RESOLUTION

GUIDANCE ON APPLICATION OF A NUMBER OF PROVISIONS OF THE LAW ON COURT COST AND COURT FEE

COUNCIL OF JUDGES OF SUPREME PEOPLE'S COURT

Pursuant to the Law on Organization of People's Court

To correctly and uniformly apply the Ordinance on court cost and court fee (hereinafter referred to as the Ordinance) and other provisions of law on court fee and court cost;

After obtaining the consent of the Head of the Supreme People's Procuracy and the Minister of Justice,

DECIDES:

Chapter I

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Article 1. General principle

1. When handling civil, criminal, administrative cases, the Court shall base on the provisions of this Ordinance and Resolution and other provisions of law on court cost and court fee to determine the advance of court cost and court fee, the court cost and court fee that the person concerned and the convict must bear.

2. Where the person concerned and the convict send written request for exemption of the advance of court cost and court fee, the court cost and court fee, the Court shall base on the provisions of this Ordinance and Resolution and other provisions of the law on the court cost and court fee to consider their request.

Article 2. Obligation to pay court fee prescribed in Article 4 of the Ordinance

1. From the date the Ordinance takes effect (July 01, 2009) prior to the date the Law amending and supplementing some articles of the Code of civil procedure is effective (January 01, 2012) the court fee shall comply with the provisions of Article 4 of the Ordinance.

2. From the date the Law amending and supplementing some articles of the Code of civil procedure is effective (January 01, 2012), pursuant to clause 6, Article 26 of the Code of civil procedure adopted by the National Assembly of the Socialist Republic of Vietnam term XI, session 5 on June 15, 2004 (hereinafter abbreviated CPC 2004) and Clause 6, Clause 7, Article 26 of the CPC 2004 amended and supplemented under the Law amending and supplementing some articles of the Code of civil procedure adopted by the National Assembly of the Socialist Republic of Vietnam, term XII, session 9 on March 29, 2011 (hereinafter abbreviated as CPC amended 2011), apart from the court fee prescribed in Article 4 of the Ordinance, the person requesting the Court to resolve the following types of case must pay the court fee:

a) Request to declare the invalidity of notarized document;

b) Request for determination of ownership rights, the right to use property, division of common property for judgment execution as prescribed by law for enforcement of civil judgments.

Article 3. No requirement to pay the advance of court cost and the court cost prescribed in Clause 2, Article 10 of the Ordinance

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Article 4. Exemption from payment of advance of court cost, the court cost, the advavce of court fee and the court fee specified in clause 5, Article 11 and 13 of the Ordinance

Regarded as individuals and households under the poverty line defined in clause 5, Article 11 and Article 13 of the Ordinance, if at the time the Court resolves the civil cases, criminal cases, administrative cases, they are under the poverty line according to the regulations of the Government.

Example: At the time the person submitting written request for the settlement of the civil cases, they are under the poverty line as stipulated in Decision No. 09/2011/QD-TTG dated January 30, 2011 of the Prime Minister on the issuance of standards of poor households, nearly-poor households to apply for the peirod 2011-2015.

Article 5. Exemption from payment of a part of advance of court cost, the court cost, the advance of court fee and the court fee.

1. The person in economic difficulty specified in Clause 1 and Clause 2, Article 14 of the Ordinance must be a Vietnamese national or the person without nationality but is living and working in Vietnam at the time the court resolves the civil cases, criminal cases, administrative cases and must be certified by the People's Committees of communes, wards or towns where that person is residing or by the agency or organization where that person is working confirmed that he/she is in economic difficulty.

2. Where the Court has permitted the person in economic difficulty to be exempted from one part of the advance of court cost and advance of court fee as prescribed in Article 14 of the Ordinance and the guidance in clause 1 of this article, but they still have to bear all court cost and court fee in one of the following cases:

a) The Court has permitted the exemption from payment of one part of advance of court cost and advance of court fee, but then proved that the person exempted from payment is not the person in economic difficulty;

b) According to the judgment and decision of the Court decision, that person has property to pay all court cost and court fee that they incur (he is shared common property and entitled to inheritance, ...).

