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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES VU GIA TRUONG PROCEDURES FOR SETTLING BUSINESS AND COMMERCIAL DISPUTES AT COURT OF FIRST INSTANCE IN VIETNAM TODAY Major: Economic Law Major code: 38 01 07 SUMMARY OF DOCTORAL THESIS IN LAW HANOI - 2020 The work is completed at GRADUATE ACADEMY OF SOCIAL SCIENCES Science Instructor: Assoc Prof Dr Dinh Van Thanh Counter-argument 1: Assoc Prof Dr Nguyen Thi Thuong Huyen Counter-argument 2: Assoc Prof Dr Le Thi Chau Counter-argument 3: Dr Hoang Thi Quynh Chi The thesis will be defended before the Academy-level PhD Thesis Assessment Council at the Graduate Academy of Social Sciences Vietnam Academy of Social Sciences At: dated 2020 Thesis can be found at: - National Library of Viet Nam - Library, Graduate Academy of Social Sciences LIST OF PUBLISHED RESEARCH WORKS RELATED TO THE THESIS Vu Gia Truong (2018), Conditions for applying simplified procedures in civil proceedings and problems in practice, Magazine of Lawyers, No 2/2018, pages 25-44; Vu Gia Truong (2016), Problems in settling disputes on business and commercial credit contracts in court, Magazine of Lawyers, No 2/2016, pages 34-38; Vu Gia Truong (2016), Problems in settling business and commercial disputes in court, Magazine of Vietnamese Lawyers, No 3(24)/ March/2016, pages 52-56; INTRODUCTION The urgency of researching the topic In the context of Vietnam's economic integration increasingly deeply into the regional and world economy, the transparency and creation of an open business environment creating a basis for enterprises to compete equally, improving domestic business capacity and attracting more foreign investors is an urgent need One of the solutions to improve the business environment is to perfect the methods to settle business and commercial disputes Resolution No 48-NQ/TW dated 24/05/2005 of the Politburo on Strategy for building and perfecting the legal system of Vietnam to 2010, with orientations to 2020 and Resolution No 49-NQ/TW dated 02/06/2005 of the Politburo on the Judicial reform strategy to 2020 also stated that one of the tasks of Judicial reform is to: " Continue to improve civil proceedings" [03, p.4] When business and commercial disputes are brought to the court for settlement, the Court of First Instance trial is the first level of adjudication in the dispute settlement process This is a very important period, showing the most concentration of ensuring business freedom of business entities and the litigants' right to self-determination in resolving business and commercial disputes Currently, the order of resolving business and commercial disputes according to judicial procedures in court is specified in the 2015 Civil Procedure Code (2015 Civil Procedure Code) and is promoting the positive effects However, due to the peculiarities of business and commercial disputes, the current practice of resolving business and commercial disputes at courts in our country still reveals a number of limitations and problems have been completely overcome Through research we can see, in Vietnam today there have been many studies on this issue at different levels, but up to now, the research issue has many changes according to the Civil Procedure Code 2015 and related documents, and the practice of dispute settlement also raises many new problems Therefore, the PhD student has chosen the topic “Procedures for settling business and commercial disputes at Court of First Instance in Vietnam today” to make a Doctoral thesis in order to better improve the legal framework in this field, which is in line with the Party's direction in terms of market economy and international integration Research purpose and mission 2.1 Research purpose The purpose of the thesis is to study the theoretical and practical issues of the law on business and commercial dispute settlement procedures at the Court of First Instance in our country today, Since then, the thesis proposes solutions to improve the law and improve the efficiency of law enforcement on commercial business dispute settlement at the Court of First Instance in Vietnam in the coming time 2.2 Research mission To achieve the above purpose, the task of the thesis focuses on solving the following basic problems: (1) Conducting an overview of domestic and foreign research related to the thesis topic; (2) Studying to clarify the legal theoretical issues about business and commercial dispute settlement procedures at the Court of First Instance; (3) Overviewing, analysising the current state of law and law enforcement practices on business and commercial dispute settlement procedures at the Court of First Instance in Vietnam today; evaluating and pointing out the limitations, shortcomings and main causes; (4) Proposing directions and solutions to contribute to complete the law and improve the efficiency of law enforcement on business and commercial dispute settlement procedures at the Court of First Instance in Vietnam Object and scope of the research 3.1 Research object (1) Legal theoretical and practical issues on business and commercial dispute settlement procedures at the Court of First Instance (2) System of provisions of Vietnamese law on this issue as well as the practice of law enforcement on on business and commercial dispute settlement procedures at the Court of First Instance in Vietnam in recent years (3) The actual data are studied from the trial results of the Court of First Instance 3.2 Research scope (1) In terms of content, the thesis focuses on theoretical issues and the system of legal provisions on business and commercial dispute settlement procedures at the Court of First Instance (District Court) as well as practical application of business and commercial dispute settlement procedures at the Court of First Instance The thesis does not include research on first-instance settlement of commercial business disputes at provincial courts, summary procedures, procedures for settling business and commercial dispute at Court of Appeal, Cassation and Retrial procedures … (2) About place and time, Researches of the thesis have been conducted nationwide and since the 2015 Civil Procedure Code comes into effect Methodology and Research method About methodology, The thesis uses the methodology of dialectical materialism and historical materialism of Marxism-Leninism, along with the application of Ho Chi Minh's Ideology, the Party's views and guidelines, the State's legal policies on the perfecting market economy institutions in Vietnam