COSTS OF CIVIL PROCEEDINGS - LAW AND PRACTICAL APPLICATION IN VIETNAM

ABSTRACT

Litigation costs are a traditional institution in Vietnamese civil proceedings, understood as the costs that the person filing the lawsuit, the plaintiff, the defendant, the person requesting the resolution of the civil matter, and the person with related rights and obligations in the civil case must pay for the Court to resolve the dispute their requests in civil cases and matters. The article focuses on analyzing issues related to civil litigation costs and the issues raised, and on that basis, proposes relevant recommendations to ensure access to justice in civil proceedings.

АННОТАЦИЯ

Судебные издержки представляют собой традиционный институт во вьетнамском гражданском судопроизводстве, представлятся расходы, которые лицо, подающее иск, истец, ответчик, лицо, ходатайствующее о разрешении гражданского иска, а лицо с соответствующими правами и обязанностями в гражданском деле должны платить за суд для разрешения спора, их запросы по гражданским делам и другие вопросы. Статья посвящена анализу вопросов, связанных с гражданскими судебными издержками, и поднятыми вопросами, и на этой основе предлагаются соответствующие рекомендации по обеспечению доступа к правосудию в гражданском судопроизводстве. 

Keywords: Litigation costs; Civil court fees; Civil fees; Other litigation costs; Civil Procedure Code.

Ключевые слова: Судебные издержки; Судебные издержки по гражданским делам; Гражданские пошлины; Прочие судебные издержки; Гражданский процессуальный кодекс.

1. Theoretical basis and legal provisions on Court fees, charges and other litigation costs

1.1. Civil court fees

* Based on each type of case: According to the provisions of Point b, Clause 1, Article 3 of Resolution No. 326, civil court fees include court fees for resolving civil, marriage and family, and business disputes, trade, labor. In addition, civil court fees are also calculated in cases where the Court also resolves the civil part of the criminal case (Clause 1, Article 21 of Resolution No. 326). Court fees are specifiedin the List of court fees and charges issued together with Resolution No. 326.

* Based on quota price: Civil court fees are divided into civil court fees with quota price and civil court fees without quota price. Clauses 2 and 3, Article 24 of Resolution No. 326 stipulate as follows:

- A civil case without a quota is a case in which the litigant's request is not for an amount of money or cannot be valued in a specific amount of money.

For example: Disputes about divorce, disputes about child support, disputes about claiming loaned property or temporary housing; Disputes over property ownership and disputes over land use rights where the Court does not consider value, only considers property ownership and disputes over land use rights; In the event that one party requests recognition of the asset purchase and sale contract or land use rights transfer and the other party requests to declare the asset purchase and sale contract or land use right transfer contract invalid and there is no request, other…

- A civil case with a quota is a case in which the request of the litigant is an amount of money or property that can be determined in a specific amount of money.

For example, disputes over types of contracts, disputes over division of common property, disputes over inheritance division, disputes over compensation for property damage, disputes over property ownership and disputes over use rights, land use rights where the Court must determine the value of the property or determine the ownership of land use rights in parts, disputes over property purchase and sale contracts, transfer of land use rights, one party requests to return the money, deposit and deposit penalty, one party accepts to pay the deposit amount received and does not accept the deposit penalty...

Thus, the difference between civil cases with quotas and civil cases without quotas is that in civil cases with quotas, the civil court's request is money, while in civil cases there are no valuations quota, the litigant does not have a request for money.

1.2 Civil fees

The 2015 Civil Procedure Code stipulates that "Fees include fees for issuing copies of judgments, decisions and other Court documents, fees for filing requests to the Court to resolve civil matters, fees for resolving civil matters and Other fees prescribed by law"

According to Resolution No. 326/2016/UBTVQH14, "Fees for handling civil, marriage and family, business, trade and labor requests fall under the Court's jurisdiction as prescribed in Clauses 1, 2, 3, 4, 6, 7, 8, 9 and 10 Article 27; Clauses 1, 2, 3, 4, 5, 6, 7, 8, 10 and 11 Article 29; Clause 1 and Clause 6, Article 31; Clause 1 and Clause 5, Article 33 of the Civil Procedure Code”

To ensure proper implementation of the financial regime in trial work, the collection of court fee advances and court fees, fee advances and fees; Payment of court fee advances and fee advances must be made in accordance with the provisions of law. All collected court fees and fees must be fully and promptly paid into the state budget.

Vietnamese law stipulates moderate and reasonable levels of court fees and charges. The collection of court fees and charges only aims to force litigants to bear part of the State's costs for resolving civil cases in court, so the level of collection of court fees and fees is at a level that everyone can pay, does not limit their participation in proceedings. In addition, in case the litigant's situation is difficult, depending on the level, the court will exempt part or all of the court fees and charges. In some civil cases, the State also stipulates exemption of court fees and fees for litigants. Currently, the collection of court fees and charges is carried out in accordance with the provisions of the 2015 Civil Procedure Code and the provisions of Resolution of the National Assembly Standing Committee No. 326/2016/UBTVQH14 dated December 30, 2016.

