Procedures for settling business and commercial disputes at court of first instance in Vietnam today

iness relations. Secondly, in practical terms, the study of the current state of law and the practical application of the law on business and commercial disputes settlement procedures at the Court of First Instance should be viewed logically the issues raised in the theoretical research section, in which, it is necessary to pay attention to the right to choose of business entities for judicial proceedings at the Court; the parties' right to self-determine during the process of settling business and commercial disputes at the Court of First Instance. Thirdly, on the basis of theoretical and practical research, it is necessary to propose directions and solutions to improve the law on business and commercial disputes settlement procedures at the Court of First Instance- the first stage, This is especially important and significant in deciding the settlement of business and commercial disputes according to judicial procedures in court. 1.2. Research theoretical basis 1.2.1. The theories applied: The thesis is studied based on the following theoretical basis: The theory of market economy, international economic integration, respect and assurance of business freedom; Theory of the Rule of Law; Theory of judicial reform; Theory of the law of Civil Procedure regulating the settlement principles and procedures for resolving business and commercial disputes at the Court of First Instance. 1.2.2. Research questions: The thesis is developed with key questions clarifying the purpose of the thesis, which are: First, theoretically: What are the concept and characteristics of the procedures for resolving business and 8 commercial disputes at first instance courts? What are the legal theoretical issues about the procedures for resolving business and commercial disputes at Court of First Instance? What are the affecting factors and requirements for the law on procedures for resolving business and commercial disputes at Court of First Instance? Second, practically: What is the current state of Vietnamese law on procedures for resolving business and commercial disputes at first instance courts? What is the current practice of the application of procedures for resolving business and commercial disputes at first instance Courts in Vietnam? Evaluation of the advantages and limitations that exist? Third, About the direction and solution: In order to improve the law on procedures for resolving business and commercial disputes at first instance courts in Vietnam, what direction should be determined? What are the solutions to improve the law and enhance the effectiveness of law enforcement on procedures for resolving business and commercial disputes at first instance courts in Vietnam? 1.2.3. Research hypothesis: The thesis is studied based on the following research hypothesis: (1) In the context of the socialist-oriented market economy in Vietnam and international economic integration, the arising of conflicts and disputes over benefits from business and commercial relations is inevitable. (2) The legal basis for the procedures for resolving business and commercial disputes at the First Instance Courts in Vietnam is currently incomplete, incomprehensive, and unclear about the appropriateness of the settlement procedures with the nature of economic relations. (3) In practice, the current legal status on this issue still has problems and shortcomings in the implementation process; (4) Some studies on this issue, but most of these were done long ago, are so far no longer relevant to reality. 1.2.4. Research approach: The thesis approaches and researches on the basis of civil procedural law with the aim towards the conformity of legal proceedings with the nature of business and commercial disputes in market economic conditions, respecting the right to self-determination and freedom of business by business entities. Hence, proposing directions and solutions to improve the law and enhance the efficiency of the application of procedures for resolving business and commercial disputes at the Court of First Instance in Vietnam. 9 Conclusion of Chapter 1 The results of the review of the research situation and the clarification of the research theoretical basis show that many theoretical and practical aspects have been clarified. This is an important resource that will be inherited in the process of researching the thesis topic. In addition, there are many issues that have not been deeply studied, contained many different opinions or have not been mentioned. Hence, the thesis sets its research objectives and tasks to overcome the un-researched gaps on groups of problems related to the thesis topic and complete research objectives and tasks. Chapter 2 THEORETICAL ISSUES ON THE PROCEDURES FOR RESOLVING BUSINESS AND COMMERCIAL DISPUTES AT THE COURT OF FIRST INSTANCE 2.1. Concept and characteristics of the procedures for resolving business and commercial disputes at the court of first instance 2.1.1. Concept, characteristics of business and commercial disputes The concept of business and commercial disputes in different political regimes, different stages of economic and social development and different countries will be understood differently. From the Black’ law Dictionary by West Pub Co. published in 1999, the term "dispute" is understood as: "contradiction, disagreement; contradiction of claims or rights; A claim of a right, request or claim from one party is responded by a contradictory request or argument of the other party ”. According to the definition of Permanent Court of International Justice in its decision on the Mavromematis dispute in 1924: “A dispute is a legal or actual disagreement, a conflict of legal opinion, or a conflict of interest between two or more people" [151, p.10]. According to the Vietnamese Dictionary, dispute is understood as: “Disagreement; doing or performing some contradictory problems; scramble for; fighting for something that has not known to belong to which side” [51]. From the above