About the research method, the thesis uses traditional research methods such as: Analysis, synthesis, statistics, survey and comparison to clarify the issues within the current legal research on business and commercial dispute settlement procedures at the Court of First Instance in Vietnam Specifically: (1) Chapter 1, Methods of synthesis, analysis and comparison of documents are used to review the research situation (2) Chapter 2, Methods of analysis, synthesis and comparison are used to clarify theoretical problems (3) Chapter 3, Methods of statistics, analysis and evaluation is used to clarify the current legal status and practice of business and commercial dispute settlement procedures at the Court of First Instance (4) Chapter 4, Methods of analysis and forecasts are used to point out the need for business and commercial dispute settlement procedures in Vietnam Court New contributions of the thesis As a research work at the doctoral level, the thesis has the following new contributions: Firstly, give its own concepts about business and commercial dispute settlement procedures at the Court of First Instance, characteristics and factors affecting business and commercial dispute settlement procedures at the Court of First Instance from a historical and contemporary perspective Secondly, the thesis evaluates and points out the advantages, shortcomings and limitations in legal regulations and law enforcement practices on this issue Thirdly, providing recommendations and solutions to continue to complete the law and improve the efficiency of law enforcement on business and commercial dispute settlement procedures at Court of First Instance in Vietnam consistent with the nature of disputes arising from trade and business relations in terms of market economy and international integration The scientific and practical significance of the thesis (1) In terms of science, the research results of the thesis will provide important information and content; contribute to enriching the legal theoretical issues about the procedures for settling business and commercial disputes at the Court of First Instance in Vietnam (2) In terms of practice, the thesis is a valuable reference for legislative research agencies, Court agencies in the process of applying and enforcing law to resolve business and commercial disputes; for training and fostering institutions on first-instance adjudication skills for citizens who need access to justice and persons protecting the legitimate rights and interests of the involved parties Structure of the thesis In addition to the introduction, conclusion and reference list, the content of the thesis is structured in chapters: Chapter I: Overview of research situation and research theoretical basis; Chapter II: Theoretical issues on the procedures for resolving business and commercial disputes at the court of first instance; Chapter III: Legal status and law enforcement setting business and commercial disputes at court of first instance in Vietnam; Chapter IV: Directions and solutions to perfect the law on business and commercial dispute settlement procedures in court of first instance in Vietnam Chapter OVERVIEW OF RESEARCH SITUATION AND RESEARCH THEORETICAL BASIS 1.1 Overview of research situation 1.1.1 Group of studies on the concept and characteristics of business or commercial disputes: Some typical research projects such as: Doctoral Thesis in Law “Legal settlement of economic disputes by courts in Vietnam” by author Nguyen Thi Kim Vinh [48]; Doctoral Thesis in Law “Settlement of economic disputes in market economic conditions in Vietnam” by Mr Dao Van Hoi [56]; Doctoral Thesis in Law “Settlement of business commercial disputes at the Court of First Instance” by Ms Pham Thi Hue [49], so on 1.1.2 Group of studies on business and commercial dispute settlement and methods of settling business and commercial disputes Some typical research projects such as: Doctoral Thesis in Law “Settlement of economic disputes in market economic conditions in Vietnam” by Mr Dao Van Hoi [23], Doctoral Thesis in Law “Legal settlement of economic disputes by courts in Vietnam” [48] by author Nguyen Thi Kim Vinh, Doctoral Thesis in Law “Mediation in economic dispute settlement at court in Vietnam” by Ms Dao Thi Xuan Lan [91], Doctoral Thesis in Law “Completing the current law on economic jurisdiction in Vietnam” by Ms Nguyen Thi Hoai Phuong [118]… Science Topic “The current methods of economic dispute settlement in Vietnam” by Ministry of Justice [119] and studies “Legal proceedings and forms of economic proceedings” by Assoc.Prof.Dr.Nguyen Nhu Phat [36]; Articles: “Mediation, negotiation in the settlement of economic contract disputes” by Assoc.Prof.Dr.Tran Dinh Hao [108], “Mechanism to settle economic disputes in our country in the current period” by Assoc.Prof.Dr.Pham Huu Nghi [106] Some foreign works also mentioned the issue such as: Research“How a case moves through the court system” by Arizona Judicial Branch [152]; Research by Canada - Department of Justice “Resolving disputes - think about your options” [153]; Research “Advantages of settling your injury lawsuit out of court” by Coulter Boeschen [154] and “Resolving your case before trial” by Justice Education Society of BC [155]; Research “Methods for resolving conflics and disputes” by OKLAHOMA Bar Association [156]; Research “How to settle business partner disagreement” by Terry Master [157] 1.1.3 Group of research related to procedures for settlement of business and commercial disputes at Court of First Instance and law provisions on procedures for settlement of business and commercial disputes at court: Some typical works such as Doctoral Thesis in Law“Legal settlement of economic disputes by courts in Vietnam” [48] by author Nguyen Thi Kim Vinh, Doctoral Thesis in Law “The Court of First Instance settlement of the economic case under Vietnamese law” by Doan Duc Luong [65] Doctoral Thesis in Law “Settlement of business and commercial cases at the Court of first instance” by Pham Thi Hue [49], Doctoral Thesis in Law “Temporary urgent measures in the settlement of commercial disputes under Vietnamese law” by Nguyen Thi Thu Thuy [105]; Doctoral Thesis in Law “Temporary urgent measures in Vietnamese civil proceedings” by Tran Phuong Thao [122], Ministry level topic “Jurisdiction of the Economic Court to implement judicial reform - Theoretical and practical issues” the Supreme People's Court [109], Doctoral Thesis in Law “Settlement of economic disputes in market economic conditions in Vietnam” by