1.3 Other litigation costs

The 2015 Civil Procedure Code regulates other litigation expenses in Section 2 Chapter IX (from Article 151 to Article 168), which regulates other revenues and expenditures such as: review and appraisal costs on-site (Article 155), advances on appraisal costs, appraisal costs (Article 159), advances on asset valuation costs, asset valuation costs (Article 163), handling of advances asset valuation costs (Article 166),...

In addition to the above costs, litigation costs also include: Information use costs (information extraction fees, evidence collection fees), lawyer fees, appraisal fees, translation fees, notary fees, Court fees (court) fees (arbitration), security obligations (when requesting temporary emergency measures), travel expenses, copying documents, communication costs, etc.

2.Some inadequacies in practical application

In the process of resolving civil cases (civil cases, civil matters), there are still problems related to court fees, fees, and other litigation costs that need to be resolved as follows:

2.1 Regarding civil court fees

* Problems with calculating court fees for dividing common property of husband and wife in cases where the husband and wife have property obligations to others

Point e, Clause 5, Article 27 of Resolution No. 326 indicates: “5. For marriage and family cases, the obligation to pay first instance civil court fees is determined as follows:.... e) In case the litigants have a dispute about the division of common property and the marital property obligations, the Court conducts conciliation and the parties reach an agreement on the division of some assets, common property and common property obligations, and if some common property and common property obligations cannot be agreed upon, the parties still have to pay court fees for the division of all common property and property obligations common between husband and wife".

This provision can be understood as follows: In case the husband and wife have a dispute about the division of common property and the obligations of common property of the husband and wife to other people, if the husband and wife cannot agree on the entire division, common property and common property obligations to other people, they must pay court fees for dividing all common property and common property obligations of husband and wife. Regarding court fees for common property obligations of husband and wife to other people, there are clear regulations. However, for the court fee to divide the entire common property of husband and wife, there are currently two different calculation methods.

The first way: Husband and wife only pay first-instance civil court fees corresponding to the value of the property they actually enjoy after deducting their property obligations to others. Because, Clause 2, Article 147 of the 2015 Civil Procedure Code indicates: "In case the litigants cannot determine their share of property in the common property and request the Court to resolve the division of that common property, each Litigants must pay first instance court fees corresponding to the value of the property they are entitled to. This calculation is similar to the previous guidance of the Council of Judges of the Supreme People's Court (SPC) at Point c, Clause 3, Article 13 of Resolution No. 01/2012/NQ-HDTP dated June 13, 2012, guiding the application of a number of provisions of law on court fees and charges, specifically as follows: “3. In case a husband and wife have property obligations to another person and this person has an independent claim requiring the couple to fulfill their property obligations and the Court accepts that independent request, the obligation shall be subject to judgment. First instance civil court fees are as follows: c) Husband and wife must pay first instance civil court fees for the portion of property they are divided after deducting the value of the portion of property they have obligations to the person with an independent claim ”.

Second calculation: Husband and wife must pay first-instance civil court fees corresponding to the value of the property they are divided but not deducting their property obligations to others. Because the dispute over division of common property between husband and wife and the dispute over property obligations of husband and wife to others are two different legal relationships with different natures. Husband and wife do not always share property equally and have equal property obligations to each other. If calculating the court fee for dividing the common property of husband and wife after deducting the property obligations, there may be cases where the property obligation is greater than the value of the property that the couple is divided, so the husband and wife do not have to bear the court fee for dividing the common property of husband and wife even though they have their common property divided by the Court.

Another problem with calculating court fees for dividing common property of husband and wife in cases where the husband and wife have property obligations to others is in cases where the couple has a dispute over the division of common property and obligations regarding the common property of husband and wife towards other people, but the husband and wife can agree on the division of all common property and obligations regarding common property towards other people, they must pay how the court fees are calculated. Can the Court apply the provisions at Point e, Clause 1, Article 27 of Resolution No. 326 and what calculation method to apply?

* Problems with calculating court fees in cases where the litigant can only agree on some requirements of the case

Current practice shows that there are cases where litigants can only agree on one or a few requirements but cannot agree on the settlement of the entire case. If the case is brought to trial, how is the court fee for the request the litigant has agreed upon before bringing the case to trial?

