litigants were ensured by the overall measures mentioned above With the above analysis, ensuring the litigation right of litigants in the legal system can be accessed in a broad and narrow sense In the broad sense, ensuring the litigant's right to litigation in the CPC is a comprehensive set of measures prescribed by the law to ensure effective implementation of the litigation rights of the litigants in practice, including full recognition of procedural rights concretely of each of the litigants, at the same time, establishing reciprocal obligations of the other litigants; establishing a representative mechanism, protecting the rights and interests of the litigants; prescribing the duties, powers and responsibilities of the Court, the Procuracy and those conducting the proceedings; setting up a mechanism to supervise the litigants' right to proceedings as well as the necessary sanctions to handle violations of litigation rights of the litigants In the narrow sense, ensuring the litigant's right to litigation in civil proceedings is construed as: the overall measures prescribed by law to ensure the effective implementation of the litigation rights of the litigants in fact including setting up a representative mechanism, protecting the rights and interests of the litigants; prescribing the duties, powers and responsibilities of the Court, the Procuracy and those conducting the proceedings; setting up a mechanism to supervise the litigants' right to proceedings as well as the necessary sanctions to handle violations of litigation rights of the litigants In the framework of this thesis, the content ensures the right of litigants to access in a broad sense 1.1.2 Characteristics of ensuring litigants' civil rights in civil procedure - The court is the subject that plays an important role in ensuring the right to litigation for the litigants - Ensuring the litigation right of the litigant is applied to all parties - Ensuring the litigation right of the litigant is the basis for the protection of the civil rights of the subject protected by law - Ensuring the litigation right of the litigants in civil proceedings is implemented by various coordination measures 1.2 The scientific basis of the law building on the right to litigation of litigants in civil procedure + The law development of the litigant's right to proceed from the request to protect the legal rights and interests of the litigants + The development of regulations on the right to litigation of the litigants is based on international standards of human rights + The development of regulations on the right to litigation of the litigants is derived from the requirement to ensure human rights in judicial activities + The development of regulations on the right to litigation of the litigants is based on the relationship between content law and procedural law + The construction of the law to ensure the litigation right of the litigants comes from the requirements of civil proceedings at the Court 1.3 The content ensures the litigation right of litigants in civil proceedings The thesis only focuses on researching the following security measures: Recognizing the litigation rights of the litigants, establishing counterpart obligations of other litigants; ensure the adoption of regulations on representatives and protectors of legal rights and interests of the litigants; ensure through the assignment of duties, powers and responsibilities of the Court; ensure the passing of the Procuracy's regulations on inspection responsibilities; ensure the adoption of sanctions regulations when the subjects violate the litigation rights of the litigants 1.3.1 Full recognition of the basic litigation rights of the litigants and at the same time establish and ensure the fulfillment of the corresponding obligations of the other litigants + The procedure law must fully and rationally record basic procedural rights and specific procedural rights based on each stage of proceedings so that the litigants can use to protect their legitimate rights and interests + There are a number of litigation rights of this litigant who are reciprocal obligations of the other litigants and only when the other litigants perform their litigation obligations, will the other party's right to proceed Therefore, depending on each stage of legal proceedings, it will be recorded to the litigants specific rights and establish reciprocal procedural obligations 1.3.2 Establishing a support mechanism to implement the litigant's right to proceed through the proceedings of the representatives and the guardians of the rights and interests of the litigants at the Court 1.3.2.1 Establish a mechanism to support the litigation of the litigants through participation of the representatives of the representatives Besides recognizing the litigant's specific procedural rights, the Civil Procedure Law must have a mechanism for the litigants who not have full capacity for procedural acts or have no conditions to directly participate in the proceedings may access to the