Mr Dao Van Hoi [56], Articles “The universality and specificity of economic proceedings” in the ministry level topic by Assoc.Prof.Dr.Nguyen Nhu Phat [107], “The organizational model of Economic Courts in Vietnam” by Assoc.Prof.Dr.Hoang The Lien [110], “Competence to settle business disputes according to the Civil Procedure Code and issues raised in practice” [111] by Dr Phan Chi Hieu In the world there are also some researches on this issue such as “How Courts work - Steps in a Trial” [147] and “How Courts work - Court and legal procedure” by American Bar Association [148]; Research “Methods for resolving conflics and disputes” by OKLAHOMA Bar Association [156]; Research “How a case moves through the court system” by Arizona Judicial Branch [152], so on 1.1.4 Comment on the research situation and inherited thesis issues: Through studying the overview of research situation, the author can give some preliminary comments as follows: Firstly, most studies have gone into depth to clarify the concept of "business and commercial disputes" and "settling business and commercial disputes” Secondly, in many researches, concepts and forms of settlement of business and commercial disputes in general and business and commercial disputes at Court in particular have been introduced There has been a comparison between the settlement of these disputes, especially between Arbitration and Court Thirdly, there are also many theoretical and practical studies on business and commercial disputes settlement procedures at the Court of First Instance, the status of applicable legal provisions in business and commercial disputes settlement procedures, matters of the Court's jurisdiction in the first instance trial of business and commercial disputes, referring to a number of stages in the business and commercial disputes settlement procedures at the Court of First Instance Fourthly, the law study of some countries around the world shows that, according to the Civil Procedure Code of some countries, the Prosecutor's Office only participates in the trial of criminal cases, not in civil cases To a certain extent, the scientific arguments of published studies related to the thesis topic will be valuable references so that the author can absorb and inherit the achievements and values that the research has shown, as a foundation for continuing to study the thesis topic on business and commercial disputes settlement procedures at the Court of First Instance both in theory as well as in practice 1.1.5 Issues are further researched and developed in the content of the thesis: Firstly, theoretically, there are currently no studies that explicitly mention the requirements for the settlement of business and commercial disputes according to judicial procedures associated with the right to selfdetermination and ensure the right to freedom of business of business entities; no research to clarify the requirement that the application of procedures for business and commercial disputes settlement must be consistent with these rights and the nature of disputes in commercial business relations Secondly, in practical terms, the study of the current state of law and the practical application of the law on business and commercial disputes settlement procedures at the Court of First Instance should be viewed logically the issues raised in the theoretical research section, in which, it is necessary to pay attention to the right to choose of business entities for judicial proceedings at the Court; the parties' right to self-determine during the process of settling business and commercial disputes at the Court of First Instance Thirdly, on the basis of theoretical and practical research, it is necessary to propose directions and solutions to improve the law on business and commercial disputes settlement procedures at the Court of First Instance- the first stage, This is especially important and significant in deciding the settlement of business and commercial disputes according to judicial procedures in court 1.2 Research theoretical basis 1.2.1 The theories applied: The thesis is studied based on the following theoretical basis: The theory of market economy, international economic integration, respect and assurance of business freedom; Theory of the Rule of Law; Theory of judicial reform; Theory of the law of Civil Procedure regulating the settlement principles and procedures for resolving business and commercial disputes at the Court of First Instance 1.2.2 Research questions: The thesis is developed with key questions clarifying the purpose of the thesis, which are: First, theoretically: What are the concept and characteristics of the procedures for resolving business and many different opinions about disputes in general and disputes arising from business and commercial activities in particular Most countries with developed market economies often use the term "business disputes" to refer to disputes arising between actors in the business relationship seeking for profits Business and commercial disputes, no matter what angles are viewed, exhibit distinctive characteristics compared to other types of disputes A business and commercial dispute encompasses the following features: First, disputes arise directly from business and commercial relationships Second, The subject of one of the disputing parties in business and commercial activities must be a merchant Third, The subject of a business and commercial dispute when entering a business and commercial relationship must be for profit purposes Fourth, The manifestation of business and commercial disputes is a reflection of the conflicts of economic interests of the parties Fifth, although business entities have disagreements and disputes, they always want to preserve well established economic relationships 2.1.2 The concept of procedures for resolving business and commercial disputes at the Court of first instance The term "solving" is understood as "making it no longer a problem" [51, p.338] In its simplest sense, “resolving business and commercial disputes is a combination of ways and measures taken by business and commercial relationship actors or through a third person to eliminate conflicts and disagreements about economic interests that arise between them” In a broad sense, resolving business and commercial disputes is a type of legal relationship governed by civil law, civil proceedings, commercial arbitration, conciliation, and some other relevant legal documents Currently, according to the law, there are all four popular methods of resolving