For example, in a divorce case, the plaintiff and defendant can agree on a divorce and jointly pay debt to the independent claimant, but cannot agree on the division of common property of the couple. In this case, how are divorce court fees and court fees for debt repayment obligations calculated? Based on current legal regulations, it can be understood in two ways:

First, because the litigants could not reach an agreement on resolving the entire case, the Court brought the case to trial. Therefore, the litigants must bear all legal fees according to general regulations like other normal cases. Specifically, the plaintiff must bear civil court fees for the divorce request; the plaintiff and defendant must each bear 50% of the prescribed court fees for the amount of debt to be paid.

Second, the Court brought the case to trial because the plaintiff and defendant could not agree on the request to divide common property. However, this is a marriage and family case, so there are many claims in the case that are completely independent of each other. Among them, there are requests that the litigants have agreed upon before the trial opens, such as requests for divorce and requests to fulfill joint debt repayment obligations. Therefore, the plaintiff and defendant only have to pay 50% of the civil court fee for the divorce request and 50% of the court fee for the debt repayment amount as in the case of successful mediation.

Regarding requests for divorce, Article 55 of the Law on Marriage and Family 2014 stipulates divorce by mutual consent as follows: "In cases where husband and wife request a divorce, if it is deemed that both parties truly voluntarily divorce and have agreed on the division of property, the care, upbringing, care and education of children on the basis of ensuring the legitimate rights of wife and children, the Court will recognize the divorce by mutual consent; If no agreement is reached or there is an agreement but does not ensure the legitimate rights of the wife and children, the Court will resolve the divorce. Official Dispatch No. 72/TANDTC-PC dated April 11, 2017 of the Supreme People's Court has the following guidance: According to the provisions of Clause 4, Article 147 of the 2015 Civil Procedure Code, "in a divorce case, the plaintiff must pay the first instance court fee, regardless of whether the Court accepts or does not accept the plaintiff's request. In case both parties agree to divorce, each party must bear half of the first instance court fee"; Point a, Clause 5, Article 27 of Resolution No. 326 indicates: "The plaintiff must bear the first instance civil court fee in the divorce case regardless of whether the Court accepts or does not accept the plaintiff's request. In case of mutual consent, each party must bear 50% of the court fee.

The provisions of Clause 4, Article 147 of the 2015 Civil Procedure Code and Point a, Clause 5, Article 27 of Resolution No. 326 inherit and maintain the provisions of Clause 4, Article 131 of the 2004 Civil Procedure Code. Because there is no change in the content of the law, the Council of Judges of the Supreme People's Court has not yet issued any other instructions, so for divorce cases where the parties agree to divorce, the same instructions in Clause 2, Article 16 of Resolution No. 01/2012/NQ-HDTP dated November 13 will apply 6-2012 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions of law on court fees and charges.

Specifically, in a divorce case where the parties agree to divorce according to the provisions of the law on marriage and family, it is considered that the parties have reached an agreement on resolving the case in the event of a divorce. In case the Court conducts mediation before opening the trial and the litigants must bear 50% of the prescribed court fee (each party must bear 25% of the prescribed court fee). Thus, although the defendant agreed to divorce at the request of the plaintiff; the plaintiff and defendant have reached an agreement on mutual debt repayment, but the plaintiff and defendant have not yet agreed on the division of common property, so the divorce is not considered amicable. In this case, the plaintiff must bear civil court fees (for the divorce request). Regarding the debt repayment request of people with related rights and obligations, the parties have agreed to resolve it at the resolution session. Therefore, the plaintiff and defendant's obligation to pay court fees for the amount of debt is only 50% of the court fee as in the case of successful mediation.

* Problems with calculating court fees in case the defendant in a divorce case requests property division

The current practice of resolving marriage and family cases shows that there are cases where the plaintiff does not request to divide assets but the defendant does request to divide assets. If the defendant's request is not accepted by the Court, will the defendant have to pay court fees? If the defendant has to pay court fees, how much are the court fees? This issue still has different understandings.

The first understanding, Clause 5, Article 26 of Resolution No. 326 indicates: "The defendant who makes a counterclaim must pay the first instance civil court fee for the part of the counterclaim that is not accepted by the Court"; Point b, Clause 5, Article 27 of Resolution No. 326 also stipulates: "The litigants in a marriage and family case who have a dispute over the division of common property of husband and wife, in addition to paying the first instance civil court fees prescribed At Point a, Clause 1, Article 24 of this Resolution, they must also pay court fees for the disputed property as in civil cases with a quota corresponding to the value of the property they are divided. Thus, if the defendant's request to divide common property is accepted by the Court, the defendant must pay court fees corresponding to the value of the property portion that the defendant is divided and if the request to divide the defendant's property is If the petition is not accepted by the Court, the defendant must pay first instance civil court fees at a nominal value, unless the defendant is exempted or does not have to pay first instance court fees. Forcing the defendant to pay court fees is to comply with the regulations on the obligation to pay first instance civil court fees prescribed in Clause 1, Article 147 of the Civil Procedure Code; that is: "The litigant must bear the first instance court fee if their request is not accepted by the Court, except in cases where they are exempted or do not have to pay the first instance court fee."