3. When considering and deciding the rate of advance of court cost and advance of court fee, the court cost and court fee, the Court shall base on financial ability of the person requesting for exemption from advance of court cost and advance of court fee, the court cost and court fee and property value in dispute in order to make decision on the level of exemption but must not exceed 50% of the advance of court cost and advance of court fee, the court cost and court fee of which under the provisions of the Ordinance that person must be make payment

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a) The person subject to the case of partial exemption from advance of court cost, advance of court fee, the court cost and court fee shall be exempted; the person not subject to the case of partial exemption from advance of court cost, advance of court fee, the court cost and court fee shall not be exempted.

b) Where the parties have agreed on the payment of court cost and court fee for the purpose of evading the implementation of obligation to the State, if there is a person agreeing to pay court cost and court fee on behalf and submitting application for partial exemption of court cost and court fee but according to regulation this person must pay if he meets the conditions presribed in Article 14 of the Ordinance while the court cost and court fee that he has agreed to pay on behalf of another person shall not be exempted.

Article 6. Handling advance of court cost, advance of court fee, the court cost and court fee prescribed in Article 18 of the Ordinance.

1. From the date the Ordinance takes effect (on July 01, 2009) prior to the date the Law on Administrative Procedures takes effect (on July 01, 2011), the provisions of Article 18 of the Ordinance shall apply to handle the advance of court cost, advance of court fee, the court cost and court fee.

2. From the date the Law on Administrative Procedures takes effect (on July 01, 2011), the handling of the advance of court cost, advance of court fee, the court cost and court fee in some cases as follows :

a) Where an administrative case is suspended under the provisions at Points a, b and c, Clause 1 of Article 120 of the Law on Administrative Procedures, the advance of court cost already paid shall be placed in state coffers;

b) Where the settlement of administrative case is suspended under the provisions of point d, Clause 1, Article 120 of the Law on Administrative Procedures, the advance of court cost shall be returned to the payer.

3. From the date the Ordinance takes effect (July 01, 2009) prior to the date the Law amending and supplementing some articles of the CPC 2004 takes effect (on January 01, 2012) the provisions in the Article 18 of the Ordinance to handle the advance of court cost, advance of court fee, the court cost and court fee shall be applied.

4. The Law amending and supplementing some articles of the CPC 2004 takes effect (on January 01, 2012), the advance of court cost, advance of court fee, the court cost and court fee shall be handled as follows:

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b) Where the settlement of civil cases is suspended under the provisions at Point c, g, h and i, Clause 1 of Article 192 of the CPC 2011 amended, the advance of court cost shall be returned to the payer.

Article 7. Method of calculation of advance of court cost of civil first instance

In order to have the foundation for calculation of advance of court cost of the civil first instance, depending on each case, the Court should base on the following elements:

1. The property price in accordance with regulations of the provincial People's Committee.

2. Quotation of the price assessment Organizations

3. The property price on the local market.

4. Where it is impossible to base the guidance in clause 1, 2 and 3 of this Article to determine the value of disputed property, the Court shall send a written request to the financial agencies and other professional agencies for their opnions on the determination of property price.

Chapter II

COURT COST IN CRIMINAL CASE

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1. The litigants in criminal cases specified in Article 21 of the Ordinance including the victim, civil plaintiff, civil defendant, and person concerned in the criminal cases.

2. The obligation to pay a court cost of litigants in criminal cases as provided in clause 1 of this Article shall comply with the provisions of Clause 2, Article 21 of the Ordinance.

3. In any case, the defendant loging a civil appeal in the criminal case does not have to pay the advance of court cost for civil appeal.

Article 9. Obligation to bear the court cost of the civil first instance in criminal cases specified in Clause 3, Article 22 of the Ordinance

1. In criminal cases, the persons not subject to the case being exempted from a whole or a part of court cost, in general principle, he must bear the court cost of civil first instance under Article 27 of the Ordinance.

2. In application of the provisions of Article 27 of the Ordinance in criminal cases, it is necessary to distinguish:

a) Where the victim has declared his property have been infringed and required the defendant to make compensation for property but in fact the property infringed by the defendant has been proved to be of lower value than that declared, the court cost of civil first instance shall be calculated for the part of property proved.