business and commercial disputes, they are: Negotiation, Conciliation, Commercial Arbitration and Judicial Procedure in Court According to the Vietnamese dictionary, "procedure" is understood as the common way to something [57, p.831] The first instance procedure is the first level of the judiciary that fully reviews the resolution of business and commercial disputes according to judicial proceedings in court The first instance of business and commercial dispute resolution consists of two main procedures: Procedures for first instance trial preparation and first instance trial proceedings for business and commercial disputes Thus, through the above interpretation, it can be 10 understood: “The procedure for resolving business and commercial disputes at first instance courts is the way to conduct procedural activities performed by the Court and by subjects participating in the proceedings according to the order and time limit prescribed by law to determine facts that are significant for the resolution of the dispute and on that basis, the Court issues a dependable verdict or decision to resolve the business and commercial dispute in accordance with law ” 2.1.3 Characteristics of procedures for resolving business and commercial disputes at the Court of first instance Procedures for resolution of business and commercial disputes at firstinstance courts have the following basic characteristics: First, procedures for resolution of business and commercial disputes at first-instance courts only arise and are conducted on the basis of the requests of one of the disputing parties to the Court to protect their legitimate rights and interests; Second, the scope and process of resolving business and commercial disputes at the Court of First Instance depends on the litigants' decision-making and selfdetermination; Third, in the process of resolving business and commercial disputes at the Court of First Instance, the parties are proactive and equal in providing evidence and supporting their claims; Fourth, the results achieved at the end of the business and commercial dispute resolution procedures at the Court of First Instance are judgments or decisions that can be appealed or protested 2.2 Content of business and commercial dispute resolution procedures at first-instance Court 2.2.1 Procedures for first-instance trial preparation of business and commercial disputes 2.2.1.1 Procedures for accepting business and commercial disputes Acceptance of business and commercial dispute means that the Court accepts the petitioner's petition and records it in the Court's acceptance book to resolve the business and commercial dispute The court accepts business and commercial disputes only with the following conditions: First, business and commercial disputes fall under the jurisdiction of the Court; Second, the petitioner has the right to initiate a lawsuit; Third, to satisfy the requirements for the petition and the statute of limitations for lawsuit; Fourth, the business or commercial dispute has not been resolved by a judgment or takes legal 11 effect of a court or other competent agency, unless otherwise provided for by law; Fifth, the dispute which is not agreed by the parties in advance is to be decided according to the commercial arbitration procedure 2.2.1.2 Procedures for trial preparation and conciliation of business and commercial disputes To resolve the case, the judge must conduct a series of preparations for the trial of the case within a certain period of time, including all proceedings conducted by the Court to verify and collect evidence, initially evaluate evidence and make necessary decisions in the process of resolving the case, then disclose evidence and conciliation of the case to consider bringing the case to trial Theoretically, the conciliation and preparation stage for the first instance of business and commercial case should consider the following procedures: First, the procedures for verifying and collecting evidence; Second, on evidence disclosure procedures; Third, on procedures for the application of interim urgent measures; Fourth, on conciliation procedures; Fifth, on making trial decisions 2.2.2 First-instance trial procedures for business and commercial disputes According to the Vietnamese Dictionary, "First Instance is hearing a case as the Court at the lowest judicial level" "The first instance trial of a civil case is the first civil case trial of the Court" Thus, the first instance trial of business and commercial disputes is the first level of adjudication in the resolution of business and commercial disputes at court All disputes, if they had to go to trial, must go through this court level So this is a very important level of adjudication in the adjudicating sequence of an business and commercial dispute Procedures for conducting first-instance trial for resolution of business and commercial disputes include: (i) Preparing to open the first instance court hearing; (ii) The commencement of the first instance trial; (iii) Question at the first instance court hearing; (iv) Arguments at first instance court sessions; (v) Judgment and sentencing 2.3 Affecting factors and requirements for business and commercial dispute settlement procedures at first instance Court 2.3.1 Factors affecting business and commercial dispute settlement procedures at the Court of First Instance Firstly, the legal system related to the settlement of business and commercial disputes at first instance courts; Second, the organization of the 12 court system and the independence of judges and people's jurors; Third, the effectiveness of judicial support agencies; Fourth, the capacity of the contingent of cadres and civil servants of the Court 2.3.2 Requirements for procedures for settlement of business and commercial disputes at first instance courts In order to improve the efficiency of the settlement of business and commercial disputes at first instance courts, it is necessary to set out the following requirements: First, to ensure maximum self-determination of the disputing parties; Second, the settlement of business and commercial disputes must be quick and convenient, minimizing disruption in the production and business process; Third, protecting the reputation of the parties in the marketplace; Fourth, securing factors in business; Fifth, dispute resolution must achieve high enforcement efficiency; Sixth, the cost of dispute resolution is not too high Conclusion of Chapter Through researching the legal theoretical issues of business and commercial dispute