Submission of new evidence during dispute settlement
September 30, 2019 Court Litigation
When settling litigation disputes in Vietnam, concerns may arise as to whether there exists any evidence that the opposing party has not previously submitted to the Court and whether there is any time limit for submission of documents or evidence. This Insight will cover the evidentiary rules and regulations under the Civil Procedure Code and how these rules are applied by the courts in practice.
Provisions of the 2015 Civil Procedure Code on time limits for submission of documents and evidence
Pursuant to Article 96 of the 2015 Civil Procedure Code, the time limits for submission of documents and evidence shall be fixed by the judge but must not exceed the time of first-instance trial preparation. After the court’s decision to open the first-instance trial, the parties are only able to submit evidence under the following conditions:
1.Documents and evidence which were requested by the judge, but the parties could not submit by the deadline as a result of a plausible reason; or
2.Documents and evidence which were not requested by the judge or were previously unknown to the parties.
Therefore, it can be seen that the 2015 Civil Procedure Code does have a time limit for submission of new evidence and, technically, no new evidence submitted to the court will be accepted.
The application of the 2015 Civil Procedure Code regarding submission of evidence in practice
As seen above, the 2015 Civil Procedure Code provides a barrier for the parties regarding the submission of evidence, which mandates them to submit evidence in a timely and full manner in order for the court to have a basis to settle the dispute. However, in reality, this barrier is not effective. The reason is that the 2015 Civil Procedure Code does not provide what the definition of a “plausible reason” is and this interpretation will depend on the judge’s viewpoint. In addition, it also depends on the veracity of the facts declared and submitted by the parties which form the grounds for the judge to anticipate relevant documents. In other words, if either party intentionally conceals the truth, the judge cannot predict all objective facts to accurately request the specific documents.
Moreover, the 2015 Civil Procedure Code does not have any clear sanctions against this concealment. In fact, many Courts still accept documents and evidence not submitted within the time limit and utilize them as the basis for resolving the lawsuit (although they were previously requested to be submitted).
In Judgement No.03/2019/KDTM-PT, dated January 11, 2019, of the People’s Court of Ha Noi City (“Judgement 03”) and Judgement No.04/2019/KDTM-PT, dated July 17, 2019, of the People’s Court of Ha Nam Province (“Judgement 04”), the parties submitted new evidence during the appellate stage. However, in both judgements, neither court considered whether the evidence was submitted in accordance with the law or not, i.e., whether the first-instance courts had requested the parties to submit such evidence and, if they had made a request, whether the parties had any plausible reason for failure to initially submit the evidence within the prescribed time frame.
The detailed contents of above judgements are as follows:
+Judgement 03 settles a dispute between (i) plaintiff – L Joint Stock Company and (ii) defendant – V Company Limited regarding the amount of VND2,000,000,000 that V Company Limited borrowed from L Joint Stock Company. The defendant – V Company Limited, disagreed with the plaintiff’s claim and submitted that on May 20, 2013, both parties signed Contract No.24/HDKT requiring the payment of an advance amount of VND3,000,000,000 immediately after signing. After that, on May 21, 2013, both parties signed the minutes on debt confirmation, agreeing to use the loan of VND2,000,000,000 as the advance amount under Contract No.24/HDKT. Disagreeing with this statement, the plaintiff submitted that despite signing the minutes on debt confirmation, V Company Limited failed to perform the contract, so V Company Limited is still obliged to repay the loan to the plaintiff. During the first-instance stage, the defendant – V Company Limited, was summoned twice but did not appear and did not provide any plausible reason for not doing so. Accordingly, the first-instance court, basing its decision on the documents submitted up to the time of the first-instance trial, forced V Company Limited to repay the loan of VND2,000,000,000 and the incurred interest to L Joint Stock Company.