Example 1: The victims has reported his property was infringed and required the defendant to make compensation of 03 qians of gold for the property infringement but the authorities prove the defendant has just appropriated the plaintiff’s 02 qians of gold. The Court shall compelled the defendant to compensate 02 qians of gold for the damage of property to the victim, the defendant must bear the court cost of civil first instance that is 02 qians of gold for the property, the victim shall not bear the court cost of civil first instance for the portion of property that is 01 qian of gold not accepted.

Example 1: The victims has reported his property was infringed and required the defendant to make compensation of 03 qians of gold valued at VND 12,000,000 for the property infringement but the authorities prove the defendant has just appropriated the plaintiff’s 02 qians of gold valued at VND 8,000,000 at the time of of first-instance trial, the defendant must bear the court cost of civil first instance for 02 qians of gold valued at VND 8,000,000, the victim shall not bear the court cost of civil first instance for the portion of VND 4,000,000 not accepted.

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Example 1: The victims has reported his property was infringed and required the defendant to make compensation of 03 qians of gold valued at VND 8,000,000 for the property infringement but the authorities prove the defendant has just appropriated the plaintiff’s 03 qians of gold valued at VND 12,000,000 at the time of of first-instance trial, the defendant must bear the court cost of civil first instance for 03 qians of gold valued at VND 12,000,000.

c) The victim requiring a compensation for the property damage as prescribed by law does not require a sum of money or property that may be determined by a specific amount, he shall not be liable for court costs if his request is not accepted by the court.

d) The victim requiring a compensation for the items inconsistent with the law, the court must explain to them that he must bear the court cost if the request for the compensation is not accepted by the Court. If he still requests the Court’s settlement, he must bear the court cost if his request is not accepted by the Court.

Example: Where the victim requires a compensation for the attorney's fees unreasonably, the court must explain to them that they must pay the court cost his request is not accepted by the Court. If he still requests the Court’s settlement, he must bear the court cost for the attorney's fees if his request is not accepted by the Court.

3. Before the trial, if the litigants and defendants agree with each other on the compensation for damages even where they agree upon by themselves and request the court to note the compensation for the damage, they are not subject to court cost of the civil first instance. At the trial, if the litigants and defendants agree with each other on the compensation, they are subject to court cost of the civil first instance as in the case of judgement of that case;

Article 10. Obligation to bear the appellate court cost in the criminal cases specified in clause 1, 2 and 7, Article 23 of the Ordinance

1. In cases where both the defendant and legal representative of the defendant appeal against the criminal decision of the first instance judgement that the appellate court retains the criminal decision of the first instance judgement, only the defendant is subject to the criminal appellate court cost.

2. In cases where only the defendant or the legal representative of the defendant appeals against the criminal decision of the first instance judgement that the appellate court retains the criminal decision of the first instance judgement, only the protester is subject to the criminal appellate court cost.

3. In cases where the defendant appeals against the criminal decision and the legal representative of the defendant appeals against the civil decision or vice versa but the appellate court retains the decision of the first instance judgement, the protester to some extent must bear the court cost for his request.

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5. In cases where there is only one protester and his request for appeal is accepted by the Court, the protester is not subject to the appellate court cost.

Chapter III

COURT COST IN CRIMINAL CASE

Article 11. Obligation to pay the advance of court cost of civil first instance prescribed in Article 25 of the Ordinance.

1. Where a civil case with scale price but the value of disputed property that the Court estimates VND 4,000,000 or less, the court cost of the civil first instance is VND 200,000 (Point a, Section 2, Part I of the list of court cost and court fee rate issued by the court enclosed with the Ordinance). In this case, the advance of court cost of the civil first instance shall be equal to 50% of the court cost rate of the civil first instance that is VND 100,000.

2. Determining the advance of court cost of the civil first instance in the case of marriage and family as follows:

a) In case the wife or husband has request, the requester must pay the advance of court cost of the civil first instance that is VND 200,000.

b) Where both husband and wife request, each person must pay the advance of court cost of the civil first instance that is VND 100,000.

