THE COURT’S RESPONSIBILITY FOR COLLECTING EVIDENCE IN CIVIL CASES – CURRENT SITUATION AND PROPOSED SOLUTIONS

The 2015 Civil Procedure Code stipulates the responsibility of competent authorities, organizations, and individuals to provide documents and evidence in civil proceedings. However, it leaves a legal gap by not prescribing sanctions against competent authorities, organizations, or individuals who fail to provide such documents and evidence. This is an issue that needs to be addressed.

1. Legal provisions on the responsibility of competent authorities, organizations, and individuals to provide documents and evidence in civil proceedings

Article 7 of the 2015 Civil Procedure Code (CPC) stipulates that the “responsibility of competent authorities, organizations, and individuals to provide documents and evidence” is one of the fundamental principles of civil procedure. Accordingly, authorities, organizations, and individuals (competent entities), within the scope of their duties and powers, are responsible for fully and timely providing to the litigants, the Court, and the People’s Procuracy the documents and evidence that they are holding or managing upon request by the litigants, the Court, or the Procuracy. They must also bear legal responsibility for the provision of such documents and evidence. In cases where they are unable to provide, they must notify in writing and clearly state the reasons.

To clarify this principle, Article 106 of the 2015 CPC provides for the right of litigants to request competent entities to supply documents and evidence. Relevant provisions also set out in relatively clear terms the responsibility of authorities, organizations, and individuals to provide such documents and evidence. Under these regulations, the responsibility of competent entities arises on two grounds: (i) requests from the litigants; and (ii) the Court’s activities in collecting documents and evidence. This matter is analyzed as follows:

First, the responsibility to provide documents and evidence at the request of litigants

Clause 6, Article 70 of the 2015 Civil Procedure Code (CPC) stipulates that litigants have the right to request agencies, organizations, or individuals who are holding or managing documents and evidence to provide such documents and evidence to them. The procedures for implementation are set out in Clause 1, Article 106 of the 2015 CPC. Accordingly, upon receiving a valid request from a litigant, the competent entity is responsible for providing the requested documents and evidence to the litigant within 15 days from the date of receipt of the request. If unable to provide, the competent entity must reply in writing and clearly state the reasons to the requesting party.

The basis for determining the validity of a request for documents and evidence is prescribed in Clause 2, Article 106 of the 2015 CPC. Specifically, the request must be made in writing and include the following essential information:
(i) The name of the document or evidence;

(ii) The reason for the request;

(iii) The full name and address of the individual, or the name and address of the agency/organization holding or managing the requested documents and evidence.

When compared with the provisions of the 2004 CPC on the right to request other entities to provide documents and evidence, it can be seen that the provision in Article 106 represents a “highlight” of the 2015 CPC. It contributes to ensuring the principles of “Submission of evidence and burden of proof in civil proceedings” and “Responsibility of competent authorities, organizations, and individuals to provide documents and evidence.”

The 2015 CPC, by recognizing both the right and the method of request, while simultaneously imposing a corresponding obligation on the entity holding the evidence, is considered a “significant step forward” in concretizing and ensuring the value of the principle of evidence submission and burden of proof in civil procedure.[1]

Second, the responsibility to provide documents and evidence at the request of the Court or the People’s Procuracy (VKS)

Regarding the provision of documents and evidence at the request of the Court or the VKS, Clause 7, Article 70 of the current Civil Procedure Code (CPC) recognizes that:

(i) Litigants may request the Court to verify or collect documents and evidence in the case when they are unable to do so themselves;

(ii) Litigants may request the Court to issue a decision requiring agencies, organizations, or individuals who are holding or managing documents and evidence to provide such documents and evidence.

Similarly, in cases where the requesting entity is the VKS, the agencies, organizations, or individuals are responsible for complying according to Clause 3, Article 106 of the 2015 CPC, which operates in the same manner as the Court’s mechanism.