Second interpretation, according to the provisions of Point b, Clause 5, Article 26 of Resolution No. 326, litigants in a marriage and family case with a dispute over the division of common property of husband and wife must pay court fees for the property portion. Disputed assets, as in civil cases, have a quota corresponding to the value of the asset they are divided. Therefore, in case the defendant requests to divide common property but is not accepted by the Court, the defendant does not have to pay court fees.

* Problems with calculating court fees when the Court recognizes the litigant's agreement

For a civil case, at the conciliation session, if the defendant agrees to fulfill his obligations to the plaintiff (for example, the defendant agrees to pay the plaintiff's debt), the plaintiff is obliged to pay civil court fees. Are not. This issue still has different interpretations.

The first understanding, Clause 1, Article 147 of the 2015 Civil Procedure Code indicates: “1. Litigants must pay first instance court fees if their request is not accepted by the Court, except in cases where they are exempted or do not have to pay first instance court fees. To specify this regulation, Clause 2, Article 26 of Resolution No. 326 indicates: “2. The defendant must bear all first-instance civil court fees in case all of the plaintiff's requests are accepted by the Court. Because the plaintiff's request was accepted by the defendant, the defendant must bear all (100%) of the court fees, if the plaintiff does not have an agreement to pay the court fees on behalf of the defendant.

Second understanding, the provisions of Clause 1, Article 147 of the 2015 Civil Procedure Code, Clause 2, Article 26 of Resolution No. 326 are general provisions, so applying this provision to specific cases where the litigants have agreed to resolve the case. The case before the trial to force the defendant to pay 100% of the court fees is not accurate. Specifically, in case the litigants agree to resolve the case before the trial opens, the court fee will be calculated later.

“Before opening the trial, the Court conducts mediation; If the litigants can agree with each other on resolving the case, they will only have to pay 50% of the first instance court fee specified in Clauses 1 and 2 of this Article (Clause 3, Article 147 of the 2015 Civil Procedure Code). Similarly, Clause 7, Article 26 of Resolution No. 326 indicates: "If the litigants reach an agreement on resolving the case in case the Court conducts conciliation before opening the trial, they must pay 50% of the penalty. Court fees, even for cases without quotas. Thus, the phrase "they only have to bear 50% of the first instance court fee" or "must bear 50% of the court fee, even for cases without a quota" should be understood as "all parties are "including the plaintiff, defendant, and people with related rights and obligations (if any)" when participating in the negotiation and conciliation process in the case, not just a litigant with some obligation. Because, during mediation, the litigants have the right to negotiate and agree with each other to resolve the case, the Court only acts as an intermediary and the Court only makes a decision to support the litigant's agreement without does not make any binding decisions (including deciding which litigant must bear court costs).This demonstrates equality in the rights and obligations of litigants when participating in proceedings. Whether or not a case can be reconciled depends on the parties' agreement. Only when the plaintiff's request is accepted by the Court (i.e. in case the Court resolves the case at trial and with a verdict) will the defendant have to bear the entire court fee. Therefore, the plaintiff must bear 25% of the court fees as the defendant.

Similarly, if the defendant accepts the plaintiff's request. Through mediation, the defendant agrees to pay all court fees, but if the defendant is exempt from court fees, the defendant must pay 25% of the civil court fees according to regulations. This is the part of the court fee that the defendant pays on behalf of the plaintiff. Because, according to the provisions of Clause 5, Article 147 of the 2015 Civil Procedure Code, "In a case where a litigant is exempted from first instance court fees, the other litigants still have to pay the first instance court fees they must bear according to the provisions of Clause 1 , 2, 3 and 4 This”. At the same time, Clause 7, Article 26 of Resolution No. 326 stipulates:

“In cases where the litigants agree that one party shall bear all the court fees or part of the court fees payable and the party that bears all the court fees or part of the court fees shall be exempted from paying court fees, then The court will only consider waiving court fees for the portion that the exempted person must bear according to the provisions of this Resolution. Court fees and charges that that person accepts to pay on behalf of others are not exempt from payment. In practice, there are cases where the defendant agrees to pay all court fees, however, because the defendant is exempt from court fees, the Court has waived all court fees for the litigant in the case, which is not done in accordance with regulations of the law, causing losses to the state budget.

* The problem is if a litigant is eligible for exemption or reduction of court fees but the litigant does not file a request for exemption or reduction of court fees, can the Court consider the exemption or reduction of court fees?

According to the provisions of Article 14 of Resolution No. 326, people eligible for exemption or reduction of court fees must make a request for exemption or reduction of court fees for the Court to consider. However, the question is, if a litigant is eligible for exemption or reduction of court fees but the litigant does not file a request for exemption or reduction of court fees, will the Court consider the exemption or reduction of court fees? The Court's current trial practice shows that there are two ways to resolve this issue.