procedural rights granted by law The reality shows that in legal relations, those who have lost their capacity for behavior, have limited capacity for behavior, juveniles or people with difficulties in perceiving behavior control must have legal representatives In addition, there are cases where the sick, go on business or for some legitimate reason that cannot participate in the proceedings also need to have a legal representative on behalf of them to exercise their rights and obligations before the Court The participation of the representative contributes to ensuring the litigation rights of the litigants are effectively implemented in practice 1.3.2.2 Establish a support mechanism to implement the litigant's right to proceed through the proceedings of the person protecting the legal rights and interests of the litigants When participating in the proceedings, not all litigants understand the law to carry out the procedural rights Because of the proceedings, the legal process in court is quite complicated Therefore, legal support of legal rights and protection advocates is needed to help the person implement this process The participation of the person protecting the legal rights and interests of the litigants is very important for ensuring the litigation rights of the litigants in civil proceedings The person who defends the legal rights and interests of the litigants both plays an advisory role to help the litigants understand and well implement their procedural rights while assisting the litigants in exercising other procedural rights like the right to collect evidence, proof; adversarial rights,…etc 1.3.3 Regulations on the duties, powers and responsibilities of the Court in ensuring the implementation of the litigation right of the litigants In order for the Court to ensure the litigation of the litigant, it must first establish a legal basis for promoting and ensuring the right of litigation of the litigant, by stipulating the Court's responsibilities, as well as rights and obligations parties, as a basis for implementation In the process of settling the case depending on the stage of the proceedings, the Court takes the initiative or at the request of the litigant to apply or create necessary conditions for the litigant to exercise the right to proceed with the law The extent to which the Court's responsibility will be exercised will determine whether the litigation of the litigant is guaranteed The Court exercises its power, functions and duties through trial activities Such trial shall be conducted by the proceeding proceeders, the Chief Judge, the Judge, the Court Clerk, the People's Court and the Inspector Therefore, the procedural law stipulates the duties, powers and responsibilities of those conducting legal proceedings in accordance with their functions have a direct meaning to the quality and effectiveness of the exercise of rights litigation of litigants Especially the duties and powers of Judges, Assessors and Court Clerks 1.3.4 Regulations on the duties, powers and responsibilities of the Procuracy in ensuring the implementation of the litigation right of the litigants The Procuracy's participation in civil proceedings is considered as one of the 11 CHAPTER CURRENT SITUATION OF VIETNAM LEGISLATION ON ENSURING THE LITIGATION RIGHTS OF LITIGANTS IN CIVIL PROCEDURE AND PRACTICE IMPLEMENTATION 2.1 Actual situation of Vietnamese laws on ensuring litigation rights of litigants in civil procedure 2.1.1 Recognition of specific procedural rights and the establishment of the litigant's obligation to respond to the proceedings 2.1.1.1 Advantages in recognizing specific procedural rights and establishing the litigants' reciprocal obligations The results of theoretical comparison and the actual law show that, based on the nature and purpose of each stage of the proceedings as well as the procedural actions that the litigants need to take to protect the rights and interests of the people The lawmakers of Vietnam concretized this basic procedural right into specific procedural rights and are recognized in the CPC 2015 In addition to acknowledging specific procedural rights, based on the argument of the correlation between the rights and obligations of litigants, CPC 2015 also established counterpart obligations of the litigants to ensure for carrying out litigation rights of litigants in CTD 2.1.1.2 Limitations in recognizing the right to prosecute and establishing the litigant's counterpart obligations * Restrictions on the recognition of legal rights - The provisions of specific litigation rights of litigants in CPC 2015 are not really reasonable and not meet the requirements of ensuring the right of complaint of the litigants - CPC 2015 lacks regulations on the rights of the litigants in requesting individuals and competent agencies to request and recommend, reconsider the decision of the Municipal Court of Justice - CPC 2015 did not specify the right to a trial by an independent and objective Court within a reasonable time - CPC 2015 has no provisions