According to Vietnamese law, there are two procedures for reconsidering the judgment and decision that has legal effect is cassation procedure and reopening procedure. Reopening is a special procedure of civil litigation, in which, the Court has the jurisdiction to examine the legality of judgment or decision that has legal effect when appealed. However, reconsidering a judgment or decision that has legal effect under this procedure is based on the discovery of important facts of the case, not on the discovery of serious procedural irregularities or the application of law in resolving the case.
Definition and characteristics of Reopening in civil litigation:
Definition
Reopening is a procedure to review a legally effective judgments or decisions that are appealed on the grounds of newly discovered details that may substantially change the content of the judgments or decisions and about which the Court and the involved parties did not know when the Court rendered such judgments and decisions.
Therefore, in order to ensure that the truth of the case is determined objectively and comprehensively and to ensure the legal rights of the involved parties, the law has stipulated a Reopening procedure to review a legally effective judgments and decisions. Because this procedure is reviewing the content of judgments or decision that have been appealed, the Reopening procedure has different characteristics than the first instance and appellate procedures.
Characteristics
- Firstly, the object of Reopening is the judgments or decisions of the Court that has the legal effect
In principle, the legally effective judgments and decisions of the Court must be enforced. However, in some cases, there are judgments and decisions that are legally effective but not in line with the objective circumstances due to the emergence of new circumstances that the Court and the litigants did not know or could not have known previously. Therefore, the law has stipulated a procedure for a Reopening to reexamine judgments and decisions that have already been legally effective when important circumstances of the case appear of which the litigant could not have known during the case resolution proceedings
- Secondly, legal basis to conduct Reopening procedure
The reexamination of judgments and decisions that are legally effective through the reopening procedure is based upon the newly discovered important circumstances of the case rather than upon the discovery of errors or legal violations by the Court during the case resolution. Therefore, four main points for lodging an appeal under the reopening procedure are:
- Newly discovered important circumstances to the case of which the litigants could not have known during the case resolution proceedings;
- There are ground to prove that the conclusion of the assessor, the translation of the interpreter are not true or there is fabricated evidence;
- The Judge, People’s Court’s Council or Procurator deliberately tampered with case records or rendered illegal verdicts.
- Judgments, decisions in criminal, administrative, civil, marriage and family, business, commercial, and labour matters by the Court, or decisions by State authorities upon which the Court relies to resolve a case, have been annulled.
- Thirdly, Reopening must be based on the appeal of an authorised party
Based on the provisions of Article 354 of the 2015 Code of Civil Procedure, the competent authorities to lodge an appeal under the Reopening procedure include:
- The Chief Justice of the Supreme People’s Court, The Head of the Supreme People’s Procuracy have the authority to appeal under the Reopening procedure judgments and decisions that are legally effective of the High People’s Court and judgments and decisions of other Court when deemed necessary, except for the cassation decision of The Council of Judges of the Supreme People’s Court.
- The Chief Justice of the High People’s Court, the Head of High People’s Procuracy have the authority to appeal under the reopening procedure with judgments and decisions that are legally effective of People’s Court at Provincial level, People’s Court at the District level within their respective territorial jurisdiction.
Not only litigants but any authority, organisation, individual who discover new circumstances of the case have the right to notify the authorised party to appeal as aforementioned in writing and verify it.
- Fourthly, the scope of Reopening is limited to the content of the appeal
The Reopening Council shall only reexamine the portions of the judgment or decision that have been appealed or are related to the appeal’s content. However, the Reopening Council has the authority to review the portions of the judgment or decision that have not been appealed or are unrelated to the appeal’s content, if those portions encroach upon public interests, the interests of the State, or the interests of third parties who are not litigants of the case.
The issues need to be noted when appealing to Reopening:
New Circumstances in Civil Reopening Proceedings
A circumstance is considered new if it existed before the Court pronounced its judgment or decision and was discovered after that judgment or decision became legally effective. Subsequently, it is necessary to determine whether this circumstance affects the resolution of the case. Therefore, the new circumstance must have an impact on the content of the new judgment or decision which serves as the basis for implementing the reopening procedure. When identifying new circumstances as the basis for an appeal under the Reopening procedure, the following issues should be noted:
- The new circumstance discovered must have existed at the time when the Court resolved the case, and the Court and the litigants could not have known about it. New circumstances that arise after the Court has resolved the case are not grounds for an appeal under the Reopening procedure, but they may be legal grounds for initiating a separate petition.
- The new circumstance discovered must be important, relevant to the case, and fundamentally change the content of the case, rendering the previously effective judgment or decision illegal or without a basis. For new circumstances that are discovered but do not create, alter, or terminate legal relationships between the litigants, they are also not basis for an appeal under the Reopening
- Circumstances that were already present in the case file, but the Court did not evaluate to use them or circumstances that were present at the time the Court resolved the case but were not detected due to errors for which the Court does not request the litigants to provide, are not considered new circumstances.
The term for lodging an appeal under the Reopening procedure:
To ensure the stability of Court’s judgments and decisions and the timely, effective, and early rectification of errors while protecting the legal rights and interests of the litigants, the appeal process must be conducted within a specific term. Therefore, the term for lodging an appeal for a Reopening is one year from the date on which authorised individual to appeal becomes aware of the grounds for the appeal under the Reopening procedure as prescribed by the Code of Civil Procedure.
Therefore, it should be noted that the term for lodging an appeal under the Reopening procedure is not the date when the parties or authorities’ organisations discover the grounds for appeal but the date when the authorised individual to appeal becomes aware of these grounds.
Authority of the Reopening Trial Council of Judges
Due to the nature of the Reopening procedure, which involves the discovery of new circumstances leading to a fundamental change in the content of the case, it is necessary to reexamine the case to ensure compliance with legal provisions. Therefore, unlike the Council of Judges for a Cassation Trial, the Reopening Council does not have the authority to amend or annul a portion of a legally effective judgment or decision. If it is found that the grounds for appeal are valid, the Reopening Council can (i) annul the legally effective judgment or decision for a new trial or (ii) annul the legally effective judgment or decision and suspend the case resolution.
Determining whether a particular circumstance is a new circumstance in the case depends on the research, investigation, and clarification by the authorised individual lodging the appeal. Based on this, they will make a decision on whether there are grounds for an appeal under the rehearing procedure. Therefore, to ensure the objectivity of the decision on whether there are grounds for an appeal under the Reopening procedure, there needs to be a mechanism for coordination among the authorised individual lodging the appeal.
Above is the foundation related to Civil litigation reopening and issues to note when appealing to reopeningthat Phuoc & Partners share with readers. If you encounter any difficulties related to the legal field, please contact us. Phuoc & Partners is a law firm established in Vietnam and currently has nearly 100 members working in three offices in Ho Chi Minh City, Hanoi and Da Nang. Phuoc & Partners is also considered one of the law firms with a team of staff specialising in the leading legal field in Vietnam and whose practice areas are rated top in the legal market. such as Labour and Employment, Taxation, Mergers and Acquisitions, and Litigation. We are confident that we are one of the Law Firms providing the best legal services to our customers.
