VERIFYING THE DEFENDANT’S ADDRESS WHEN INITIATING A LAWSUIT AT A COURT (PART II)
In Part I, TNTP gave instructions on how to verify the defendant’s address at the Court’s request as well as solutions in case the petitioner cannot verify the defendant’s address when filing a civil lawsuit in the Court. Further to Part I, in this article, we will hereby analyze and guide the complaint against the Court’s decision to return the petition due to the reason that the Court has not accepted the petitioner’s explanation about his/her failure to verify the defendant’s address.
1. Grounds for the Court to return the lawsuit petition
Normally, if the petitioner cannot verify the defendant’s address at the Court’s request, the Court will return the petition under Article 192.1.e of the 2015 Civil Procedure Code on Return of lawsuit petitions, consequences of the return of lawsuit petitions. Accordingly, the Judge assumes that the petitioner has failed to declare sufficiently or accurately the defendant’s address and to make the amendment, supplement under his/her request so that the lawsuit petition has been returned under Article 193.2 of the 2015 Civil Procedure Code. However, the inability to verify the defendant’s address cannot be considered as a case of failure to declare sufficiently or accurately the defendant’s address and to make the amendment, supplement. Therefore, it is not appropriate for the Court to return the petition under Article 192.1.e of the 2015 Civil Procedure Code.
2. Grounds to complaint against the Court’s decision to return the lawsuit petition
– Regulations of the law on declaring sufficiently and accurately the defendant’s place of residence
Under Article 5 of Resolution No. 04/2017/HDTP, the defendant’s address is prescribed as follows: (i) In case the defendant is a Vietnamese citizen or a Vietnamese residing abroad who still has Vietnamese nationality and returns to live in Vietnam, his/her place of residence is the legitimate place of residence where the defendant has registered his/her permanent residence or temporary residence, or in case his/her place of permanent or temporary residence cannot be identified, it shall be determined according to his/her current place of residence ; (ii) In case the defendant is a foreigner residing in Vietnam, his/her place of residence shall be determined according to the address stated in the certificate of temporary residence, temporary residence card or permanent residence card issued by competent authorities ; (iii) In case the defendant is a foreigner or a Vietnamese residing abroad, his/her place of residence shall be determined under documents and evidence provided by the petitioner or documents and evidence granted and certified by competent authorities; and (iv) In case the defendant is an agency or organization with Vietnamese nationality, the address of the agency or organization shall be determined to be the place where that agency or organization has its head office or branch under the decision of competent state authorities.
Also under this Article, if the petitioner has provided the defendant’s “place of residence, work, or place of head office” to the Court which has been in under the above regulations at the time of filing the lawsuit and granted, certified by competent authorities or proved to be the address of the defendant under other grounds, the petitioner is considered to declare accurately the defendant’s address.
– The petitioner has provided the defendant’s address and proving evidence
When the petitioner has provided the defendant’s address under the identity card, household registration book, certificate of temporary residence, temporary residence card… (“Personal identification documents“) for individuals or enterprise registration certificate for legal entities and these documents are valid at the time of filing the petition, the petitioner is considered to declare accurately the defendant’s address since these documents contain address information issued by competent authorities.
In addition, in case the petitioner has not had information on the defendant’s identification documents but provided the address under the Contract signed by the parties, he/she is considered to have other grounds to prove the defendant’s address under Article 6.2.a of Resolution No. 04/2017/HDTP.
If the petitioner has provided documents with the plaintiff’s address as above, but the Court still requests that the address must be verified by competent authorities, it means that the petitioner must prove one more time even though he/she has had proving evidence. On the other hand, when the petitioner has submitted the Request Letter to the police for verification of the defendant’s address but has been refused by the police then has explained to the court, it cannot be considered that the petitioner failed to amend and supplement the petition. Therefore, the Court’s return of the petition has caused difficulties and prolonged the lawsuit process, and directly affected the petitioner’s interests.
– Regulations of the law on complaints against the Decision to return the petition
Under Articles 70.22 and 194.1 of the 2015 Civil Procedure Code, within 10 days from the date of receipt of the writing returning the lawsuit petition, the petitioner has the right to complain against the return of the lawsuit petition to the Court.
Thus, in case the petitioner has grounds to prove that the lawsuit petition contains sufficiently and accurately the defendant’s address under the law, but the Court decides to return the petition due to the reason that the petition has been failed to amend and supplement at the Court’s request, the petitioner has the right to complain against this Court’s Decision to protect his/her legitimate rights and interests.
With the legal share on verifying the defendant’s address in general and complaining against the Decision to return the petition in particular, we hope this article will help you in the process of filing the lawsuit in Court.
Best regards.
TNTP & Associates International Law Firm