on the right to request the application of temporary emergency measures before lawsuits 12 * Limitations in setting up the litigant's litigation obligations: - CPC 2015 does not stipulate the obligations of the defendant, the person with the rights and obligations in sending the plaintiff to express their views on the petitioner's claim and documents and documents just attached - CPC 2015 does not provide for the obligation to send appeal feedback and attached documents and evidence to the appellant and consider the appeal to be a litigation right of the litigants instead of a litigation obligation their - CPC 2015 does not prescribe the obligation to send copies of appeals and attached documents and evidence of the appellant to the litigants related to the appeal - CPC 2015 does not stipulate measures and time limits for implementing plaintiff's obligations in sending documents and evidence to opposing parties - CPC 2015 does not stipulate measures and time limits for implementing plaintiff's obligations in sending documents and evidence to opposing parties 2.1.2 Actual situation of legal provisions of the Law on Ensuring the right of litigants to litigate through the role of the representative, the person protecting the legal rights and interests of the litigants 2.1.2.1 Actual status of the provisions of the civil procedure law on ensuring the litigation right of the litigants through the role of the representative CPC 2015 regulates that representatives have many changes in order to create favorable conditions for the litigants to have the right to act on behalf of the Court to best protect their legal rights and interests they However, the research results show that there are some regulations on representatives in CPC 2015 which have not been rationally and clearly defined, leading to difficulties in implementing the representation rights of the litigants - CPC 2015 does not stipulate clearly that legal entities cannot act as authorized representatives - The provisions of the CPC 2015 on the time when the litigants can perform the authorization in civil proceedings, the subject confirms the authorization and the form of authorization has not met the requirements to ensure the right to have a representative participate in litigation of the litigant 2.1.2 The reality of the provisions of the civil procedure law on ensuring litigants' right to proceed through the role of the representative, the person protecting the legal rights and interests of the litigants 13 - CPC 2015 has not created favorable conditions for the guardians to assist the litigants to participate in the proceedings to support the litigants to exercise their right to proceed In particular, CPC 2015 has not yet simplified the procedures for registration as a guardian of the rights and interests of the litigants - The opinion of the person who defends the legal rights and interests of the person presenting at the trial is not always recognized by the trial panel Therefore, the role of the legal guardians to protect their rights and interests is weak - CPC 2015 has no exclusion provisions for the person protecting the legal rights and interests of the litigants with their relatives (children; wife, husband or father, mother) participating in protecting rights, legal benefits for the litigants with opposing interests in the same case 2.1.3 Status of civil procedural laws and regulations on the Court's responsibilities and duties, powers and responsibilities of persons conducting legal proceedings in ensuring the execution of the litigation right of the litigants 2.1.3.1 The status of civil procedural laws and regulations on the Court's responsibilities in ensuring the litigation right of the litigants Firstly, the CPC in 2015 has no provisions on the Court's responsibilities associated with ensuring the litigation right of litigants in civil proceedings Secondly, CPC 2015 has supplemented the principle of Article that the Court is not allowed to refuse to accept the case when there is no applicable law to ensure the litigant's right to sue, but CPC In 2015, there were no regulations on sanctions against the Court when it refused to accept the case on the grounds that there was no applicable law Thirdly, CPC 2015 does not limit the time that the Court has the right to collect evidence, which has greatly influenced the litigation of the litigants Fourth, the impartial independence of the Court in the trial process is an important guarantee for the litigation right of the litigants to be practically practiced 2.1.3.2 Actual status of civil procedural laws and regulations on duties, powers and responsibilities of persons conducting legal proceedings in ensuring litigation rights of litigants In addition to the advantages, the 2015 CPC regulates the duties and powers of Judges, Clerks and Assessors with some limitations such as: 14 - There are no provisions or clauses that specifically stipulate the Judge's responsibilities in ensuring and supporting the litigants to exercise the procedural