3. Where in addition to the divorce request, the litigants also request the division of common property of spouses in accordance with the law or request a division of half the value of the common property of spouses, the requester must pay the advance of court cost for half the value of the common property of spouses.

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Article 12. Obligations to bear the court cost of the civil first instance in case of settlement of division of common property, inheritance prescribed in clause 7, Article 27 of the Ordinance.

When the litigants cannot determine their property portion or each person determines their property portion in the common property, their inheritance in the common property is different and under dispute, each litigant must bear the court cost of the civil first instance at the rate corresponding to the value of the property portion that they are divided and enjoyed in the common property or the inheritance. For the Court rejects the requesting application, the requester for dividing common property and inheritance shall not be subject to the court cost of the civil first instance.

Example: A, B, C, D dispute over a common property worth VND 600,000,000 and cannot determine the portion of their property or each person determines his property in the common property differently and dispute arises. The court decides that A is divided by VND100,000,000, B is divided by VND 150,000,000, C is divided by VND 200,000,000 and D is divided by VND 150,000,000 shall be divided. The court cost of the civil first instance per person payable shall be calculated as follows:

A must pay the court cost of VND 100,000,000 x 5% = VND 5.000.000

B must pay the court cost of VND 150,000,000 x 5% = VND 7.500.000

C must pay the court cost of VND 200,000,000 x 5% = VND 10.000.000

D must pay the court cost of VND 150,000,000 x 5% = VND 7.500.000

Article 13. Obligation to bear the court cost of civil first instance in the case of marriage and family with dispute over the division of common property of spouses

1. The litigants in the case of marriage and family with disputes over the division of common property of spouses, in addition to bearing court cost of civil first instance prescribed at Point a, Clause 1, Article 24 of the Ordinance, they are also liable to the court cost for the property in dispute as to the civil case with scale price corresponding to the value of the property portion they are divided.

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3. In case the spouses have obligations on the property over the other person and this person has an independent request to the spouses to perdorm their obligations on the property and the Court accepts that independent request, the obligation to bear the court cost of the civil first instance as follows:

a) The person having an independent request shall not bear the court cost of civil first instance for the property portion they enjoy.

b) The spuses must bear the court cost of civil first instance for the value of property portion of which they have the obligation over the person having an independent request

c) The spouses have to bear the court cost of civil first instance for the property portion they are divided after subtracting the value of the property portion of which they have the obligation over the person having an independent request.

Article 14. Obligations to bear the court cost of civil first instance of the person with support obligation

The obligation to bear the court cost of civil first instance of the person with support obligation in the case of divorce, the case of damage compensation requirement, the criminal case with the settlement of issue of support obligation, the case on the support is as follows:

1. Where the parties reach agreement themselves on the rate of support and method of support prior to the trial but request the Court to note in the judgment or decision, the person with support obligation shall pay 50% of the court cost of civil first instance as for the civil case without scale price; in case at the court cost of civil first instance trial the parties reach agreement, the person with the support obligation must bear the first instance civil court fees as for the civil case without scale price.

2. Where the parties reach agreement on the method of support ( including one time) but cannot agree upon the rate of support, the person with support obligation must bear the the first instance civil court fees as for the civil case without scale price.

3. Where the parties reach agreement on the method of support but agree upon the rate of support, the person with support obligation must bear the court cost of the civil first instance as for the civil case without scale price.

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Article 15. Obligation to pay the advance of court cost, obligation to bear the court cost in the case of marriage and family.

1. As stipulated in Clause 3, Article 11 of the Ordinance, in the case of marriage and family, if support is required in all cases where the person requiring support does not have to pay the advance of court cost nor the court cost for support request.

2. The case for divorce requirement and dispute over the division of property but the parties are not subject to the case without payment of the advance of court cost and the court cost as prescribed in Article 10 of the Ordinance; being exempted from all advance of court cost and the court cost as prescribed in Article 11 of the Ordinance and guidance in Article 4 of this Resolution, they must pay the advance of court cost as prescribed in Article 25 of the Ordinance and the guidance in Article 11 of this Resolution; they must bear the court cost as prescribed in Clause 8, Clause 9, Article 27 of the Ordinance and the guidance in Article 13 of this Resolution.

