Voluntary compliance with proceedings in the Civil Proceeding Code 2015 by plaintiffs, defendants, and related persons in the case is essential. Especially, involving parties should know the meaning of a legitimate summon. Through the Precedent No. 12/2017/AL, TNTP is happy to share with readers our view of how to determine the first legal summon after the hearing is postponed.
1. SUMMARIZING THE LEGAL PRECEDENT
- Q Joint Stock Company (“Q Company “) and T Company Limited (“T Company“) signed two (02) rubber seedling sale contract where T Company would sell Q Company 400,000 two-leaf gourd rubber seedlings for 2,800,000,000 Laos Kips.
- Q Company exhibited that during the performance of the contract, T Company breached the contract and borrowed Bare Stump seedling, equipment and fertilizer from Q Company. Q Company, therefore, sought an order for VND1,720,888,500 compensation from T Company against its breaches of contract, penalties and costs of Stump seedling, equipment and fertilizer.
- However, T Company asserted it fulfilled all obligations during the term of the contract. Meanwhile Q Company, because of lack of workforce and equipment, failed to receive seedlings when T Company delivered in the time as provided in the contract. As a result of the delay, a number of seedlings were dead. At the trial, T Company made a counterclaim from Q Company for VND4,967,026,000 (against cost of 400,000 seedlings under the contract and cost of the timber garden and the land pots). For the seedlings T Company had borrowed, T Company agreed to give back sufficient numbers of trees rather than cash compensation.
- At the First Instance trial, the Quang Tri Province Court in the Verdict No. 08/2013/KDTM-ST dated 4 September 2013 (“First instance Verdict“), denied the motion of T Company. This verdict, afterwards, was appealed by both T Company and Quang Tri Province Procuracy. The Court of Appeal of Supreme Court in Da Nang, in its determination, (i) dismissed the appeal of T Company, (ii) denied of appeal of Quang Tri Province Procuracy, (iii) affirmed the given order with the reason that representative and lawyer of T Company did not appear at the hearings though they were validly summoned twice.
- T Company continued to ask the Court of Cassation to conduct the judicial review of the appealed order. The Justice Council of the Supreme Court determined that the appeal of Chief Justice of Supreme Court was accepted, (ii) both verdict by Quang Tri Province Court and Court of Appeal of Supreme Court in Da Nang were set aside and (iii) the case was remitted to Quang Tri Province Court for hearing again in accordance with the law.
- Accordingly, the Council of Judges of the Supreme People’s Court said: According to the minutes of the Appellate court dated 26 November 2013, at the hearing, all parties appeared according to the summons. However, the judge decided to postpone the hearing for the time the parties could provide additional evidence. In the next hearing, reopened 26 February 2014, the defendant and his lawyer did not appear in the courtroom. In the hearing that is reopened following the hearing the judge determined postponement because of his needs, if the defendant and his lawyer did not appear in the courtroom it should be deemed as their first absence. Accordingly, the court of appeal should determine that this is the first absence of the defendant and his lawyer in accordance with Clause 1, Article 199.1 and Article 266.2 in Civil Proceedings Code 2015 and therefore the hearing should be delayed. The court of appeal in fact stated that this was the second absence of the defendant and his lawyer, due to which it dismissed the case, which determination is absolutely not appropriate with Articles 199, 202, 266 in Civil Proceedings Code 2015. As a result, the defendant had been deprived of the right to appeal the case which seriously damages his legitimate interests.
2. CASE COMMENTS
Based on the summary of the Legal Precedent, we have some comments as follows:
When the Court decides to postpone the appellate court hearing, there are two (02) main reasons from (i) The Court – when the Court decides to actively postpone the court hearing for specific reasons, or (ii) the parties or the representatives, the defender of legitimate rights and interests of involved parties being absent after they have been validly summoned by the Court.
Case 1: The reason for postponement the court session is from the Court
In this case, the Trial Panel may actively postpone the court hearing because the Court has not gathered sufficient evidence, or the representative of the Procuracy is absent, or due to other reasons specified by the Court in the Decision of postponement of the court hearing. Because the reason of the postponement of the court hearing is from the Trial Panel’s Decision, the absence of the involved parties or their representatives and the defender of legitimate rights and interests of the parties in this court session will not be considered as the absence for the first time.
When the court session is opened for the second time but the involved parties or their representatives or the defender of their legitimate rights and interests continue to be absent after the court validly summoned, they will be considered as absent for the first time.
When the court session is opened for the third time and the involved parties or their representatives and the defender of their legitimate rights and interests continue to be absent after the court validly summoned, they will be considered as absent for the second time.
Case 2: The reason for the postponement of the court hearing is from the absence of the appellant or their representative or the defender of legitimate rights and interests after being validly summoned by the Court for the first time.
In this case, the Court shall postpone the trial due to the absence of the appellant or their representative or the defender of legitimate rights and interests after the first valid summon of the Court. Therefore, after the trial is opened for the second time, the appellant or their representative or the defender of legitimate rights and interests continue to be absent after being validly summoned by the Court will be considered absent for the second time.
Regarding the legal consequences of the appellant’s the second time absence after being validly summoned by the Court, according to the stipulations of Clause 3, Article 296 of the Civil Procedure Code 2015, the Court will consider the appellant giving up the appeal and the Court suspends the appellate trial against the appellant’s request for appeal. Therefore, it is important to determine the appellant is absent for the first time or the second time after being validly summoned by the Court in order to avoid suspending the appellate trial, and to determine this, it is necessary to clearly identify the cause of the postponement of the trial.
Thus, this is the view of the Supreme People’s Court on determining the case that the parties are validly summoned for the first time after the Court has postponed the trial.
3. PRACTICAL APPLICATION
For applying in practice, we recommend involving parties, especially the appellants:
- When validly summoned by the Court, the involved parties, especially the appellants or their representatives or lawyers need to schedule for attendance in the appellate hearing, because they are the object of the appeal, the rights of the object are depended on the appeal in the proceedings process. Even if the involved parties had come to the courtroom but the judge decided to postpone the hearing afterwards, you at least would know the reasons for the postponement, never experience suspension like the case above.
- In other similar cases, if the involved parties were absent after they were validly summoned twice and the appellate file was dismissed once the judge postponed the first hearing, they, based on Precedent No. 21/2018/AL, could submit to the court of cassation to protect their legitimate rights and interests.
Above are our comments on the Precedent No. 21/2018/AL. We do hope that this article is useful for you.
Best regards.
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Lawyer Nguyen Thanh Ha
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