Currently, the demand for enterprises to initiate lawsuits at Court is increasing rapidly. However, enterprises are often embarrassed when initiating lawsuits because they have no experience in proceedings at the Court. In many cases, after submitting the Petition, the enterprise must add documents several times to be accepted. In general, the enterprise initiating the lawsuit has wasted its own time and caused the court proceedings to be prolonged. Therefore, we would like to share this legal article to guide enterprises through the initiation of a lawsuit at the Court in commercial business dispute cases.
1. Draft a Petition
The first and most important thing that enterprises need to pay attention to when initiating a lawsuit is drafting the Petition. This is an indispensable step because when submitting the dossier, the Court will read the Petition first.
a) Form and content of a Petition
The form and content of the Petition must be expressed in accordance with Clause 4, Article 189 of the Civil Procedure Code 2015. Enterprises may download the form of Petition according to Form No. 23-DS (issued together with Resolution No. 01/2017/NQ-HDTP dated January 13th, 2017 of the Judges Council of the Supreme People’s Court) and fill out the blank information to submit to the Court.
b) Note when drafting a Petition
When drafting the Petition, enterprises should note some of the following issues:
- Summary of the case: Although the form of the Petition does not regulate this section, the enterprise should briefly summarize the case so that the Court can get a preliminary understanding of the dispute. Thereby, the Court may quickly arrange the data and have the original direction to settle the case when considering the documents and evidence submitted with the Petition. Typically, the summary of the case will include the date, month, year of the establishment of the transaction or the signing of the contract; the process of executing the contract, and the reason for arising dispute.
- The basis of the lawsuit: This is an important content in the Petition because the petitioner will present the contents to prove that the legitimate rights and interests have been infringed and the lawsuit request is grounded. The contents in this section usually include the provisions in the contract; the regulations of the law and other relevant regulations.
- Request: This is mandatory content in the Petition because the lawsuit request is the key, which is the content that the parties are currently in dispute. Therefore, enterprises should clearly state the lawsuit request.
2. Documents submitted with the Petition
Pursuant to Clause 5, Article 189 of the Civil Procedure Code 2015, enclosed with the petition, documents, and evidence proving the legitimate rights and interests of the petitioner must be infringed. In case, for objective reasons, the petitioner is unable to submit all documents and evidence attached to the petition, they must submit existing documents and evidence to prove that the legitimate rights and interests of the petitioner have been infringed. The petitioner shall supplement or hand over additional documents and other evidence at the request of the Court during the settlement of the case. As such, the enterprise must submit documents attached to the Petition to prove its claim. This is a mandatory rule of law.
Although according to the above provisions, the petitioner can submit additional documents and evidence in the process of resolving the case, in fact, there are documents and evidence if the enterprise does not submit during the stage of initiating the lawsuit, the likelihood of the court accepting the case will be quite low. Therefore, businesses should note that some documents must be obtained when submitting a petition:
- Contract: In civil disputes, the contract may be in verbal or in another form, so when initiating a lawsuit, even if there is no contract, the petitioner still can be accepted and settled by the Court. However, in commercial business disputes, the contract is important evidence for the Court to consider whether the request in the petition is reasonable and grounded.
- Proof of the Contract’s performance: Evidence of the performance of the contract may be different depending on the type of contract and the lawsuit request. However, the evidence that the enterprise may consider submitting to the court is value-added invoices, records of goods delivery, acceptance minutes, debt reconciliation, a written request for payment, etc. (if any)
3. Filing the lawsuit dossier
a) The submission of lawsuit dossier shall comply with Article 190 of the Civil Procedure Code 2015 as follows:
- Submitted directly to the Court;
- Send to the Court by postal service;
- Send online electronically via the Court’s Portal (if any).
Currently, mainly enterprises still submit lawsuit dossiers directly or by postal service.
b) In addition, enterprises should note that the date of a lawsuit is calculated according to the date of filing the lawsuit as follows:
- Submitting directly: The date of a lawsuit is the date of application in court;
- Submitting by postal service: The date of a lawsuit is the date indicated on the mark of the postal service organization where the lawsuit dossier is sent. In case the date, month, or year of postmarking of the place of sending can not be specified, the date of litigation is the date the litigant submits the petition at the postal service organization. The litigant must prove the date of submission of the petition at the postal service organization. In case the litigant fails to prove it, the date of litigation is the date the Court receives the petition forwarded by the postal service organization.
The more carefully the initiation of lawsuit is prepared, the more the time for proceedings is shortened. Therefore, enterprises should pay attention to drafting the Petition as well as preparing attached documents before sending them to the Court, avoiding the case of adding documents many times, which wastes time and gets trouble for the enterprise itself to initiate a lawsuit.
The above is legal sharings about “Guide enterprises through the initiation of lawsuit at the court”. I hope this article is helpful to you.
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