rights prescribed by law - CPC 2015 stipulates that the litigants are obliged to transfer documents and evidence related to the case to other litigants, but not stipulate that the Judge should be responsible for supervising, urging and requesting the litigants litigants perform that obligation - Article 51 of the CPC 2015 does not have any provisions attached to the responsibilities of the Secretary with the right to prosecute the litigants or stipulate that the Secretary is responsible with the Judges to support and create favorable conditions for litigants to exercise their legal rights - CPC 2015 does not stipulate that People's jurors must study case files from any stage of the procedural process 2.1.4 Current situation of the provisions of the civil procedure law on the mechanism of supervising the assurance of litigation rights of the litigants Besides the advantages, there are some limitations such as: - The provisions of CPC 2015 did not meet the requirement of supervision to ensure the litigant's right to sue - The provisions of the CPC 2015 on the right to protest of the Procuracy have not met the requirements of ensuring the right of self-determination and right of litigation 2.1.5 Actual situation of the law on sanctions dealing with violations of litigation rights of litigants Some acts of violation of litigation rights of the litigants are not yet regulated by the law on sanctions, leading to the right to proceedings of the litigants not yet guaranteed - CPC 2015 does not stipulate sanctions for acts of obstructing the litigants, their representatives, the persons protecting legal rights of the involved parties in collecting documents and evidence to prove the requirements of litigant - CPC 2015 has not yet imposed sanctions for the representative; the person defending the legal rights of the litigant if they commit acts of harming the execution of the litigation right of the litigant - CPC 2015 does not regulate sanctions if the litigants not perform the obligation to send documents and evidence to the opposing parties - CPC 2015 only regulates sanctions for acts of obstructing procedural activities but 15 has not set a responsibility to compensate for damage in cases where the subjects conducting legal proceedings and opposition parties violate the rights litigation of other litigants 2.2 Practical implementation of current regulations on ensuring litigation rights of litigants in civil proceedings 2.2.1 Regarding the results achieved from practical implementation of current regulations on ensuring litigation rights of litigants in civil proceedings - In recent years, basically the litigation rights of the litigants have been guaranteed to be implemented in practice Specifically, the right to sue, when the litigant sues the case to meet the provisions of law, the Court is accepted - The results of practical research also showed that the litigation rights of the litigants were also ensured by the Courts in practice In the process of resolving a civil case, the number of successful conciliation cases in 2017 is 173,958 cases, reaching 53.3% - Complaints of the litigants are also concerned, implemented In 2017, the high-level People's Courts and the Supreme People's Court settled 7,097 / 18,067 applications for cassation review and retrial, reaching 39.3% (8.8% higher than the previous year); settle 4,875 / 5.005 complaints about procedural and procedural decisions, reaching 97.4% (8.9% higher than the previous year) - In the process of resolving civil cases, the Court also respected and ensured the litigants exercise their rights of proceedings - The Ministry of Justice has granted certificates of law practice to 1,004 cases; Granting and extending practice licenses in Vietnam for 57 cases of foreign lawyers The country has a total of 12,581 lawyers who have been granted practicing cards (increasing 1054 lawyers compared to 2016) With a growing number of lawyers, in the process of participating in litigants, there are more opportunities to choose experienced and professional lawyers to help support the litigants in ensuring rights your chant - Therefore, in 2017 legal aid centers have completed 79,743 legal aid cases for 87,268 people, of which 16,280 cases involved in legal proceedings (up 150% compared to 2016) - The Procuracy at all levels also discovered violations in the process of resolving civil cases, contributing to ensuring the litigation right of the litigants Specifically, in 2016, the Procuracy issued 1,521 appellate appeals, in which the Court accepted 1,319 protests at the rate of 86.7% 16 2.2.2.1 Shortcomings and shortcomings exist in the implementation of the provisions of the civil procedure law on the rights of litigation of the litigants, the other party's counter-litigation obligations - The status of the litigant who fails to fulfill his / her present obligation to summon the Court leads to the right to participate in the other party's conciliation - The phenomenon of the litigant does not perform the obligation to respond