However, V Company Limited appealed and later submitted documents and evidence to the appellate court proving that the work related to Contract No.24/HDKT was actually conducted. This meant that the loan of VND2,000,000,000 was actually used as an advance payment for Contract No.24/HDKT and V Company Limited was not obliged to repay L Joint Stock Company. Based on the documents and evidence later submitted, the appellate court ordered an amendment to the first-instance judgement and rejected the entire claim of L Joint Stock Company.
Analyzing the above case, it can be seen that the evidence submitted by V Company Limited at the appellate stage certainly could have been submitted at the first-instance stage with the parties’ statement. Further, there is a high possibility that the first-instance court requested V Company Limited to provide the documents proving the performance of Contract No.24/HDKT. However, it can be seen that the new evidence submitted by V Company Limited was used by the appellate court, without considering the provisions of Article 96, as the basis for settlement of the lawsuit. In addition, it should be noted that at the first-instance stage, the defendant – V Company Limited was summoned twice but did not appear without providing any plausible reason. So the question remaining unanswered is whether, assuming that the first-instance court had requested V Company Limited to submit the documents and evidence proving the performance of Contract No.24/HDKT, V Company Limited had any plausible reason for failure to do so.
+Judgement 04 settles a dispute between (i) plaintiff – P Asphalt Company Limited and (ii) defendant – GT1 Construction Corporation regarding the amounts due under asphalt purchase contracts. In particular, the plaintiff and defendant disputed whether the amount of VND1,829,688,300 was paid for which contracts, i.e., those before or after the lawsuit. The plaintiff claimed that this amount was for contracts after the lawsuit, while the defendant claimed that this amount was for contracts before the lawsuit and needed to be deducted from the plaintiff’s damage claims in the lawsuit.
At the first-instance stage, the court determined that the amount of VND1,829,688,300 was paid for contracts before the lawsuit and therefore it would be deducted from the unpaid amounts in this lawsuit with the reasoning that “Considering that the plaintiff could not provide documents proving that the two parties had the purchase contracts after December 01, 2017, the first-instance court accepts the defendant’s position and offsets the amount of VND1,829,688,300 that the defendant transferred to the plaintiff on December 07, 2017 from the previous debts which were in dispute (belonging to the contracts under this lawsuit) and accepts part of the plaintiff’s claim”.
However, at the appellate stage, the plaintiff submitted documents proving that VND1,829,688,300 was paid for the transactions after the plaintiff filed the lawsuit, including Official Letter No.1173 dated December 12, 2017 sent to the plaintiff by the defendant, and other relevant evidence. In particular, Official Letter No.1173 dated December 12, 2017 clearly stated that the defendant – GT1 Construction Corporation confirmed VND1,829,688,300 was paid for orders made after December 01, 2017, which were transactions made after the plaintiff filed the lawsuit. Based on this evidence, the appellate court decided to amend the first-instance judgment and accepted the entire claim of the plaintiff (not offsetting the amount of VND1,829,688,300 with the amount claimed by the plaintiff).
This judgement clearly shows that the first-instance court requested the relevant documents and evidence proving whether there were other transactions between the plaintiff and the defendant after the plaintiff filed the lawsuit. Further, because the plaintiff did not submit these documents, the first-instance court determined the case in defendant’s favor. However, during the appellate stage, the court did not consider this fact in deciding whether to accept the evidence submitted by the plaintiff, but instead, freely used the later-submitted evidence to settle the case.
The 2015 Civil Procedure Code contained significant improvements over the 2004 Civil Procedure Code in clearly providing the time limit for submission of evidence. However, it appears that the courts are still “familiar” with the previous rules and procedures as well as having concerns that judgements and decisions can be cancelled or amended due to being inconsistent with the objective facts. Therefore, the provisions under Article 96 are not effectively applied in practice.
However, it should be noted that besides respecting the objective facts of the case, the courts in general and the judges settling the case in particular, should be strict with the parties to ensure that they respect and obey the “play rule” provided in the Civil Procedure Code so that the time for settlement of lawsuit will not be prolonged or to create unnecessary work for the courts.
 Article 287, the 2015 Civil Procedure Code.
 Article 330, the 2015 Civil Procedure Code.