From the author’s perspective, evaluating across three dimensions—theoretical, legal, and practical—granting litigants this right is entirely reasonable and appropriate for the following reasons:

First, litigants are the initiators of the litigation process and play a central role in proceedings. They have the right to decide and exercise discretion when making requests or opposing requests from the opposing party, and therefore are the primary subjects aware of the documents and evidence in the case. However, in practice, not all documents and evidence are accessible to them. For example:

• Documents and evidence proving infringed legal rights and interests in civil transactions that are not formalized in writing but exist as acts or oral statements;
• Documents and evidence related to the defendant’s residence;
• Documents and evidence concerning bank accounts of individuals or legal entities involved in the dispute;
• Documents and evidence regarding the fulfillment of tax obligations to competent state authorities.

Second, although the Court is the adjudicating body in civil proceedings, it also has the duty to ascertain the facts and clarify the objective truth of the civil dispute, and its investigative activities form the basis for its judgments[2]. Therefore, clarifying that litigants have the right to request the Court to collect documents and evidence in certain cases helps ensure the proper resolution of civil cases.

2. Legal provisions on the mechanism for handling violations of the obligation to provide documents and evidence by competent entities in civil proceedings

As analyzed above, when there is a request from a litigant or when deemed necessary, the Court may issue a decision requiring agencies, organizations, or individuals who are managing or holding documents and evidence to provide such documents and evidence to the Court. The entities holding or managing the documents and evidence are responsible for fully providing them within 15 days from the date of receipt of the Court’s request.

If, after this period, they fail to provide the documents and evidence as requested by the Court, the agencies, organizations, or individuals must respond in writing and clearly state the reasons. If they do not comply with the Court’s request without a valid justification, depending on the nature and severity of the violation, they may be subject to administrative sanctions or criminal liability in accordance with the law. Moreover, administrative or criminal sanctions do not exempt them from the obligation to provide the requested documents and evidence.

Pursuant to Clause 1, Article 495 of the 2015 CPC, agencies, organizations, or individuals who fail to comply with a Court decision regarding the provision of documents and evidence under their management or custody may be subject to administrative penalties imposed by the Court in accordance with the law.

Regarding the form of sanctions, authority, and procedures for imposing penalties

Article 498 of the 2015 Civil Procedure Code (CPC) stipulates that the aforementioned acts fall under the category of “obstructing civil procedural activities”, and the specific handling mechanism is implemented in accordance with the Law on Handling Administrative Violations and other relevant legislation. Accordingly, Article 48 of the 2012 Law on Handling Administrative Violations, as amended and supplemented by the 2020 Law (hereinafter referred to as the Law on Handling Administrative Violations – LHAV), provides the authority of courts to impose administrative penalties, the types of sanctions, and specific penalty levels as follows:

(i) The presiding judge of a trial has the authority to issue a warning or impose a fine of up to VND 1,000,000;

(ii) The Chief Judge of a District People’s Court, the Chief Specialized Judge of a Provincial People’s Court, or the Chief Judge of a Regional Military Court has the authority to issue a warning or impose a fine of up to VND 7,500,000;

(iii) The Chief Judge of a Provincial People’s Court, the Chief Judge of a Military Court of a Military Region, or equivalent authorities, and the Chief Specialized Judge of a Superior People’s Court has the authority to issue a warning or impose a fine up to the maximum level corresponding to the field as prescribed in Article 24 of the LHAV.

Currently, Ordinance No. 02/2022/UBTVQH15 dated August 18, 2022, issued by the Standing Committee of the National Assembly, regulates the handling of acts obstructing court proceedings. According to Point a, Clause 1, Article 18 of Ordinance No. 02/2022/UBTVQH15, the act of “failing to comply with a request from the Court or the People’s Procuracy to provide documents and evidence under one’s management or custody” is classified as an act obstructing the verification and evidence collection activities of competent authorities. The sanction applied to the violating entity is a warning or a fine ranging from VND 100,000 to VND 1,000,000 for individuals, and from VND 200,000 to VND 2,000,000 for organizations.[3]

