Cancellation of civil part of criminal judgment: It should be resolved according to criminal proceedings
The People's Court of Can Tho City was not right to apply civil procedure law to re-settle the civil part canceled in the previous criminal judgment; This case must be resolved (the civil part) with a criminal trial.
The representative of the Procuracy said that it must be accepted by the Criminal Court in accordance with the criminal procedure law. However, after receiving the written request of the Procuracy, the Civil Court continues to settle. At the trial, the Council said that the opinion of the Procuracy is not necessary because the civil handling part in the criminal case is still subject to the Civil Procedure Code.
The Supreme People's Court has clear instructions.
Expressing his views on the case, Lawyer Nguyen Van Dung, said: According to Section 5 part II of Resolution 05/2005 of the Judges' Council of the Supreme People's Court, there are three cases where the appellate court declares the cancellation of the civil decision in the criminal case.
First, cancel the civil decision section for re-investigation. Accordingly, this civil part must be transferred to the investigating agency for re-investigation, then will be re-prosecuted and retried.
Second, cancel the civil decision for retrial. Accordingly, this civil part is only transferred to the first-instance court for re-trial and retrial without the re-investigation process of the investigating agency.
In the two cases mentioned above, the re-settlement of the civil part shall be accepted and settled according to the order and procedures for criminal procedures. If it is necessary to verify and collect more evidence, the court shall have the right to take measures to verify and collect evidence in accordance with the civil procedure law.
Finally, cancel the civil part for settlement in another civil case upon request. In this case, the acceptance must be requested and initiated by the involved parties, the settlement shall only comply with the order and procedures for civil procedures.
For the case at the People's Court of Can Tho City mentioned above, the appellate judgment said that the wrongdoing of defendant Kiet (in the criminal case) has given rise to many relationships about property. The first-instance judgment does not specifically resolve the relationships of the arising assets but assigns to one of the involved parties entitled to own is to settle the case not thoroughly, causing disadvantage on the rights of another involved party.
From there, the appellate judgment shall cancel the civil part, hand over the dossier to the People's Court of Can Tho City for re-settlement according to general procedures and in accordance with law.
Based on the appellate judgment, Prof. Dung said that this statement is not really clear, unclear in the case of canceling the civil part for retrial (according to Section 5 part II of Resolution 05/2005, Point b section 4 part II and section 3 part III of the Supreme People's Court's Official Letter 121/2003), or in the case of cancellation of the civil part for re-settlement by another civil case upon request (according to Section 5 part II of Resolution 05/2005, Point b section 4 part II and section 1 part III of Dispatch 121/2003).
However, according to Lawyer Dung, the first-instance court should understand in the direction of canceling the civil part for a first-instance trial, because the decision of the appellate judgment has no phrase to separate the civil part to be resolved by other civil cases when requested, only the phrase "solve this issue again".
Organized as a civil trial
When the case is accepted according to the order and procedures for criminal proceedings against the civil part, the involved parties shall only make requests, provide documents and evidences without having to file lawsuits, counterclaims or independent petitions; There is no procedure for publicizing evidence and conciliating... How to organize a trial like a civil trial.
It is not right to apply civil proceedings for settlement
Dr. Nguyen Van Tien, Deputy Dean of Civil Law Faculty of University of Law Ho Chi Minh City, also said: In this case, the partially cancelled judgment is a criminal judgment and the re-settlement of the canceled part is to settle part of the contents of the criminal judgment, so it is still under the jurisdiction of the Criminal Court.
In principle, when the judgment is partially annulled and the dossier is handed over to the lower court to re-settle the canceled contents of the case according to the general procedure and in accordance with the provisions of law, it is understood that the criminal procedure law is still applied, not the civil procedure law or the administrative procedure law.
According to Dr. Tien, the fact that the People's Court of Can Tho City re-trial according to other procedures is not correct in terms of the grounds arising and the order of settlement. The specialized court shall have the task of resolving a whole case in accordance with the applicable procedural law. The Civil Court is unable to accept and apply civil procedure law to settle a partially cancelled criminal case. The Criminal Procedure Code and the Civil Procedure Code provide different provisions on the order of settlement of criminal and civil cases.
Source: PLO