definitions, under a legal perspective, dispute is understood in the most general sense as: “Business and commercial disputes are conflicts of rights and obligations between business entities when they engage in commercial and business legal relations”. In countries around the world, there are also 10 many different opinions about disputes in general and disputes arising from business and commercial activities in particular. Most countries with developed market economies often use the term "business disputes" to refer to disputes arising between actors in the business relationship seeking for profits. Business and commercial disputes, no matter what angles are viewed, exhibit distinctive characteristics compared to other types of disputes. A business and commercial dispute encompasses the following features: First, disputes arise directly from business and commercial relationships. Second, The subject of one of the disputing parties in business and commercial activities must be a merchant. Third, The subject of a business and commercial dispute when entering a business and commercial relationship must be for profit purposes. Fourth, The manifestation of business and commercial disputes is a reflection of the conflicts of economic interests of the parties. Fifth, although business entities have disagreements and disputes, they always want to preserve well established economic relationships. 2.1.2. The concept of procedures for resolving business and commercial disputes at the Court of first instance The term "solving" is understood as "making it no longer a problem" [51, p.338]. In its simplest sense, “resolving business and commercial disputes is a combination of ways and measures taken by business and commercial relationship actors or through a third person to eliminate conflicts and disagreements about economic interests that arise between them”. In a broad sense, resolving business and commercial disputes is a type of legal relationship governed by civil law, civil proceedings, commercial arbitration, conciliation, and some other relevant legal documents. Currently, according to the law, there are all four popular methods of resolving business and commercial disputes, they are: Negotiation, Conciliation, Commercial Arbitration and Judicial Procedure in Court. According to the Vietnamese dictionary, "procedure" is understood as the common way to do something [57, p.831]. The first instance procedure is the first level of the judiciary that fully reviews the resolution of business and commercial disputes according to judicial proceedings in court. The first instance of business and commercial dispute resolution consists of two main procedures: Procedures for first instance trial preparation and first instance trial proceedings for business and commercial disputes. Thus, through the above interpretation, it can be 11 understood: “The procedure for resolving business and commercial disputes at first instance courts is the way to conduct procedural activities performed by the Court and by subjects participating in the proceedings according to the order and time limit prescribed by law to determine facts that are significant for the resolution of the dispute and on that basis, the Court issues a dependable verdict or decision to resolve the business and commercial dispute in accordance with law ”. 2.1.3. Characteristics of procedures for resolving business and commercial disputes at the Court of first instance Procedures for resolution of business and commercial disputes at first- instance courts have the following basic characteristics: First, procedures for resolution of business and commercial disputes at first-instance courts only arise and are conducted on the basis of the requests of one of the disputing parties to the Court to protect their legitimate rights and interests; Second, the scope and process of resolving business and commercial disputes at the Court of First Instance depends on the litigants' decision-making and self- determination; Third, in the process of resolving business and commercial disputes at the Court of First Instance, the parties are proactive and equal in providing evidence and supporting their claims; Fourth, the results achieved at the end of the business and commercial dispute resolution procedures at the Court of First Instance are judgments or decisions that can be appealed or protested. 2.2. Content of business and commercial dispute resolution procedures at first-instance Court 2.2.1. Procedures for first-instance trial preparation of business and commercial disputes 2.2.1.1. Procedures for accepting business and commercial disputes. Acceptance of business and commercial dispute means that the Court accepts the petitioner's petition and records it in the Court's acceptance book to resolve the business and commercial dispute. The court accepts business and commercial disputes only with the following conditions: First, business and commercial disputes fall under the jurisdiction of the Court; Second, the petitioner has the right to initiate a lawsuit; Third, to satisfy the requirements for the petition and the statute of limitations for lawsuit; Fourth, the business or commercial dispute has not been resolved by a judgment or takes legal 12 effect of a court or other competent agency, unless otherwise provided for by law; Fifth, the dispute which is not agreed by the parties in advance is to be decided according to the commercial arbitration procedure. 2.2.1.2. Procedures for trial preparation and conciliation of business and commercial disputes. To resolve the case, the judge must conduct a series of preparations for the trial of the case within a certain period of time, including all proceedings conducted by the Court to verify and collect evidence, initially evaluate evidence and make necessary decisions in the process of resolving the case, then disclose evidence and conciliation of the case to consider bringing the case to trial. Theoretically, the conciliation and preparation stage for the first instance of business and commercial case should consider the following procedures: First, the procedures for verifying and collecting evidence; Second, on evidence disclosure procedures; Third, on procedures for the application of interim urgent measures; Fourth, on conciliation procedures; Fifth, on making trial decisions. 