In addition, pursuant to Clause 1, Article 44 of Ordinance No. 02/2022/UBTVQH15 and the provisions of the current Criminal Code, the act of failing to provide documents or evidence by a competent entity is not subject to criminal liability. Accordingly, from the perspective of criminal law, Article 383 of the 2015 Criminal Code provides for the offense of “Refusing to give testimony, refusing to conclude an appraisal or asset valuation, or refusing to provide documents”. However, the subjects within the scope of this offense are limited to “other participants in the proceedings” (including witnesses, appraisers, asset valuers, translators, who refuse to testify, evade appraisal or asset valuation, or refuse to provide documents without a legitimate reason) and do not include agencies, organizations, or individuals holding or managing documents and evidence.

3. Practical experience and some opinions and recommendations

3.1. Some specific cases

To illustrate, the author refers to, analyzes, and discusses the following cases:

Case 1: On March 11, 2020, Mr. Q filed a lawsuit at the People’s Court of District T requesting the division of an inheritance left by Mr. C. Among the assets requested for division was the money in a bank account under Mr. C’s name.

On June 19, 2020, the plaintiff submitted a Request for Provision of Documents and Evidence to Bank V – Branch B, requesting two bank statements with valid signatures and stamps for the account under the name Mai Xuân C. On June 24, 2020, Bank V – Branch B responded that, because the account-opening records were held at the branch where the account was opened, the branch would forward the request to Bank V – Branch T [4]. On June 29, 2020, the plaintiff submitted the request directly to Bank V – Branch T, asking for the bank statements with valid signatures and stamps within 15 days from the date of receipt of the request. However, the bank did not provide the statements nor any written response regarding the request after the deadline had passed.

Case 2: In the case of the land use rights dispute between Mr. V and Ms. T, the District People’s Court had repeatedly requested the Provincial People’s Committee to provide information regarding the clearance and compensation for National Highway 13 related to the disputed land area between the parties. However, the case had to be suspended from August 2016 to November 2017, because it was not until November 2017 that the Court received the written response. Thus, from the time the Court requested the provision of evidence until the receipt of the written response, it took more than one year for the agency holding the evidentiary documents to execute the Court’s decision on the provision of documents and evidence. The agency requested to provide evidence gave directions but did not comply with the request, while the Court only issued a “reminder” without taking administrative action[5].

Case 3: In the lawsuit concerning the determination of the capital contribution status of the members of Company E, the case was accepted and handled by the Provincial People’s Court of D since 2015, but by 2020 it still had not been brought to trial, the main reason being that the entity holding important documents and evidence refused to provide them. Accordingly, considering that the case file was insufficient for settlement, on October 28, 2016, the Provincial People’s Court of D issued a written request to the Provincial Police of D for a response. On November 29, 2016, the Court received a reply stating: “The case regarding the dispute over the company seal and the Business Registration Certificate among the members of Company E has been accepted and handled by the Division of Administrative Management on Social Order of the Provincial Police of D. Therefore, the Division of Administrative Management on Social Order of the Provincial Police of D is requested to provide the Court with all statements of the litigants in the case.”[6]

Subsequently, the Provincial People’s Court of D sent two official letters requesting the Division of Administrative Management on Social Order of the Provincial Police of D to respond and provide evidence. These letters specified the time limit within which the obligation to provide must be fulfilled, and in case of failure, the reasons must be clearly stated. However, the response the Court received was merely “silence.” This lack of goodwill caused the case to be delayed and prolonged, and even after the statutory time limit for settlement had expired, no final judgment had yet been rendered.

3.2. Issues Raised

From the cases cited, the author observes several issues as follows:

First, under current conditions, the level of legal knowledge among the people remains limited, and their ability to protect themselves, to collect documents and evidence, and to prove their claims still faces many difficulties. Therefore, although they believe their rights have been infringed and, in fact, their rights are indeed being infringed, they are unable to request other agencies, organizations, and individuals to provide evidence as a basis for reclaiming their lawful rights and interests.