The first way, although the litigant does not have an application for exemption from court fees, but in the case of exemption, the Judge assigned to resolve the case or the Trial Council will consider exempting or reducing court fees for the litigant, without applying the law. The law is too mechanical and rigid.

Second, if the litigant does not have an application for exemption or reduction of court fees, the Judge assigned to resolve the case or the Trial Council will not consider exempting them from court fees.

The author believes that the regulation that litigants must apply for exemption or reduction of court fees is a new regulation of Resolution No. 326 compared to previous regulations on court fees and charges. Therefore, the Judge assigned to resolve the case, the Trial Council and the litigants need to comply and comply with this regulation to ensure uniformity in the application of the law and limit arbitrariness in applying it apply the law. In order for the exemption or reduction of court fees to beimplemented in accordance with the provisions of law, the Judge, when assigned to resolve the case, must explain to all litigants about the cases of exemption or reduction of court fees as well as the guide the procedures they must follow to request exemption or reduction of court fees before holding a conciliation meeting or before deciding to bring the case to trial.

2.2 Regarding civil fees

* The regulations are unreasonable and inconsistent in cases where the applicant withdraws the application

According to the provisions of the 2015 Civil Procedure Code, "Litigants in civil matters are agencies, organizations and individuals, including the person requesting to resolve the civil matter and the person with related rights and obligations." In particular, "The person requesting to resolve a civil matter is the person who requests the Court to recognize or not recognize a legal event as a basis for arising civil, marriage and family, or business rights and obligations.", trade, labor of themselves or of other agencies, organizations or individuals; request the Court to recognize your civil, marriage and family, business, trade and labor rights."Thus, when a litigant requests the Court to resolve an issue or request recognition of a legal event related to the rights and benefits they are requesting, what they need to do is will file a petition with documentary evidence at the Court to request recognition of a certain legal event.

At the same time, in the process of resolving litigants in civil cases in general and in civil matters in particular, they have the right to "Keep intact, change, supplement or withdraw requests according to the provisions of this Code". Thus, both the plaintiff in a civil case and the requester in a civil case have the right to withdraw the lawsuit or request filed in court. At that time, the Court will issue a decision to suspend the resolution of the case or a decision to suspend the consideration of the request.

However, according to the provisions of Article 217 of the 2015 Civil Procedure Code, "The plaintiff withdraws the entire lawsuit request or the plaintiff has been duly summoned for the second time but is still absent, except in cases where they request a trial in absentia" due to force majeure events or objective obstacles; At the same time, Clause 3, Article 218 of the Civil Procedure Code stipulates: "In case the Court issues a decision to suspend the resolution of a civil case because the plaintiff withdraws the entire lawsuit request specified in point c and other cases specified in Points d, dd, e and g, Clause 1, Article 217 of this Code, the court fee advance paid by the litigant will be returned to them.". Thus, in case the plaintiff withdraws the entire lawsuit request, the court fees that the litigant has paid will be refunded to them. Meanwhile, in the case of a person requesting to resolve a civil matter regarding a missing person in the process of resolving a civil case, the litigant in the civil matter requests to withdraw the request, based on stipulated in Point c, Clause 2, Article 366 of the 2015 Civil Procedure Code, the Court will issue a "Decision to suspend the consideration of the petition and return the petition, accompanying documents and evidence if the requester withdraws the request"; However, in this case, according to the provisions of Resolution 326/2016/UBTVQH14:“In case the Court issues a decision to suspend the consideration of the petition according to the provisions of Point c, Clause 2, Article 366, Article 382, ​​Clause 3, Article 388, Clause 3, Article 392 of the Civil Procedure Code, the advance payment shall be Court fees paid are added to the state public fund. Thus, in the process of preparing to consider the request, if the litigant has a request to resolve a civil matter and withdraws the request, the Court will issue a decision to suspend the resolution of the civil matter. In this case, the fee will be charged be confiscated from state funds.

* There are no regulations on handling fees in some specific cases

Clause 5, Article 18 of Resolution 326/2016/UBTVQH14 dated December 30, 2016 stipulates: "In case the Court issues a decision to suspend the consideration of the petition according to the provisions of Point c, Clause 2, Article 366, Article 382, ​​Clause 3 Article 388, Clause 3 Article 392 of the Civil Procedure Code, the Court fee advance paid will be added to the state public fund. Thus, with the way of making laws in the form of listing cases of appropriation of State funds, the cases specified in Point c, Clause 2, Article 366, Article 382, ​​Clause 3, Article 388, Clause 3, Article 392 of the Civil Procedure Code are regulated. It is clear that the fee paid by the requester must be added to the State public fund. So the question is, if the cases are not listed above, will the Court have to return the fee to the litigant or add it to the State public fund?