Article 16. Obligation to bear the court cost of the civil first instance prescribed in clause 11, Article 27 of the Ordinance

1. In case the litigants reach agreement to divide the spouses’ common property and request the Court to note in the judgement and decision before the Court conduct the conciliation, the litigants shall not be subject to the court cost of the civil first instance.

2. In a divorce case where the parties agree to the divorce as stipulated in Article 90 of the Law on Marriage and Family 2000, it is considered that the parties reach agreement themselves on the settlement in case the Court conducts the conciliation before opening the hearing as prescribed in Clause 11, Article 27 of the Ordinance and the parties must bear 50% of the prescribed court cost (each party shall bear 25% of the prescribed court cost).

3. Where the Court has conducted the conciliation, at the conciliation session the litigants can not agree the division of common property of spouses but before opening the hearing the parties agree upon the division of common property of spouses and request the Court to note in the judgment or decision, the case shall be considered as the parties reach agreement among themselves on the settlement of the case in case the Court conducts the conciliation prior to the trial and they shall be subject to 50% of the court cost of the civil first instance corresponding to the value of the property they are divided.

4. Where at the hearing, the litigants reach agreement on the settlement of the case, they are still subject to 100% of the court cost of the civil first instance corresponding to the value of the property they are divided.

5. Where the litigants are in dispute on the division of common property and obligation of the common property of spouses, the court shall conduct the conciliation and the litigants agree to reach an agreement on the division of some common property and some common property and obligations of the common property cannot be reached an agreement, the litigants shall have to bear the court cost for the division of the whole of common property and obligations of common property of spouses.

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1. For disputes over property recovery from lending and temporary staying, the litigants must pay the court cost of the civil first instance for the civil case without scale price. In case of disputes outside the property recovery from lending and temporary staying, the litigants are also in disputes over the compensation for damage and request the Court to settle, the litigants must pay the court cost without scale price for dispute over property recovery from lending and temporary staying and the court cost with scale price for the request for damage compensation.

2. For the dispute over the property ownership, it is necessary to distinguish as follows:

a) In case of dispute over the property ownership but the Court doesnot consider the value but the property ownership, the litigants must bear the court cost of the civil first instance as for the case without scale price;

b) In case of dispute over the property ownership but the Court has to determine the value of the property or the ownership by portion, the litigants must bear the court cost of the civil first instance as for the case with the scale price for the value enjoyed.

3. For the dispute over the contract for invalid sale and purchase of property and transfer of land use right, it is necessary to distinguish as follows:

a) In case one party requests the recognition of the contract for sale of property and transfer of land use right and one party requests the declaration of the invalidity of the contract for sale and purchase of property and transfer of land use right and requests nothing else. If the Court declares the Contract in invalid, the party requesting the recognition of the contract must bear the court cost as for the case without the scale price. If the Court declares to recognize the contract, the party requesting the declaration of invalidity of the contract must bear the court cost as for the civil case without the scale price.

b) In case one party requests the recognition of the contract for sale of property and transfer of land use right and one party requests the declaration of the invalidity of the contract for sale and purchase of property and transfer of land use right and requests the Court to settle the consequence of the invalid contract, in addition to bearing the court cost without the scale price as guided at point a, clause 3 of this Article, the person performing obligation on the property or damage compensation must bear the court cost as for the civil case with the scale price for the value of property to be performed.

4. In case of dispute over the contract for sale of property and transfer of land use right, one party requests the reimbursement of the deposit and deposit penalty, one party accepts to return the deposit received and does not accept the deposit penalty, but the Court accepts the deposit penalty, the party that does not accept the deposit penalty must bear the court cost as for the civil case with the scale price for the deposit penalty. In case the Court does not accept the deposit penalty, the party requesting the deposit penalty must bear the court cost as for the civil case with the scale price for the deposit penalty.

Chapter IV

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Article 18. Time limit for payment of advance of administrative court cost of the first instance.