settlement procedures at the Court of First Instance, we can see: (1) The concept of Business and commercial disputes can be approached under different angles and depending on the approach, this concept can have different broad and narrow connotations (2) Business and commercial dispute settlement procedures at first-instance courts are the way to conduct proceedings performed by the first-instance court and subjects participating in the proceedings according to the order and time limit prescribed by law specified by law (3) There are many factors that influence the resolution of Business and commercial disputes in Court of First Instance Chapter LEGAL STATUS AND LAW ENFORCEMENT SETTING BUSINESS AND COMMERCIAL DISPUTES AT COURT OF FIRST INSTANCE IN VIETNAM 3.1 Current situation of legal provisions on setting business and commercial disputes at Court of First Instance in Vietnam today 3.1.1 Current status of regulations on procedures to prepare for court of first instance of business and commercial disputes 13 3.1.1.1 Business entities' right to initiate a lawsuit and the first-instance Court's acceptance of the petition (1) Agencies, organizations and individuals have the right to initiate lawsuits by themselves or through their legal representatives at competent courts to request protection of their legitimate rights and interests (2) One or more agencies, organizations or individuals may initiate lawsuits against one or more other agencies, organizations or individuals over one legal relationship or related legal relations for settlement in the same case (3) When receiving a petition filed in person, the Court shall immediately issue a receipt of the petition to the petitioner 3.1.1.2 Procedures for accepting business and commercial disputes After receiving the lawsuit petition and accompanying documents and evidences, if deeming that the commercial business dispute falls under the court's jurisdiction and is in accordance with the provisions on territorial jurisdiction, the judge must immediately notify the plaintiff so that they come to the Court to carry out the procedures to pay the court cost advance in case they have to pay the court fee advance 3.1.1.3 Procedures for taking temporary emergency measures Involved parties, their legal representatives or agencies, organizations or individuals that initiate lawsuits as prescribed in Article 187 of this Code have the right to request the Court currently handling such cases to apply one or more provisional urgent measures (provisional urgent measures) specified in Article 114 of this Code to temporarily settle urgent requests of the involved parties, protect life, health, property, collect and protect evidences etc 3.1.1.4 Procedures for mediation The Court shall conduct mediation and create favorable conditions for the involved parties to reach agreement on the resolution of civil cases in accordance with law 3.1.1.5 Procedures for suspending, continuing to resolve and suspending business and commercial disputes When there is a ground, the Court of first instance may issue a decision to carry out the following procedures: (i) Procedures for suspending the settlement of business and commercial disputes; (ii) Procedures for continuing to resolve business and commercial disputes; (iii) Procedures for suspending the settlement of business and commercial disputes 3.1.2 Situation of regulations on trial procedures at Court of first instance of business and commercial disputes 14 3.1.2.1 Procedures related to the attendance and absence of the parties to the hearing, the change of procedural position (1) At the Court of first instance session, it is necessary to ensure the presence of involved parties, their representatives and defense counsels of legitimate rights and interests (2) In the absence of all participants in the proceedings, the Court shall base itself on documents and evidences in the file to adjudicate in the absence of involved parties and other procedure participants in accordance with law when all conditions are met (3) When procedure participants are absent from the court hearing but not fall into the case where the court must postpone the court hearing, the presiding judge of the court hearing must ask if anyone has proposed to postpone the court hearing (5) In case the plaintiff withdraws the entire petition to initiate a lawsuit, but the defendant still keeps his counter-claim, the defendant becomes the plaintiff and the plaintiff becomes the defendant 3.1.2.2 Procedures relating to changes, additions or withdrawals of the disputing parties' claims and recognition of the agreement of the disputing parties (1) At the Court of first instance, the presiding judge will actively ask the disputing parties whether to change, supplement, withdraw part or all of the lawsuit petition, counterclaim or independent request? (2) In case a disputing party withdraws part or all of its request and its withdrawal is voluntary, the trial panel accepts and adjusts the trial for the part of the petition or the whole petition has been withdrawn (3) At the trial of first instance, the presiding judge continues to ask the disputing parties about whether they can reach an agreement on the resolution of the dispute? If the disputing parties can reach an agreement, the Trial Panel shall issue a decision to recognize the agreement of the disputing parties 3.1.2.3 Procedures related to ensuring the equality of rights and obligations in civil procedures; ensuring the right to litigate in Court of first instance (1) All agencies, organizations and individuals are equal in exercising their procedural rights and obligations to the Court (2) Content and methods of litigation at court hearings including presentation of evidence, questions, responses, answers and opinions, arguments on assessment of evidences and details of business and commercial disputes etc (3) The argument order and 15 procedures are performed in the order prescribed by law (4) The involved parties respond at the direction of the presiding judge 3.1.2.4 The procuracy's participation and remarks at Court of first instance sessions on business and commercial disputes (1) The procuracy shall supervise the law observance in civil procedures and exercise the right to request, propose or protest in accordance with law (2) The procuracy participates in first instance sessions for civil matters; the first-instance court for cases where evidences are collected by the Court or the object of the dispute is public property, public interest etc (3) After participants