to the lawsuit and does not participate in the meeting to implement the submission and public access to the evidence - The litigants not perform the obligation to send documents and evidence to the opposing parties, leading to the right to access evidence and documents of the case, the right of litigants to protest is not guaranteed - The non-cooperation of one party leads to the right to ask the Court to take measures to examine on-site appraisal and the right to request property valuation to not be implemented 2.2.2.2 Shortcomings and limitations in implementing the litigation rights of the litigants through the representative and the supporting role of the person protecting the rights and interests of the litigant * Shortcomings and limitations in implementing the litigation rights of litigants through representatives - The right to have the representative of the litigant not be exercised due to the different ways of understanding and applying the representative scope of the representative between the Courts - The right to have the representative of the litigant not taken due to the ignorance of the litigant and their representative * Shortcomings and limitations in practical implementation of litigation rights of the litigants through the support role of the person protecting the rights and interests of the litigant - The Court has not created favorable conditions for the protection of the rights and interests of the involved parties to participate in the proceedings, leading to the right to ask the litigants to protect their interests - The person protecting the legal rights and interests of the litigants and his / her relatives together participating in protecting legitimate rights and interests of the involved parties with opposing interests 17 - Not always Lawyers can enter the register on time as prescribed by law, many cases of Judges assigned to resolve civil cases are not aware of the importance of Lawyers right from the start sued and accepted the case, so it was late in entering the register of guardians of legal rights and interests of the litigants - The phenomenon of the Court still does not really respect the role of the legal guardian of the legal rights and interests still exists 2.2.1.3 Shortcomings and limitations in practical implementation of the provisions of the Court's responsibilities and duties, powers and responsibilities of persons conducting legal proceedings in ensuring the implementation of the litigation rights of the litigants * Shortcomings and limitations in practical implementation of the provisions of the Court's responsibilities in ensuring the implementation of the litigation rights of the litigants - The Court does not conduct invalid service procedures, leading to the parties' failure to modify the counterclaim, so the litigant's right to protest is not implemented (Judgment No 53/2018 / DS-PT in the case of "suing property" by the People's Court of Dak Lak province for appellate trial on March 21, 2018_ - The Court has violated the right of self-determination of the litigant due to the resolution beyond the scope of litigation of the litigant (Jurisdictional Decision No 63/2017 / DS-GDT) adjudicated by the high-level People's Court in Danang on August 3, 2017) - The irresponsible court has led to some rights of litigants of the litigants not guaranteed to be implemented (Verdict No 219/2017 / DS-PT) by the High-Court People's Court in Ho Chi Minh City for appellate trial on September 15, 2017 - The Court has determined that it is not in the right way to participate in the proceedings, so it has not convened the litigant involved in the proceedings, leading to the litigants failing to exercise their procedural rights still existing (Judgment No 10/2018 / DS-PT) was heard by a high-ranking People's Court in Ho Chi Minh City on January 18, 2018 * The shortcomings and limitations in practical implementation of the provisions on duties, powers and responsibilities of conducting proceedings with the assurance of litigation rights of the litigants - Practical implementation of regulations on duties, powers and responsibilities of the Judge 18 In the trial practice, Judges not always perform exactly the duties and powers prescribed by the CPC (Verdict 48/2017 / DS-PT "Dispute on loan agreement" was tried by People's Court of Gia Lai province on September 27, 2017, mentioned the wrongdoing of the Judge due to not implementing their duties and powers according to law); (Verdict No 08/2017 / DS-PT "Disputes on deposit contracts" is tried by Danang People's Court on February 20, 2017) - Practical implementation of regulations on duties, powers and responsibilities of Court clerks Trial practice shows that the Secretary does not always perform his duties and powers rightly This affects the implementation of other litigation rights of the litigants (Judgment No 69/2018 / DS-PT "Disputes over property loan contracts" by the Tay Ninh Provincial People's Court for appellate hearing on March 26, 2018, the judgment of the