2.2.2. First-instance trial procedures for business and commercial disputes According to the Vietnamese Dictionary, "First Instance is hearing a case as the Court at the lowest judicial level". "The first instance trial of a civil case is the first civil case trial of the Court". Thus, the first instance trial of business and commercial disputes is the first level of adjudication in the resolution of business and commercial disputes at court. All disputes, if they had to go to trial, must go through this court level. So this is a very important level of adjudication in the adjudicating sequence of an business and commercial dispute. Procedures for conducting first-instance trial for resolution of business and commercial disputes include: (i) Preparing to open the first instance court hearing; (ii) The commencement of the first instance trial; (iii) Question at the first instance court hearing; (iv) Arguments at first instance court sessions; (v) Judgment and sentencing. 2.3. Affecting factors and requirements for business and commercial dispute settlement procedures at first instance Court 2.3.1. Factors affecting business and commercial dispute settlement procedures at the Court of First Instance Firstly, the legal system related to the settlement of business and commercial disputes at first instance courts; Second, the organization of the 13 court system and the independence of judges and people's jurors; Third, the effectiveness of judicial support agencies; Fourth, the capacity of the contingent of cadres and civil servants of the Court. 2.3.2. Requirements for procedures for settlement of business and commercial disputes at first instance courts In order to improve the efficiency of the settlement of business and commercial disputes at first instance courts, it is necessary to set out the following requirements: First, to ensure maximum self-determination of the disputing parties; Second, the settlement of business and commercial disputes must be quick and convenient, minimizing disruption in the production and business process; Third, protecting the reputation of the parties in the marketplace; Fourth, securing factors in business; Fifth, dispute resolution must achieve high enforcement efficiency; Sixth, the cost of dispute resolution is not too high. Conclusion of Chapter 2 Through researching the legal theoretical issues of business and commercial dispute settlement procedures at the Court of First Instance, we can see: (1) The concept of Business and commercial disputes can be approached under different angles and depending on the approach, this concept can have different broad and narrow connotations. (2) Business and commercial dispute settlement procedures at first-instance courts are the way to conduct proceedings performed by the first-instance court and subjects participating in the proceedings according to the order and time limit prescribed by law specified by law. (3) There are many factors that influence the resolution of Business and commercial disputes in Court of First Instance. Chapter 3 LEGAL STATUS AND LAW ENFORCEMENT SETTING BUSINESS AND COMMERCIAL DISPUTES AT COURT OF FIRST INSTANCE IN VIETNAM 3.1. Current situation of legal provisions on setting business and commercial disputes at Court of First Instance in Vietnam today 3.1.1. Current status of regulations on procedures to prepare for court of first instance of business and commercial disputes 14 3.1.1.1. Business entities' right to initiate a lawsuit and the first-instance Court's acceptance of the petition. (1) Agencies, organizations and individuals have the right to initiate lawsuits by themselves or through their legal representatives at competent courts to request protection of their legitimate rights and interests. (2) One or more agencies, organizations or individuals may initiate lawsuits against one or more other agencies, organizations or individuals over one legal relationship or related legal relations for settlement in the same case. (3) When receiving a petition filed in person, the Court shall immediately issue a receipt of the petition to the petitioner. 3.1.1.2. Procedures for accepting business and commercial disputes. After receiving the lawsuit petition and accompanying documents and evidences, if deeming that the commercial business dispute falls under the court's jurisdiction and is in accordance with the provisions on territorial jurisdiction, the judge must immediately notify the plaintiff so that they come to the Court to carry out the procedures to pay the court cost advance in case they have to pay the court fee advance. 3.1.1.3. Procedures for taking temporary emergency measures. Involved parties, their legal representatives or agencies, organizations or individuals that initiate lawsuits as prescribed in Article 187 of this Code have the right to request the Court currently handling such cases to apply one or more provisional urgent measures (provisional urgent measures) specified in Article 114 of this Code to temporarily settle urgent requests of the involved parties, protect life, health, property, collect and protect evidences etc. 3.1.1.4. Procedures for mediation. The Court shall conduct mediation and create favorable conditions for the involved parties to reach agreement on the resolution of civil cases in accordance with law. 3.1.1.5. Procedures for suspending, continuing to resolve and suspending business and commercial disputes. When there is a ground, the Court of first instance may issue a decision to carry out the following procedures: (i) Procedures for suspending the settlement of business and commercial disputes; (ii) Procedures for continuing to resolve business and commercial disputes; (iii) Procedures for suspending the settlement of business and commercial disputes. 