in legal proceedings have their arguments and responses completed, procurators shall express their opinions on compliance with the procedural law and give their opinions on the settlement of the case 3.1.2.5 Deliberation and judgment procedures (1) Members of the Trial panel must resolve all matters of the case by voting by majority on each issue People's jurors vote first, and judges vote last (2) The minority opinion holder has the right to present such opinion in writing and to be included in the case file (3) When deliberation is based only on documents and evidences that have been examined, examined at the court session, the results of the questioning at the court session and full consideration of the opinions of the procedure participants (4) After the judgment has been passed, the Trial panel returns to the court room to pronounce the sentence 3.2 Achievements in implementing business and commercial dispute settlement procedures at Court of first instance 3.2.1 Achievements in setting business and commercial disputes at Court of first instance (1) According to the annual performance reports of the Supreme People's Court and the research student's own research, the situation of accepting and solving cases in general and business and commercial cases in particular has achieved certain achievements (2) People's Courts at all levels in the whole country have proactively formulated and implemented plans to implement key tasks of their units and the courts under their management; focused on speeding up and improving the quality of handling and adjudicating all kinds of cases, promote the implementation of the emulation movement under the theme " Phụng cơng, 16 thủ pháp, chí công, vô tư " (Adoring justice, protecting the law, utmost justice, not for any private interest) with the motto “Gần dân, hiểu dân, giúp dân, học dân” ( "Close to the people, understand the people, help the people, learn the people") in accordance with the spirit of the 2013 Constitution, the Law on Organization of the People's Courts 2014, Resolution No 49-NQ / TW of the Politburo 3.2.2 Some limitations and shortcomings in settling business and commercial disputes at the Court of First Instance 3.2.2.1 Limitations and shortcomings in the legal provisions on setting of business and commercial disputes at court of first instance Firstly, on authorization to initiate lawsuits: The contents of Article 186 and Article 189 have contradictions shown that the authorized person is not allowed to sign the petition, but only the petitioner signs the petition is valid Secondly, on the litigants' obligation to prove: Conflict between Article and Clause of Article 96 of the 2015 Civil Procedure Code in case the involved parties have evidence but they intentionally not submit and if the Court does not ask them to submit, at the first instance or appellate Court sessions, the involved parties still have the right to provide new evidence Thirdly, on the handover of documents and evidences and the deadline for submission of documents and evidences: the 2015 Civil Procedure Code does not clearly explain what reasons will be considered by the Court (but specifically judges) as "good cause" and what reason will not be considered to be a good reason under Clause Article 96 of the Civil Procedure Code 2015 Fourthly, on the responsibility to copy documents and evidence to another involved party or to the legal representatives of other involved parties: There is no sanction to force the implementation, which leads to the litigant's failure to comply, but the Court cannot handle it and the practical feasibility of this institution is not high Fifthly, on the expertise of evidence: Currently, the 2015 Civil Procedure Code and the 2012 Law on Judicial Examination not have regulations on the order and procedures for assessment for each specific field or interdisciplinary assessment Sixthly, requesting agencies, organizations and individuals to provide documents and evidence: In fact, the request of other agencies, organizations and individuals to provide documents and evidences still faces many difficulties Seventhly, on evidence protection: In the event that evidence is being destroyed, the act of destroying the evidence 17 is taking place (such as crushing / crushing, burning evidence) that the litigant can only request the Court (in writing) to decide to take the necessary measures to preserve the evidence, it is very likely that the evidence has been destroyed, no longer in fact and as such, the evidence has not been protected as for the purposes of the law Eighthly, on the session to check the handover, access, evidence disclosure and mediation: In cases where the involved parties cannot reach agreement on issues to be resolved in the case, the legal validity of the minutes of a meeting to check the handover, access, evidence disclosure and mediation has not been specified Currently, there is no clear regulation that "the conciliation does not affect the rights and obligations of absent parties" Ninthly, on changing and supplementing the request to initiate a lawsuit in the stage of preparation for court of first instance: Up to now, the Civil Procedure Code and the guiding documents currently not have specific instructions on the procedures to change and supplement the request of the plaintiff in the trial preparation phase Tenthly, on the application of temporary emergency measures: There is no consensus between the provisions of the Civil Procedure Code and some other legal documents as well as in some documents that Vietnam has signed with other countries Eleventhly, provisions on suspending the resolution of the case: The application of Article 214 of the Civil Procedure Code 2015 in recent years has led to a shortcoming and inconsistency in the current law application among the courts Twelfthly, cases of suspension of court sessions: There is no specific guiding document of the Judicial Council of the Supreme People's Court Thirteenthly, on the procurator's participation and statements at the court of first instance session: There are still difficulties and problems when applying this provision in practice and many different views on the Procuracy's opinion on the settlement of the case 3.2.2.2 Limitations and shortcomings in the application of procedures for resolving business and commercial disputes at court of first instance According to the statistics on the results of resolving cases, the business and commerce according to first instance procedures show, currently, the rate of canceled