Typically, in many cases, although the litigants have spent a great deal of effort and time repeatedly requesting the entities managing and holding documents and evidence to provide them, the outcomes received by the plaintiffs or litigants mainly fall into the following situations:

(i) no response whatsoever regarding whether documents and evidence would be provided or not;

(ii) refusal on various grounds, or shifting responsibility to other agencies, organizations, or individuals without any specific or clear guidance; and

(iii) provision of incomplete, inaccurate, or untimely documents, not in accordance with statutory deadlines[7].

Second, in many cases, although the Court has issued a decision requiring agencies, organizations, or individuals managing and holding documents and evidence to provide them in accordance with the 2015 Civil Procedure Code so that the case can be resolved in compliance with proper procedures and statutory time limits, “the agencies or organizations holding evidentiary documents such as maps, procedures for issuance of land use right certificates, land registration procedures… or responding with opinions regarding excess or shortage of land area compared to that recorded in the land use right certificates are often extremely delayed, causing the case to be prolonged and resulting in frustration for the litigants”[8].

Pursuant to Article 214 of the 2015 Civil Procedure Code, in cases where “it is necessary to await the results of judicial entrustment, entrustment for evidence collection, or to await agencies or organizations to provide documents and evidence as requested by the Court in order to resolve the case,” the Court shall issue a decision to temporarily suspend the settlement of the civil case. “Therefore, in certain land use right disputes, the Court issues a decision to temporarily suspend the settlement of the case for as long as 2–3 years without issuing a decision to continue the proceedings, because the relevant agencies or organizations have not provided the documents and evidence, making it impossible to resolve the case”[9].

Thus, from the perspective of the requesting entities such as the Court or the Procuracy, the “silence” of the competent authorities has, in effect, delayed the case resolution process, leading to prolonged suspensions and adversely affecting both procedural time limits and the lawful rights and interests of the litigants.

3.3. Recommendations

Based on the analysis, the author has several discussions and recommendations as follows:

First, the current legal provisions still leave a legal gap by failing to prescribe sanctions against agencies, organizations, or individuals with authority in cases where they do not provide documents and evidence at the request of litigants. Clearly, in order to ensure that the rights of litigants are effectively enforced in practice, the 2015 Civil Procedure Code has already provided sanctions for violations of civil procedural law in general and, in particular, the principle of producing evidence and burden of proof. However, from the findings drawn from the shortcomings and limitations in practice, the author believes that the sanctions against violations of the provisions on the provision of evidence and the burden of proof in the 2015 Civil Procedure Code and related documents do not comprehensively cover all acts whereby individuals, agencies, and organizations infringe upon the exercise of the right to initiate lawsuits and the right to request the Court to protect the lawful rights and interests of litigants in civil proceedings[10].

The author agrees with the view that, in order to broaden the scope of application of the general principle within specific provisions of law concerning responsibility in the provision of evidence by individuals, agencies, and organizations, the Civil Procedure Code should be revised to align with the changes in the general principle, specifically amended in the direction that: “Individuals, agencies, or organizations that fail to fulfill their responsibility to provide evidence and documents relating to a case to litigants, their lawful representatives, the persons protecting their lawful rights and interests, or to the Court, or that obstruct the verification and collection of evidence by civil procedural authorities, may, depending on the seriousness of the violation, be subject to a decision by the Court to impose a warning, a monetary fine, administrative detention, or criminal prosecution in accordance with the law”[11].