Clause 2, Article 367 of the Civil Procedure Code indicates: “2. ... If the requester is absent for the first time, the Court will postpone the meeting, except in cases where the requester requests the Court to resolve the civil matter in their absence. In case the requester has been duly summoned for the second time but is still absent, he/she is considered to have abandoned the request and the Court shall issue a decision to suspend the resolution of the civil matter;”

Clause 3, Article 397 of the Civil Procedure Code indicates: “3. In case after mediation, the husband and wife reunite, the Judge shall issue a decision to suspend the resolution of their request."

Clause 5, Article 397 of the Civil Procedure Code indicates: “5. In case the conciliation and reunification fail and the litigants cannot agree on the division of property, the care, upbringing, care and education of children, the Court shall suspend the resolution of the civil matter regarding recognition of consent divorce, child custody agreement, property division upon divorce and accepting the case to resolve it.”.

Above are some cases where lawmakers have not had specific regulations. This easily leads to inconsistent application of the law and requires specific or additional guidance for consistent application of the law.

2.3 Regarding other litigation costs

In practical work, the author finds that when the Court accepts and resolves civil cases, marriage and family cases, and commercial business cases, in addition to the litigants having to pay court fees and charges according to stipulated in Articles 143 to 150 of the Civil Procedure Code, the litigant must also bear other procedural costs specified in Articles 151 to 168 of the Civil Procedure Code. According to Article 169, "Based on the provisions of this Code, the Standing Committee of the National Assembly specifically regulates the costs of judicial entrustment abroad, the costs of on-site review and appraisal, and the costs of appraisal", asset valuation; expenses for witnesses and interpreters; оther procedural costs prescribed by other laws and exemption or reduction of procedural costs during the case resolution process.

Through reviewing the legal regulations related to this issue, currently court fees and charges have been detailed in Resolution 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee. The National Assembly regulates the rates of collection, exemption, reduction, collection, payment, management and use of court fees and charges. As for other litigation costs, the National Assembly Standing Committee has not yet issued specific regulations.

Specifically, Article 155 stipulates: "The advance payment for on-site appraisal costs is the amount of money that the Court temporarily calculates to conduct the on-site appraisal. On-site appraisal costs represent a necessary and reasonable amount of money to be paid for on-site appraisal work based on the provisions of law. However, up to now, there is still no guiding document stipulating how much the on-site appraisal costs are, thereby leading to discretion in applying the law. In mine actual work, author has noticed that in the same locality, the Courts in each place apply it differently. Even the Judge, when conducting an on-site appraisal, also sets costs for on-site appraisal activities different place.

Typically, when the Court conducts an on-site appraisal, a number of costs will arise such as: Travel costs; Expenses for representatives of the Commune People's Committee, Commune Police, hamlet and region representatives to participate in on-site review and appraisal; costs for Court officials; costs for other relevant agencies to participate in on-site review and appraisal; Costs of renting relevant facilities and techniques; Costs of measuring and drawing houses and land; Schema cost…

For the cost of renting related facilities and techniques, the cost of measuring and drawing houses and land (costs with invoices and documents), you can base on the invoices and documents to make the payment. As for travel expenses, expenses for representatives of the Commune People's Committee, Commune Police, hamlet and region representatives to participate in on-site review and appraisal; Expenses for Court staff, expenses for other relevant agencies participating in on-site review and appraisal, etc., there are currently no legal regulations stipulating which amounts can be spent and which cannot be spent. , what is the specific spending level? Therefore, the Court can spend any amount of money based on sentiment or the Court can not spend because it believes that this is the responsibility of each agency in performing public duties. This has led to the Court's discretion in collecting and spending other litigation costs, especially costs related to on-site review and appraisal as mentioned above..

Just like the costs of asset valuation and asset appraisal, in the Civil Procedure Code in Articles 163, 164, 165 and 166, there is no specific regulation on the level of expenses for members of the valuation council, the cost of property valuation activities in each civil case is not consistent and the spending of money on valuation council members is based on the Judge's feelings.

In addition, when collecting these other litigation costs, the Court issues a receipt to the litigant, but there are no regulations stipulating how much to collect? As for expenses, there are currently no legal regulations on how the Court will spend, how much to spend, what expenses can and cannot be spent... At this time, the Judge points out a list of litigation costs. Other items include a general list of expenses, no invoices, no documents, no receipts, no list of payment receipts...