and corrected cases is still high, accounting for a large proportion of the total number of cases accepted and tried by the Court (i) Regarding the consequences of a revised first-instance judgment or decision, there are a number of reasons such as: Due to the trial panel or the 18 judge with subjective errors leading to the status of the judgment, the decision is corrected by incorrect application of legal provisions in the process of resolving the case; collecting evidence, documents in the Court of first instance is not complete, so the higher Court must supplement; wrong interest rate calculation; wrong calculation of court fees; wrong determination of legal relations (ii) Regarding the cancellation of the judgment or decision when the trial panel or the judge has a subjective error, causing the judgment or decision to be canceled due to reasons such as: Setting disputes which are out of authority; determine the lack or wrong status of participants in the proceedings; not conduct mediation for cases that require mediation etc Some Courts have not yet thoroughly overcome the cases that are past due for resolution according to the provisions of law due to subjective reasons of the Court The situation "not to settle the case for a long time" occurs quite a lot, directly affecting the legitimate rights and interests of the involved parties Conclusion of Chapter Provisions on procedures for setting commercial business disputes at court of first instance are specified in the 2015 Civil Procedure Code is one of the laws carrying the spirit of innovation under the 2013 Constitution, institutionalizing the Party's guidelines and lines on judicial reform The trial of commercial business disputes at first instance court is the most important and decisive stage of the proceedings The types of cases that the Vietnamese court sector has resolved in recent years have seen an increasing number of cases in general, resolving commercial and business disputes, but also revealed some limitations on legal awareness and application Chapter DIRECTIONS AND SOLUTIONS TO PERFECT THE LAW ON BUSINESS AND COMMERCIAL DISPUTE SETTLEMENT PROCEDURES IN COURT OF FIRST INSTANCE IN VIETNAM 4.1 Orientations for completing the law on procedures for settlement of business and commercial disputes at first instance courts in Vietnam 19 4.1.1 Completion of current law provisions on business and commercial dispute settlement procedures at court in sync with the improvement of law in relevant fields 4.1.2 Complete the provisions of the existing law on business and commercial dispute settlement procedures at the Court to meet the judicial reform requirements of the Party and State to promote the improvement of the business environment 4.1.3 Complete existing legal provisions on business and commercial dispute resolution procedures at court to meet the requirements of international integration 4.2 Solutions to perfecting laws on procedures for settlement of business and commercial disputes at first instance courts in Vietnam 4.2.1 Solutions for completing legal provisions on business and commercial dispute resolution procedures at first instance court Through research on theoretical and practical issues, as well as determining the direction of completion, it shows that the law on procedures for resolving business and commercial dispute at first instance courts needs to complete the following provisions: First, on the authorization to sign and file the petition: It is recommended to add to Article 189 cases: “If the content of the authorization document contains provisions, the authorized representative can replace the petitioner to sign petition" Second, issues related to the obligation of proof and evidence: It is necessary to supplement regulations and have more specific guidance on the burden of proof (according to Article of the Code of Civil Procedure); Regarding the handover of documents and evidences and the deadline for handing over documents and evidences; Regarding the responsibility to copy documents and evidence to another involved party or to the legal representatives of other involved parties in accordance with Clause 5, Article 96 of the Code of Civil Procedure Regarding evidence expertise; Regarding the request of agencies, organizations and individuals to provide documents and evidence to ensure the resolution of network marketing disputes; Regarding evidence protection, in case the evidence is in danger of being destroyed 20 Third, regarding the session to check the handover, access, evidence publicity and mediation: (i) It is necessary to add provisions on notice and requirement for involved parties to attend the session The procedure for opening a meeting to check the handover, access, evidence disclosure and mediation is a new provision in the Code of Civil Procedure in 2015 (ii) Supplementing the legal validity of the minutes of the meeting; (iii) The provisions on participants of the mediation session in Article 184 of the Code of Civil Procedure 2015 need to add the subject who is the defender of the involved parties' legitimate rights and interests Fourth, complete regulations on changing and supplementing lawsuit requests in the first-instance trial preparation stage: (i) Supplementing the petitioners' claims in the preparatory stage for first-instance trials, the competent authority should supplement regulations to clarify the concept of changing or supplementing lawsuit petitions in the stage of preparing for first instance trial Also they should stipulate that the change or supplementation of the claimant's request during this period should be presented in the form of a written request; (ii) It is necessary to stipulate that the time of opening a meeting to check the handover, access and disclosure of evidence is the time to consider the request to change or supplement the petition of the petitioner to initiate a lawsuit, receive this request from the plaintiff corresponding to the contents specified in Clause 3, Article 200 and Clause 2, Article 201 Code of Civil Procedure as provided for the defendant's right to counter-claim and the right to independent claim of the right holder, related department (iii) It is necessary to have specific regulations on procedures to change and supplement the request of the plaintiff in the stage of preparation for the first instance trial Fifth, complete regulations on the application of interim urgent measures: (i) Add the time of requesting the application of provisional urgent measures (ii) Amend, supplement a number