1. From the date the Ordinance takes effect (on July 01, 2009) prior to the date the Law on Administrative Procedures takes effect (on July 01, 2011), as prescribed in Article 33 of the Ordinance, the petitioner must pay the advance of administrative court cost of the first instance within 07 days from the date of receiving notice of the Court on the payment of the advance of court cost.

2. From the date the Law on Administrative Procedures takes effect (on July 01, 2011), as prescribed in Article 111 of the Law on Administrative Procedures, the petitioner must pay the advance of administrative court cost of the first instance within 10 days from the date of receiving notice of the Court on the payment of the advance of court cost.

Article 19. Obligation to bear the court cost of first instance in administrative case.

1. In case the judgment and decision of the Court declared to accept a part of request of lawsuit initiating of the petitioner, one or a number of administrative decisions, administrative act in conformity with the law, one or a number of administrative decisions, administrative act in contrast with, the defendant must bear the administrative court cost of the first instance

Example: Mr. A initiates a suit to request the cancellation of 02 administrative decisions of the People’s Committee of province C, the Court settles and argues that 01 administrative decisions is lawful and 01 administrative decision is unlawful and decides to accept a part of request of lawsuit initiating of Mr. A. In this case, the People’s Committee of province C must bear the administrative court cost of the first instance.

2. In administrative case, the person not subject to the case of exemption from the whole or a part of the advance of the court cost and the court cost, in general principle, they must bear the court cost of the civil first instance as prescribed in the Article 27 of the Ordinance.

3. Upon application of the provisions in the Article 27 of the Ordinance in administrative case, it is necessary to distinguish:

a) The petitioners requesting a damage compensation for the life, health, honor and dignity shall be entitled to exemption of the whole of advance of the court cost and the court cost.

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c) The petitioners requesting a damage compensation for inappropriate items, the Court has to explain to them about the reason why they must bear the court cost if their requests for damage compensation are not accepted by the Court. If they still request the Court’s settlement, they must bear the court cost if their requests are not accepted by the Court.

d) In case the litigants open dialogue and reach an agreement on the settlement of the case prior to the hearing, the litigants shall bear 50% of the rate of prescribed court cost.

Chapter V

IMPLEMENTATION PROVISION

Article 20. Effect of implement prescribed in the Article 51 of the Ordinance

1. From July 01, 2009, upon handling the civil cases, criminal cases and administrative cases, the issues about the advance of court cost, advance of court fee, the court cost and the cost fee must be considered and decided in accordance with regulations of the Ordinance.

2. For the court cases handled by the Court for settlement according to the procedure of first instance or appellate procedure before the date the Ordinance takes effect (on July 01, 2009), but after July 01, 2009, the Court shall resolve the case under the first instance procedures and appeal procedures, the decision on court cost and court fee shall comply with the provisions of Decree No. 70/CP dated June 16,1997 of the Government " regarding court cost and court fee" and previous documents about court cost and court fee; the case under the provisions of Decree No. 70/CP dated June 16,1997 of the Government " regarding court cost and court fee” that the litigants and defendant must bear court cost and court fee, but under the provisions of the Ordinance, the litigants and defendant shall not be subject to or exempted from or reduced from the court cost and court fee, the provisions of the ordinance shall apply to them.

Article 21. Effect

1. This Resolution is adopted by the Council of Judges of Supreme People's Court on March 29, 2012 and shall take effect after 45 days from its signing date.

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3. From the date this Resolution takes effect, for the judgment and decision of the Court that have taken legal effect before the date this Resolution takes effect, the guidance in this Resolution shall not be applied for protest according to the procedure of cassation or retrial, unless there are other grounds for protest.

4. Any problem arising in the course of implementation should be promptly reported to the Supreme People’s Court for prompt explanation or guidance on supplementation.

ON BEHALF OF THE COUNCIL OF JUDGES
TRIBUNAL PRESIDENT




Truong Hoa Binh

Nghị quyết 01/2012/NQ-HĐTP hướng dẫn áp dụng pháp luật về án phí, lệ phí Tòa án do Hội đồng Thẩm phán Tòa án nhân dân tối cao ban hành