provincial TA has identified the wrongdoing signing the Court in writing the minutes of the trial; (Verdict 48/2017 / DS-PT "Dispute on loan agreement" by Gia Lai People's Court on September 27, 2017) - Practical implementation of regulations on duties, powers and responsibilities of people's jurors In the practice of many cases, the jurors not carefully study the contents of the case but only participate as the fulfilled components Therefore, there are cases where the jurors not know that they have participated in the trial before, so they continue to participate in the second trial, leading to the judgment being canceled because the jurors participate in the trial of the same case twice (Judgment No 16/2018 / DS-PT on February 2, 2018 "Disputes over land use rights" issued by Bac Giang Provincial People's Court) 2.2.1.4 Shortcomings and limitations in the practice of implementing regulations on the mechanism of supervising the litigation of the litigants - There are cases where the lower level Procuratorate protests but this protest is not grounded so the superior Procuracy has withdrawn the protest (Sale No 09/2017 / LD-PT "Dispute on the form of labor discipline disciplinary action" by the People's Court of Binh Duong province on July 13, 2017) - The judgment is canceled because the participant participated in the same case twice (Judgment No 188/2017 / DS-PT on "Claims due to infringement of life" by the People's Court of Ben Tre on appeal on August 17, 2017) 19 - The status of the litigant appeals to amend the first instance verdict, but the VKS protested against the first instance verdict that still exists, violating the right to dispose of the litigant (The case "disputes over land use rights and the request to cancel part of administrative decisions" between Ms L and Mr V, due to Da Nang's high-level People's Court adjudicated and issued judgment No 153/2018 DS-PT dated October 29, 2018) 2.2.1.5 Shortcomings and limitations in implementing regulations on sanctions dealing with violations of litigation rights of litigants - In fact, violations that lead to litigation of the litigants are not guaranteed to exist For example, the district People's Court Judge Tuy Phuoc (Binh Dinh) has just sentenced a divorce case, when suddenly a dozen people on the defendant rushed to kick down the Council's furniture and shock the file, tear up all documents The tearing down of records and documents greatly affects the implementation of subsequent procedural rights at the appellate trial - The status of defendants' legitimate rights and interests still violates the litigation right of the litigants - The situation of the opposing opposition that obstructs the other parties to participate in the proceedings at the request of the Court still exists, making it difficult for the process of resolving the case and making other parties unable to so show their legal rights (Jurisdiction decision No 07/2017 / HNGD-GDT dated July 11, 2017 "Divorce dispute" by the high-level People's Court in Da Nang adjudicated according to cassation procedures) 2.3 The reasons of the litigation right of the litigants is not guaranteed The litigation of the litigants has not been guaranteed to be practiced due to many different reasons In addition to causes due to inadequacies in the provisions of the procedural law, the fellows have analyzed in sections 2.1 and 2.2 of Chapter 2, there are also the following causes: Firstly, due to the ability of the litigants to understand and comply with the law Secondly, due to the level of competence, qualifications and perceptions of proceeders Third, lack of support from legal aid organization and lawyer team 20 CHAPTER 3: REQUIREMENTS AND SOME RECOMMENDATIONS ON PROTECTION OF THE LITIGATION RIGHTS OF THE LITIGANTS IN THE CIVIL PROCEDURE 3.1 Requirements for ensuring litigation rights of litigants in civil proceedings + The completion and implementation of the provisions on ensuring the right to litigation of the litigants must meet the requirements of building a socialist Vietnamese ruleof-law state + The completion and implementation of the provisions on ensuring litigation rights of the litigants must meet the requirements of judicial reform and international economic integration in the current context + The completion and implementation of the provisions of the litigation of the litigants must meet the requirements of the uniformity of the legal system + The completion and implementation of the provisions on ensuring the right to proceedings of the litigants must effectively overcome existing shortcomings and limitations 3.2 Proposals on ensuring litigants' rights to litigate in civil proceedings 3.2.1 Proposing to perfect the law on ensuring litigants' rights to litigate in civil proceedings 3.2.1.1 Supplement and concretize the litigation rights of the litigants not yet recorded by law - Amending and supplementing provisions on the right to complain of the litigants in the direction of expanding this right - Supplement the right to request individuals