of provisions on procedures for considering application of interim urgent measures in case security measures are required (iii) Amend, supplement a number of provisions on procedures for making decisions on application of interim urgent measures Sixth, on suspensions of a court hearing: It is necessary to have specific and detailed guidance documents related to cases of suspension of civil court sessions 21 Seventh, on first instance court proceedings: (i) For the initiation of the trial, the provisions of asking the involved parties in Article 217 of the Code of Civil Procedure regarding changes, additions and withdrawal of requests are incorporated into the proceedings to initiate the session Court; (ii) For argumentation procedures, in Section of the Code of Civil Procedure providing for arguments in court, there should be an additional law governing this matter in the following direction: “Before arguing, the trial panel requests the involved parties agree on the disputes and conflicts that need to be clarified The involved parties argue on agreed issues and express their views on the evidence assessment, on the resolution of the case”; (iii) For the questioning procedure, in Article 64 of the Code of Civil Procedure 2015 on the right to protect the legitimate interests of the involved parties, there should be an additional paragraph: “Raising questions to others about related issues to the case when it is permitted by the Court or to propose to the Court matters to be asked of others or to request confrontation between the involved parties if necessary” Eighth, complete the regulations on the participation and speech of the People's Procuracy's representatives at the first instance trial of business and commercial disputes Amend regulations on the participation of the People's Procuracy in the first instance court hearing: (i) Supplement the provision: “The procuracy can exercise its right to control by examining the case file The Procuracy is not really necessary to attend all sessions and court hearings, but only needs to attend the court hearing for disputes related to state property, the litigants are unsuccessful age, the person who has lost or has limited capacity of civil acts; in other cases, it is recommended that the litigants decide for themselves” (ii) Maintaining the same as the provisions of the Code of Civil Procedure 2005, the Procuracy did not express its opinion on the resolution of the case 4.2.1 Solutions to improve the efficiency of application of business and commercial dispute resolution procedures at first instance courts In the coming time, in order to improve the efficiency of the application of network marketing dispute resolution procedures at the Court of First Instance, there are a number of solutions to consider: Firstly, to improve the efficiency of the application of business and commercial dispute resolution procedures at first instance courts, it is 22 necessary to focus on improving the capacity, qualifications and professional ethics of judges of the People's Court Second, to improve the efficiency of the application of business and commercial dispute resolution procedures at the Court of First Instance, it is necessary to focus on the role and expertise of people's jurors Thirdly, to improve the efficiency of the application of business and commercial dispute settlement procedures at the Court of First Instance, it is necessary to focus on and strengthen the propaganda, dissemination and education of the law Fourthly, to renew and perfect the system of regimes and policies for officials and judges of the People's Court, and increase the application of information technology CONCLUSION CHAPTER In the context of Vietnam's increasingly deep integration into the international market, improving the law on settlement of business and commercial disputes at the First Instance Court is an important solution to create a legal basis It must be determined that the Court is the focus, the foundation for resolving business and commercial disputes, especially the trial at the first instance, thereby creating an appropriate procedural mechanism CONCLUSION Through the process of researching the topic: "Procedures for settling commercial business disputes at the first instance court in Vietnam today" within the framework of the Doctor of Jurisprudence Thesis, allowing the author of the thesis to draw some of the following conclusions: Under the current conditions in Vietnam, businessmen have the right to freedom of business, autonomy, self-determination, and creative dynamism in their business activities, at the same time, traders also have the right to autonomy and self-determination in the settlement of business and commercial dispute Through the research process, the thesis has clarified the concept and characteristics of the business and commercial dispute; procedural concepts and characteristics of procedures for resolving network marketing disputes at court in the first instance trial stage The results of the research have clarified 23 the nature of the procedure for resolving business and commercial disputes in court that the stage of independent proceedings has a decisive role Researching and evaluating current legal provisions on first-instance settlement of the business and commercial dispute case shows that, with the issuance of the Code of Civil Procedure in 2015, the legal provisions have been increasingly improved, in which clearly defines the responsibilities of the Court and the involved parties in the exercise of procedural powers, creating maximum conditions for the involved parties to actively exercise their rights and obligations in providing witnesses to prove that your claim is grounded and legal In the trend of judicial reform, the current process of international and regional economic integration, ensuring fast, timely, and simple resolution of MLM disputes in first instance Court and efficiency is essential 24 ... “Legal settlement of economic disputes by courts in Vietnam” by author Nguyen Thi Kim Vinh [48]; Doctoral Thesis in Law “Settlement of economic disputes in market economic conditions in Vietnam”... in Law “Settlement of economic disputes in market economic conditions in Vietnam” by Mr Dao Van Hoi [23], Doctoral Thesis in Law “Legal settlement of economic disputes by courts in Vietnam” [48]... dispute settlement also raises many new problems Therefore, the PhD student has chosen the topic “Procedures for settling business and commercial disputes at Court of First Instance in Vietnam today”