3.1.2. Situation of regulations on trial procedures at Court of first instance of business and commercial disputes 15 3.1.2.1. Procedures related to the attendance and absence of the parties to the hearing, the change of procedural position. (1) At the Court of first instance session, it is necessary to ensure the presence of involved parties, their representatives and defense counsels of legitimate rights and interests. (2) In the absence of all participants in the proceedings, the Court shall base itself on documents and evidences in the file to adjudicate in the absence of involved parties and other procedure participants in accordance with law when all conditions are met. (3) When procedure participants are absent from the court hearing but do not fall into the case where the court must postpone the court hearing, the presiding judge of the court hearing must ask if anyone has proposed to postpone the court hearing. (5) In case the plaintiff withdraws the entire petition to initiate a lawsuit, but the defendant still keeps his counter-claim, the defendant becomes the plaintiff and the plaintiff becomes the defendant. 3.1.2.2. Procedures relating to changes, additions or withdrawals of the disputing parties' claims and recognition of the agreement of the disputing parties. (1) At the Court of first instance, the presiding judge will actively ask the disputing parties whether to change, supplement, withdraw part or all of the lawsuit petition, counterclaim or independent request? (2) In case a disputing party withdraws part or all of its request and its withdrawal is voluntary, the trial panel accepts and adjusts the trial for the part of the petition or the whole petition has been withdrawn. (3) At the trial of first instance, the presiding judge continues to ask the disputing parties about whether they can reach an agreement on the resolution of the dispute? If the disputing parties can reach an agreement, the Trial Panel shall issue a decision to recognize the agreement of the disputing parties. 3.1.2.3. Procedures related to ensuring the equality of rights and obligations in civil procedures; ensuring the right to litigate in Court of first instance (1) All agencies, organizations and individuals are equal in exercising their procedural rights and obligations to the Court. (2) Content and methods of litigation at court hearings including presentation of evidence, questions, responses, answers and opinions, arguments on assessment of evidences and details of business and commercial disputes etc. (3) The argument order and 16 procedures are performed in the order prescribed by law. (4) The involved parties respond at the direction of the presiding judge. 3.1.2.4 The procuracy's participation and remarks at Court of first instance sessions on business and commercial disputes. (1) The procuracy shall supervise the law observance in civil procedures and exercise the right to request, propose or protest in accordance with law. (2) The procuracy participates in first instance sessions for civil matters; the first-instance court for cases where evidences are collected by the Court or the object of the dispute is public property, public interest .etc. (3) After participants in legal proceedings have their arguments and responses completed, procurators shall express their opinions on compliance with the procedural law and give their opinions on the settlement of the case. 3.1.2.5. Deliberation and judgment procedures (1) Members of the Trial panel must resolve all matters of the case by voting by majority on each issue. People's jurors vote first, and judges vote last. (2) The minority opinion holder has the right to present such opinion in writing and to be included in the case file. (3) When deliberation is based only on documents and evidences that have been examined, examined at the court session, the results of the questioning at the court session and full consideration of the opinions of the procedure participants. (4) After the judgment has been passed, the Trial panel returns to the court room to pronounce the sentence. 3.2. Achievements in implementing business and commercial dispute settlement procedures at Court of first instance 3.2.1 Achievements in setting business and commercial disputes at Court of first instance (1) According to the annual performance reports of the Supreme People's Court and the research student's own research, the situation of accepting and solving cases in general and business and commercial cases in particular has achieved certain achievements. (2) People's Courts at all levels in the whole country have proactively formulated and implemented plans to implement key tasks of their units and the courts under their management; focused on speeding up and improving the quality of handling and adjudicating all kinds of cases, promote the implementation of the emulation movement under the theme " Phụng công, 17 thủ pháp, chí công, vô tư " (Adoring justice, protecting the law, utmost justice, not for any private interest) with the motto “Gần dân, hiểu dân, giúp dân, học dân” ( "Close to the people, understand the people, help the people, learn the people") in accordance with the spirit of the 2013 Constitution, the Law on Organization of the People's Courts 2014, Resolution No. 49-NQ / TW of the Politburo. 3.2.2. Some limitations and shortcomings in settling business and commercial disputes at the Court of First Instance 3.2.2.1. Limitations and shortcomings in the legal provisions on setting of business and commercial disputes at court of first instance Firstly, on authorization to initiate lawsuits: The contents of Article 186 and Article 189 have contradictions shown that the authorized person is not allowed to sign the petition, but only the petitioner signs the petition is valid. Secondly, on the litigants' obligation to prove: Conflict between Article 6 and Clause 4 of Article 96 of the 2015 Civil Procedure Code in case the involved parties have evidence but they intentionally do not submit and if the Court does not ask them to submit, at the first insta