and competent agencies to request and petition, reconsider the decision of the Municipal Court of Justice - Supplement the right to adjudication by an independent, objective Court within a reasonable time - Supplement the right to request the application of provisional emergency measures before initiating a lawsuit 3.2.1.2 Amending and supplementing provisions on the reciprocal obligations of the involved parties in association with ensuring the right to litigation of other litigants 21 - Supplement the obligations of the defendant, the person with the rights and obligations in sending the plaintiff to express their views on the plaintiff's petition request and attached documents and evidence - Additional obligation to send a copy of the appeal and attached documents and evidence of the appellant to the person concerned regarding the appeal - Additional obligations to send appeal feedback and attached documents and evidence of the litigants not appeal the appeal Supplementing provisions on the obligation of exchanging documents and evidence of the litigants to request legal proceedings to ensure the rights of litigants of other parties Supplementing provisions on the time of exchanging documents and evidence between the litigants and the responsibility of supervising and urging the Judges 3.2.1.3 Perfecting the provisions of the law on ensuring the litigation rights of the litigants through the role of the representative, the person protecting the legal rights and interests of the litigants * Perfecting the provisions of the law on ensuring the litigation right of the litigants through the role of the representative - Supplementing a number of subjects may not act as representatives of the involved parties - Additional provisions of cases where legal entities must not act as authorized representatives - Additional provisions on the form of authorization in civil proceedings to ensure the right to authorize individuals and legal entities to participate in the proceedings * Perfecting the provisions of the law on ensuring the litigation rights of the litigants through the role of the defense of the legal rights and interests of the litigants - Supplement the right to complain of the guardians of the legal rights and interests of the litigants in respect of the decisions and acts of the proceedings of the agency conducting legal proceedings and the persons competent to conduct the proceedings - Amending Clause Article 75 of the CPC in 2015 in the direction of simplifying procedures for registration of participation to protect the rights and interests of the litigants - Additional cases of prohibiting persons protecting legal rights and interests of involved parties to act as representatives or guardians of legitimate interests for the litigants 22 - Supplementing the opinion of the guardians of the legal rights and interests of the litigants at the trial must be recorded in the judgment, in case the Panel does not accept such opinions, the reasons must be clearly stated in the copies 3.2.1.5 Completing the provisions of the law on the responsibilities of the Court and the duties, powers and responsibilities of persons conducting legal proceedings in ensuring the implementation of the litigation rights of the litigants - Additional principles The Court must be responsible for ensuring the litigation right of the litigant - Supplementing regulations on limit of time for Court to collect documents and evidence - Supplement specific cases where the litigant has the right to request a change of Judge - Supplementing provisions on duties, powers and responsibilities of Judges in ensuring the implementation of the litigation right of the litigants - Supplementing provisions on duties and powers of people's jurors in ensuring the implementation of the litigation rights of the litigants 3.2.1.5 Complete the regulations on the mechanism of supervising the litigation of the litigants - Amending and supplementing Item of Article 170 of the CPC in 2015 to meet the requirement of supervising the implementation of the litigant's right to sue - Amending and supplementing the rights of the Procuracy at the trial to meet the requirements of the control of the litigation of the litigants - Limit the right of protest of the Procuratorate to ensure the right of self-determination of the litigant 3.2.1.6 Supplement sanctions to handle violations of litigation rights of the litigants - Supplement regulations on sanctions for acts of obstructing the involved parties' proceedings and persons protecting their legal rights and interests - Supplementing regulations on handling acts of obstructing the verification and collection of evidence of the involved parties, representatives and persons protecting legal rights of the involved parties - Supplementing sanctions in case the litigants not perform the obligation to send documents and evidence to the opposing parties 23 - Supplementing sanctions in case the representative or guardian of the legal rights of the involved parties violate