Counter-claims in civil litigation in vietnam

In civil court proceedings, counter-claim is a fundamental legal mechanism that allows defendants to make formal requests to the court. Such requests typically seek compensation, rights restoration, or rejection of the plaintiff’s claims. Research indicates that defendants often lack understanding of their counter-claim rights during legal proceedings. As a result, they frequently miss opportunities for efficient dispute resolution and optimal protection of their legal interests. This article explores counter-claim in civil cases to help readers gain a clear understanding of the process.

1.What is a counter-claim?

While Vietnamese law has not explicitly defined counter-claim, the term generally refers to the act of counter-suing. According to Clause 3, Article 72 and Clause 1, Article 200 of the 2015 Civil Procedure Code, a counter-claim is a lawsuit filed by the defendant against the plaintiff regarding a related claim, which will be resolved in the same case due to their close connection.

A defendant’s counter-claim only arises when the plaintiff files a lawsuit and the defendant believes that the plaintiff has violated upon their legitimate rights and interests related to the original lawsuit that the court has accepted for settlement. Subsequently, they may submit a formal request to the court to address matters pertaining to the plaintiff’s initial claim within the same civil proceedings.

A counter-claim is essentially a lawsuit request, so it must meet all standard legal requirements for filing a lawsuit. While the defendant’s request could be filed as a separate case, it only qualifies as a valid counter-claim when resolved alongside the plaintiff’s original claim.

2.The defendant’s right to make counter-claim

According to Clause 4, Article 72 of the 2015 Civil Procedure Code, defendants may counter-claim against the plaintiff if their claims are related to the plaintiffs’ claims or set off the obligations claimed by the plaintiffs.

In a case involving a counter-claim, the defendant gains the status of a plaintiff regarding their claim. Consequently, the defendant holds the same rights and obligations as a plaintiff under Article 71 of the Civil Procedure Code.

The defendant’s counter-claim shall be accepted when it satisfies the provisions in Clause 2, Article 200 of the 2015 Civil Procedure Code and is specifically guided in Article 12 of Resolution 02/2015/NQ-HDTP. These requirements include

• Counter-claim is made to clear liability against the plaintiffs’ claims;
• Counter-claim leads to the exclusion of part or all of the plaintiff’s claim; or
• Counter-claim is made if resolved in the same case, making the settlement of the case more efficient, factually accurate and legally compliant.

Since a counter-claim is a type of lawsuit request, it must satisfy both the conditions mentioned above and the standard procedural requirements for any lawsuit to be accepted by the court, including:

• Right to counter-claim: The person making counter-claim must be the defendant in the case and must believe their rights and interests have been violated by the plaintiff’s request in the same civil case.
• Statute of limitations for counter-claims: While Article 184 of the 2015 Civil Procedure Code establishes the statute of limitations for initiating lawsuits, it does not directly address counter-claims. Since a counter-claim functions as a lawsuit request, it must also follow these same statute of limitations as they are essentially lawsuit requests which are outlined in Article 184. Section 3 of this article specifically presents the details of statute of limitations for counter-claims.
• Court’s Jurisdiction: The court accepts counter-claims only when they fall within its jurisdiction under the 2015 Civil Procedure Code. If a defendant’s counter-claim falls outside the jurisdiction of the court handling the plaintiff’s original claim, the current court shall either guide the defendant to file a separate counter-claim with the appropriate court or request that another court with proper jurisdiction handle both lawsuit and counter-claim requests in the same case. Inferior courts do not have jurisdiction to resolve defendant’s counter-claims if such counter-claims fall outside their jurisdictional authority.
• Counter-claim procedure: The defendant must follow the same formal requirements as a regular lawsuit when filing a counter-claim. This includes submitting a written counter-claim requset to the court and fulfilling the obligation to pay advance court fees similar to the plaintiff. TNTP will detail these procedures in the our article.
• The matter must not have been previously resolved by a legally effective court judgment, court decision, or decision from a competent state agency.
• Pre-litigation procedures: Pre-litigation procedures are mandatory steps that must be completed prior to initiating legal proceedings. While Vietnamese law has not yet established specific regulations for pre-litigation procedures for counter-claims, TNTP would like to present the following legal opinion:

As counter-claims constitute legal actions equivalent to initial lawsuit requests, they must adhere to the established pre-litigation procedural requirements. Should the plaintiff withdraw their claim or the court suspend proceedings on the plaintiff’s request, the court maintains responsibility for adjudicating the defendant’s counter-claim. In such instances, the defendant assumes the role of plaintiff and the case will proceed according to standard procedures, with similar acceptance conditions. If the defendant (now acting as plaintiff) has not fulfilled pre-litigation requirements, the court retains authority to return the counter-claim petition pursuant to Point b, Clause 1, Article 192 of the Civil Procedure Code 2015. Furthermore, should the Court proceed without ensuring completion of pre-litigation procedures, the resulting judgment may be annulled under Clause 2, Article 310 of the 2015 Civil Procedure Code.

3.Statute of limitations for counter-claims

The statute of limitations for filing a lawsuit is crucial in civil cases. A counter-claim is legally considered a lawsuit request, therefore, all relevant regulations and conditions pertaining to lawsuits are applicable equally, including provisions regarding the statute of limitations for making claims. If a defendant files a counter-claim after the statute of limitations has expired, the judge will suspend the case’s settlement under Point e, Clause 1, Article 217 of the Civil Procedure Code 2015 but only if other parties request to apply the statute of limitations as per Clause 2, Article 184. This principle is confirmed in Precedent No. 44/2021/AL: when a defendant files a counter-claim and another party proposes to apply the statute of limitations, the court treats the counter-claim as a lawsuit request and applies the corresponding statute of limitations.

The specific statute of limitations for counter-claims follows the provisions in the Civil Code and relevant specialized laws.

Understanding the filing rights, timing, statutes of limitations and related procedures for counter-claims that helps parties in civil cases better understand their rights and obligations. This knowledge contributes to swift and reasonable dispute resolutions. TNTP is pleased to present our next article on “Procedures for requesting counter-claims in civil cases” for detailed reference. For comprehensive support and consultation, please contact TNTP directly.

Sincerely,