Proposal to apply foreign law in the field of civil judicial assistance

Vice Chairman of the National Assembly Nguyen Khac Dinh chaired the discussion session. *Photo: Quochoi.vn*

The principle of "reciprocity" in international relations

Concerned about the principle of civil judicial assistance stipulated in Article 6 of the draft Law, delegate Nguyen Minh Tam ( Quang Binh Delegation) suggested that the drafting agency add the principle of "reciprocity" to this article, because this is a basic principle in international relations.

The delegate said that the proposal does not directly and strictly stipulate the principle of "reciprocity", but takes a more flexible approach by adding cases where foreign judicial assistance can be refused when there is reason to believe that that country does not cooperate in implementing judicial assistance with Vietnam (point a, clause 2, Article 25).

According to the delegate, this regulation aims to create a legal basis for competent authorities of Vietnam to consider and decide on the application of the "reciprocity" principle in implementing judicial assistance with foreign countries on a case-by-case basis, with the aim of ensuring maximum rights and interests of people and businesses in civil cases as well as expanding international cooperation in this field.

Delegate Nguyen Minh Tam (Quang Binh Delegation) speaks. *Photo: Quochoi.vn*

Regarding the method of implementing Vietnam's request for civil judicial assistance as prescribed in Article 20, delegate Nguyen Minh Tam said that Vietnam's request for civil judicial assistance is implemented according to the provisions of the law of the requested country or according to a specific method accepted by the requested country.

Therefore, the delegate suggested that the drafting agency consider revising as follows: “Vietnam’s request for civil judicial assistance shall be implemented in accordance with the international treaty on civil judicial assistance that Vietnam and foreign countries have signed. In cases where an international treaty on judicial assistance has not been signed, it shall be implemented in accordance with the laws of the requested country or in a specific manner approved by the requested country.”

Delegate Pham Van Hoa ( Dong Thap Delegation) speaks. *Photo: Quochoi.vn*

Meanwhile, delegate Pham Van Hoa (Dong Thap delegation) was concerned about the application of foreign law. The delegate said that the application of foreign law to Vietnam in the field of civil judicial assistance is extremely necessary. In case foreign law has provisions on an issue that Vietnam does not have or does not have an international treaty, Vietnam's request for judicial assistance will be difficult to implement if it does not apply their provisions.

“The lack of legal basis to implement international treaties or the principle of reciprocity will cause difficulties for Vietnamese law enforcement agencies. Therefore, the application of foreign law is reasonable,” delegate Pham Van Hoa suggested.

However, delegate Pham Van Hoa also noted that when applying foreign laws, it is necessary to ensure compliance with the principles of Vietnamese law, including respect for sovereignty, territorial integrity, non-interference in each other's internal affairs, equality and protection of the rights and legitimate interests of the host country, Vietnam as well as its citizens.

Provide support in electronic environment

Delegate Nguyen Tam Hung (Ba Ria - Vung Tau Delegation) speaks. *Photo: Quochoi.vn*

Delegate Nguyen Tam Hung (Ba Ria - Vung Tau Delegation) is concerned about the issue of summoning and protecting witnesses and experts in Article 9.

The delegate said that Clause 4, Article 9 of the draft Law allows criminals in Vietnam to be exempted from prosecution and detention if they are summoned to testify. This provision poses potential risks in practice, and can easily be exploited to legitimize illegal acts, such as the case of foreigners with arrest warrants who use the excuse of attending court as witnesses to avoid arrest.

From the above analysis, the delegate suggested that the drafting agency consider excluding point b, clause 4, Article 9 or limit temporary exemption to the scope of the specific case under trial, not applying to particularly serious crimes or violations of Vietnamese law that may affect political security and social order and safety.

Regarding the implementation of mutual assistance in the electronic environment in Article 33, the delegate said that although the law mentions the possibility of implementing mutual assistance requests via the electronic environment, it does not clearly stipulate the roadmap, authentication method, time of legal validity and inter-sectoral data sharing mechanism. The transfer of paper documents currently takes time, especially with European countries that require high security and digital evidence.

"We request that the drafting agency consider clearly defining the roadmap for implementing mutual assistance on digital platforms, and at the same time clearly defining the legal value of electronic documents authenticated by digital signatures for specialized public service use," the delegate recommended.

Minister of Justice Nguyen Hai Ninh, on behalf of the drafting agency, accepted and explained. *Photo: Quochoi.vn*

At the discussion session, Minister of Justice Nguyen Hai Ninh, on behalf of the drafting agency, received and clarified the opinions of National Assembly deputies regarding the principle of mutual legal assistance in civil matters. In particular, the draft Law applies a more flexible principle, which can refuse mutual legal assistance in civil matters when there is a basis to believe that the country does not cooperate in mutual legal assistance with Vietnam.

The Minister said that this is the legal basis for considering the “give and take” in civil judicial assistance with foreign countries to ensure the maximum legitimate rights and interests of people and businesses in civil cases as well as international cooperation in this field. This is also a new point of the Law on Civil Judicial Assistance compared to the corresponding provisions of the current Law on Judicial Assistance.

On the same afternoon, National Assembly deputies discussed in the hall about funding for drug rehabilitation facilities and policies to support officials, workers and civil servants working in drug rehabilitation; supplementing the investment form for the North-South high-speed railway project; and solutions to continue implementing planning work associated with the arrangement of administrative units while the Law on Planning (amended) has not been promulgated. Minister of Finance Nguyen Van Thang spoke to explain and clarify a number of issues raised by National Assembly deputies.

Source: https://hanoimoi.vn/de-xuat-ap-dung-phap-luat-nuoc-ngoai-trong-linh-vuc-tuong-tro-tu-phap-ve-dan-su-706764.html