the litigation right of the litigant - Additional liability for damages of the Court in case of infringement of the litigation right of the litigant leading to damage - Supplementing sanctions to handle criminal responsibilities for infringement of litigation rights of litigants in civil proceedings - Supplementing the litigants 'civil liability compensation for violations of other litigants' rights leading to damage 3.2.2 Proposing the implementation of regulations on ensuring litigation rights of litigants in civil proceedings 3.2.2.1 Develop a program to assess the justice index to improve the effectiveness of supervision to ensure the implementation of the litigation right of the litigants 3.2.2.2 Enhance other guarantees from the Court to ensure the implementation of specific litigation rights of the litigants 3.2.2.3 The State must have guidelines and strategies to change the mindset, awareness of the spirit of supremacy, and judicial activities in the direction of the Court doing public services to protect the legal rights of the litigants 3.2.2.4 Improving the effectiveness of legal aid activities, bailiffs and lawyers 3.2.2.5 Unify the model of training judicial titles 24 GENERAL CONCLUSIONS The systematic study of the theoretical issues of ensuring litigation rights of litigants in civil proceedings is an important premise for screening and assessing the status of the law and the practice of security assuring the litigation of the litigant Therefore, Chapter of the thesis has completely built up the theoretical issues of ensuring litigants 'rights to litigate in civil proceedings such as the concept and characteristics of ensuring the right of litigants' rights in Civil proceedings, at the same time, the thesis also explains the scientific basis of the formulation of regulations on the right to litigation of the litigants and analysis of the basic contents of ensuring the right to proceed of the litigation civil litigation On the basis of comparing with the theoretical issues studied in Chapter 1, Chapter of the thesis focuses on clarifying the shortcomings and problems in the real situation of laws and practices to ensure the rights of specific procedural proceedings of the litigants in civil proceedings By studying the current status of the law on ensuring litigation rights of litigants in civil proceedings, the thesis has pointed out the limitations and shortcomings of the current law on ensuring the litigation rights of litigants in Civil Procedure Besides, Chapter of the thesis also analyzes and interprets inadequacies and problems that exist in practice to ensure the right of litigation of the litigants and at the same time clarify the objective and subjective causes leads to problems and shortcomings On the basis of the research results in Chapter on the actual situation of law and practice to ensure the right of litigants' litigation, the thesis has identified the causes leading to limitations and inadequacies in the implementation of rights litigation of the litigant Therefore, in Chapter 3, the Thesis has explained the requirements and proposed a number of proposals to ensure the litigant's right to proceed These petitions focus on two basic issues: Proposing to improve the law to ensure the litigation rights of the litigants and to propose the implementation of legal provisions on the right to prosecute the litigants Hopefully, these petitions may contribute to improving the efficiency in ensuring litigation rights of litigants in civil proceedings in the future 25 LIST OF PUBLISHED WORKS RELATED TO THE THESIS Nguyen Thi Thuy Hang, 2014, "Perfecting a number of regulations on supervising compliance with the law in civil proceedings to ensure the petitioner's right to sue”, Procuratorial Journal, No 09 Nguyen Thi Thuy Hang, 2014, "Assessment activities under the provisions of the Vietnam Civil Procedure Code and the French Civil Procedure Code", Procuratorial Journal, No 22 Nguyen Thi Thuy Hang, 2015, "Ensuring litigation rights of litigants through representatives", Journal of the People's Court, No 11 Nguyen Thi Thuy Hang, 2015, "Completing the Civil Procedure Code to implement the provisions: the right to protect the legitimate interests of the litigants is guaranteed", Journal of Legislative Studies, No 12 Nguyen Thi Thuy Hang, 2017, "Ensuring the right to request the Court to resolve disputes in civil proceedings," Journal of Law, No ... also proposes requests and petitions to ensure better litigation rights of litigants in law Civil litigation in Vietnam which be seen as an urgent matter, with theoretical and practical significance... petitioner's claim and documents and documents just attached - CPC 2015 does not provide for the obligation to send appeal feedback and attached documents and evidence to the appellant and consider... Courts and the Supreme People's Court settled 7,097 / 18,067 applications for cassation review and retrial, reaching 39.3% (8.8% higher than the previous year); settle 4,875 / 5.005 complaints about