3. Some recommendations to improve the law on chanting costs

3.2 Withdrawal of fees

* In case the requester withdraws the entire request

The author believes that in case they no longer request settlement, it is reasonable to temporarily return the costs to them. Because, State encourages individuals to freely work together to resolve cases and withdraw lawsuits. Therefore, the author finds that the provisions in Clause 3, Article 218 of the 2015 Civil Procedure Code are reasonable and consistent with reality. In fact, many buildings have had the same application and when people asked to withdraw their petition, the fee was returned to them. To ensure consistency in the legislative process as well as law application, the author proposes to amend Clause 5, Article 18 of Resolution 326/2016/UBTVQH14 dated December 30, 2016 as follows:

“5. In case the Court issues a decision to suspend the consideration of the petition according to the provisions of Point c, Clause 2, Article 366, of the Civil Procedure Code, the Court fee advance paid will be returned to them.".

* In case the law does not have specific regulations on fee handling

Besides, there are cases that are not specifically regulated by law, which also require timely research and supplementation for consistency in the process of applying the law.

In Clause 2, Article 367 of the Civil Procedure Code, it is stipulated: “2. ..If the requester is absent for the first time, the Court will postpone the meeting, unless the requester requests the Court to resolve the civil matter in their absence. In case the requester has been duly summoned a second time but is still absent, he or she is considered to have abandoned the request and the Court shall issue a decision to suspend the resolution of the civil matter;

This case should be applied similarly to the resolution of civil cases specified in Clause 2, Article 218 of the 2015 Civil Procedure Code: "In case the Court issues a decision to suspend the resolution of civil cases according to the provisions of point a and Point b, Clause 1, Article 217 or because the plaintiff has been duly summoned for the second time but is still absent as prescribed in Point c, Clause 1, Article 217 of this Code, the court fee advance paid by the litigant be added to the state public fund”. This is also completely consistent with reality because they waived the right to request, meaning they were at fault leading to the suspension of the case. If they had to return the advance fee, it would lead to even more difficulties during the execution of the sentence.

In Clause 3, Article 397 of the Civil Procedure Code, it is stipulated: “3. In case after mediation, the husband and wife reunite, the Judge shall issue a decision to suspend the resolution of their request.”.

In Clause 5, Article 397 of the Civil Procedure Code, it is stipulated: “5. In case the conciliation and reunification fail and the litigants cannot agree on the division of property, the care, upbringing, care and education of children, the Court shall suspend the resolution of the civil matter regarding recognition of consent divorce, child custody agreement, property division upon divorce and accepting the case to resolve it”.

In both of these cases, it is appropriate that the court fees advanced should be allocated to the State fund. Because the court has conducted procedures to resolve the civil matter, moreover, the cause of the suspension comes from the change of will of the litigants.

Therefore, to ensure consistency in the process of applying the law, the author recommends adding these cases to Clause 5, Article 18 of Resolution 326/2016/UBTVQH14 dated December 30, 2016, specifically as follows: after:“5. In case the Court issues a decision to suspend the consideration of the petition according to the provisions of Clause 2, Article 367, Clauses 3 and 5, Article 397, Article 382, ​​Clause 3, Article 388, and Clause 3, Article 392 of the Civil Procedure Code, then Court fee advances paid are added to the state public fund”.

3.3 Regarding other litigation costs

The author finds that there is a need for more specific regulations for cases where the Court needs to value both the common property and each part of that property related to the disputed property, in the following direction:

First, it is necessary to stipulate the valuation agency's responsibility to determine litigation costs for each piece of property requested. In other words, the valuation agency needs to clearly state the valuation costs for each disputed asset. How much is the basis for the Court to determine the costs that the litigants must bear?

Second, it is necessary to stipulate that in necessary cases, even though the litigants do not request, in order to resolve the case comprehensively and objectively, the Court has the right to request valuation of relevant assets. Require the valuation agency to separate valuation costs for each asset. As a result of the settlement, if the litigants neither request nor receive a share of the property that the Court has requested for further valuation, the Court will bear the valuation costs for that portion of the property.

Determining the obligation to advance valuation costs in cases of this type is similar to above. More broadly, the determination of the obligation to pay advances and the obligation to bear other types of litigation costs listed in section 2, chapter IX of the Civil Procedure Code also follows this principle, which will ensure comprehensiveness, as well as the rights and interests of the litigant.

Inaddition, handling valuation costs is not only a problem for those in charge, but in some cases, this is also a "challenge" for the litigants in the case. As summarized above, litigation costs are the amount of money the litigant and participants in the proceedings pay to the state to resolve the case, and if the litigant does not pay these litigation costs, it will almost certainly happen, will certainly affect the case resolution process. Reality shows that other litigation costs such as valuation, appraisal, and appraisal costs are sometimes not a modest number and not all litigants are able to meet them. Thus, the litigant is faced with the question of whether or not he should continue pursuing the proceedings or give up protecting his rights and interests.