In addition, through studying the legal provisions related to sanctions for violations of the obligation to provide evidence in bankruptcy cases, the author notes significant differences in scope, applicable subjects, and penalties. Accordingly, Article 69 of Decree No. 82/2020/ND-CP dated July 15, 2020, of the Government, which regulates administrative penalties in the fields of judicial assistance, administrative justice, marriage and family, civil enforcement, and the bankruptcy of enterprises and cooperatives, provides for fines ranging from VND 1,000,000 to VND 3,000,000 for individuals and from VND 2,000,000 to VND 6,000,000 for organizations[12] in the following cases:

• Failing to provide complete and timely documents and evidence related to the bankruptcy case to creditors, enterprises, cooperatives, the Court, the Procuracy, receivers, or asset-managing and liquidation enterprises within the prescribed deadline, except in cases of legitimate reasons.
• Providing inaccurate documents or evidence related to the bankruptcy case to creditors, enterprises, cooperatives, the Court, the Procuracy, receivers, or asset-managing and liquidation enterprises.

Clearly, the procedural order for resolving bankruptcy cases is fundamentally governed by and subject to the Civil Procedure Law. Therefore, the author believes it would be appropriate, consistent, and compatible for the 2015 Civil Procedure Code to also provide regulations in a similar direction. In this spirit, it is considered necessary to supplement provisions in Chapter XL of the 2015 Civil Procedure Code on Handling Obstructive Acts in Civil Proceedings in one of the following two ways:

First approach: Amend Article 495 of the 2015 Civil Procedure Code:

“Article 495. Handling acts of failure to comply with Court decisions or requests of the litigants, their lawful representatives, or persons protecting the lawful rights and interests of the litigants regarding the provision of documents and evidence to the Court or litigants, or spreading false information to obstruct the resolution of the case by the Court.

1. Agencies, organizations, or individuals who fail to comply with a Court decision, a request of the Procuracy, or a request of the litigants, their lawful representatives, or persons protecting the lawful rights and interests of the litigants concerning the provision of documents and evidence under their management or custody may be subject to administrative sanctions by the Court in accordance with the law.
2. Persons who spread false information to obstruct the Court in resolving the case shall, depending on the nature and severity of the violation, be subject to administrative sanctions or criminal prosecution under the law.”

Second approach: Add a new article regulating acts of failure to comply with the requests of litigants, their lawful representatives, or persons protecting the lawful rights and interests of litigants:

“Article …. Handling acts of failure to comply with requests of litigants, their lawful representatives, or persons protecting the lawful rights and interests of litigants regarding the provision of documents and evidence to the litigants.

1. Agencies, organizations, or individuals who fail to comply with the requests of litigants, their lawful representatives, or persons protecting the lawful rights and interests of litigants regarding the provision of documents and evidence under their management or custody shall, at the request of the litigants, their lawful representatives, or persons protecting the lawful rights and interests of litigants, be subject to administrative sanctions by the Court in accordance with the law.
2. Depending on the nature and severity of the violation, agencies, organizations, or individuals who fail to comply with such requests may be subject to administrative sanctions or criminal prosecution under the law.”

As analyzed in Section 2 of this study, Article 498 of the 2015 Civil Procedure Code only provides generally: “The form of sanction, authority, procedure, and process for imposing administrative penalties for acts obstructing civil proceedings shall be implemented in accordance with the Law on Handling Administrative Violations and relevant laws,” without specifying concrete monetary penalties for each violation. Article 48 of the Law on Handling Administrative Violations only stipulates the maximum fine for each competent subject. Clearly, the absence of specific penalty frameworks for each subject, as in current provisions, remains a limitation, causing difficulties in applying these provisions in practice by competent authorities.

Moreover, the cautious and reluctant attitude of the courts, despite having sufficient grounds for application, is a matter of concern. As practical experience in Section 3 shows, to address this situation, procedural officers do not firmly apply Clause 3, Article 106 of the 2015 Civil Procedure Code to propose sanctions for delays by agencies or organizations, but instead issue a decision to temporarily suspend the case, citing the need to await responses from the entities holding documents and evidence[13].

The author believes that the sanctions provided in the 2015 Civil Procedure Code and the Law on Handling Administrative Violations are still quite general. From this deficiency, the author recommends increasing administrative penalties, enhancing the sanctioning authority of judges assigned to cases, and strengthening the coordination mechanism between the Court and the Procuracy in similar cases.

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