Through studying the regulations in Chapter IX of the Civil Procedure Code 2019, author find that there are currently no regulations on exemption or reduction of advances or other procedural costs, which are costs other than fees and court costs prescribed by the Court in Section 2, Chapter IX of the 2015 Civil Procedure Code. Thus, the ability to pay advance proceedings has created a barrier for litigants who want to take measures to prove their claims. is well-founded, protecting their legitimate rights and interests, leading to the consequences of many cases having to be suspended, and more broadly, limiting people's ability to access justice, especially those who are disadvantaged people in society such as the elderly, poor households, families with contributions to the revolution, relatives of martyrs, ethnic minorities, etc.

Firstly, to overcome the situation of not knowing how to determine the market price or the Valuation Council only basing on the price framework issued by the Provincial People's Committee and not setting the price close to the market price, before proceeding, When conducting valuation, the Valuation Council needs to refer to local prices within a certain range; How does the State auction similar land areas?... or based on the value of assets provided by the parties to divide the average value; Before pricing, it needs to be clearly explained let the litigants know the consequences of asset valuation and handing over the assets so that the litigants can set a suitable price. The Valuation Council only determines the price according to the price bracket when it has collected sufficient evidence to prove that the price bracket is close to the market price and the documents collected to prove this must be accompanied by the asset valuation minutes, assets, asset valuation conclusions sent to the Court and litigants.

Second, to overcome the situation where litigants oppose property appraisal and valuation activities, there needs to be coordinated measures between the Valuation Council, the Court, local authorities, and Commune Police. If someone acts as an obstruction, the Valuation Council needs to request the Court to apply temporary emergency measures to force the person to perform or not perform a certain act corresponding to the provisions of Article 127 of the Civil Procedure Code. 2015. Point c, Clause 2, Article 20 of Ordinance No. 02/2022 stipulates a fine from 500,000 VND to 10,000,000 VND for the act of "not implementing or obstructing the implementation of asset valuation and appraisal decisions", production, review, and on-site appraisal. This is the first sanction that specifies the litigant's responsibilities when not complying with the Court's decision.

Third, it is necessary to improve the legal regulations in the appraisal and valuation of specific assets in terms of expenditure levels for Council members, and have income and expenditure levels for specific appraisal and valuation cases. For cases where revaluation or on-site appraisal is required due to no fault of the litigant, it is necessary to specifically stipulate who must bear the appraisal and valuation costs.

Fourth, it is necessary to stipulate the application time for valuation conclusions according to Circular No. 28/2015/TT-BTC dated March 6, 2015 of the Ministry of Finance promulgating Vietnam valuation standards No. 05, 06 and 07.

Fifth, to ensure strict control of tax loss in the transfer of land use rights, local finance departments, land use rights registration offices, and natural resources and environment departments need to have the Continuously update prices for land use rights transfer contracts that have been determined by the Tax Department to collect taxes on land areas corresponding to each location in the area for the Valuation Council to refer to before making an announcement, an accurate price, to ensure that all appraisal and valuation activities in the future are closely controlled so that the resolution of the case is accurate, objective, and minimizes the impact on rights and interests, legitimate interests of the parties involved.

References:

1. Gramatikov M., Tilburg Institute for Interdisciplinary Studies of Civil Law and Conflict Resolution Systems. (2010). A Handbook for Measuring the Costs and Quality of Access to Justice. Belgium: Maklu.
2. Pleasence, P., Coumarelos, C., Forell, S. and McDonald, H. (2014). Reshaping Legal Assistance Services: Building on the Evidence Base. Australia: Law and Justice Foundation of New South Wales..
3. Binh Tam Law Office. Attorney Fees. Access at // URL: http://www.luatbinhtam.com/dich-vu-luat-su-2/phi-luat-su-1.(Date of request 21.10.24)
4. M.Ramatikov, Barendrecht, M., Verdonschot, J. H. (2011). Measuring the costs and quality of paths to justice: Contours of a methodology. Hague Journal on the Rule of Law, 3, 30.
5. Nguyen Bich Thao (2018). Justice and access to justice in civil proceedings. In Prof. Dr. Science. Dao Tri Uc - PhD. Nguyen Cong Giao, editor, Justice and the right to access justice - Some theoretical and practical issues. Hanoi: Hong Duc Publishing House, p.251.
6. Nguyen Thi Thu Thuy(2022). Analyzing the costs of accessing ti Civil proceedings, Institute of State and Law
7. Duong Tan Thanh, Judge of the People's Court of Duyen Hai town, Tra Vinh province (Article published in Legislative Research Journal Publication No. 12 (412), June 2020).  Article source: // URL: http://www.lappap.vn/ (Date of request 21.10.24)
8. Huynh Xuan Tinh - Master Ly Son Thanh Phong, People's Court of Vi Thanh City, Hau Giang province. Fees in the process of resolving civil matters - some problems and recommendations for improvement. August 16, 2022