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The Vietnamese have an old saying, “Suing is Misfortune” (Vô Phúc Đáo Tụng Đình) which means that bringing a lawsuit to the court is a difficult and almost endless process, reflecting the common belief that going to court is a misfortune, damaging one's reputation and straining relationships between the parties involved. This perspective is partly accurate from Vietnamese law point of view because, although the right to file a lawsuit and request the court to protect one's legal rights and interests is a constitutional right of every citizen, exercising the right to sue and pursuing a case from start to finish is extremely challenging and may take years. Moreover, the final result may not be as expected and sometimes you may lose more than you gain despite winning the case.
Before deciding to file a lawsuit against someone in court to resolve a dispute, the plaintiff should carefully consider and clearly define what they aim to achieve from the lawsuit, and whether the outcome justifies the time and cost involved. Although litigation is often the best method for resolving disputes, sometimes a clever negotiation or reconciliation between the parties may result in a mutual agreement without going to court.
Therefore, this article summarizes a few questions that plaintiffs should ask themselves before signing the lawsuit petition and requesting the competent authority to resolve the dispute.
A. IS IT POSSIBLE TO FILE A LAWSUIT OVER THIS DISPUTE??
In principle, all civil disputes can be brought to court for resolution. However, in everyday life, there may be situations where a person mistakenly believes that their rights and interests have been violated, leading to the desire to file a lawsuit. But according to the law, such dispute will not be resolved by the court because:
First, The plaintiff does not have the right to sue because there is no legal basis to conclude that their rights and interests have been violated or that they need legal protection.
Example: Mr. A passed away in 2018, leaving behind an estate, which is house X, but without a will or any other agreement. Mr. A has a son, Mr. B, and Mr. B has a son, Mr. C. Mr. B is still alive, has full civil capacity, and is not prohibited from inheriting the estate under Article 621 of the Civil Code 2015. In this case, according to Vietnamese inheritance law, Mr. C, as the son of Mr. B, does not have the right to inherit his grandfather Mr. A’s estate, and therefore has no legal basis to file a lawsuit for the inheritance of the house X.
Second, The rights and interests of the plaintiff in the dispute are illegal.
Example: Mr. A and Mr. B entered into a loan agreement where Mr. A lent Mr. B money at an interest rate of 50% per year on the loan amount. Mr. B repaid the principal but did not pay the interest, leading to a dispute over the interest payment. In this case, the agreement of a 50% annual interest rate violates Article 468 of the Civil Code 2015, which stipulates that the interest rate cannot exceed 20% per year. Therefore, Mr. A’s claim for interest is illegal, and there is no legal basis for him to file a lawsuit over this dispute.
In practice, the court will still accept and resolve the plaintiff’s claims, even if those claims may not be legally grounded. However, in cases where the content of the dispute falls into the situations outlined above, the court will typically reject the lawsuit or, if already accepted, will suspend the case.
B. CAN YOU PROVE YOUR CLAIM?
Not every time your legal rights and interests are violated will you have a valid basis to request the Court to protect your interests. In other words, you must prove that your claim for a lawsuit is well-founded, meaning whether you have evidence to support your claim.
Example: In disputes involving claims for compensation for non-contractual damages due to health violations (such as a traffic accident), you must prove the damages you have suffered based on relevant evidence such as hospital bills, medical treatment records, documents showing lost or reduced income due to inability to work during the recovery period, police reports, or statements to establish fault on the part of the person responsible for the damage.
In practice, court proceedings in Vietnam show that the Court places more emphasis on evidence rather than testimonies. This means the Court tends to resolve cases based on written documents, audio or video recordings, electronic data, and expert opinions from competent authorities, rather than testimonies from the parties involved, witnesses, and other related individuals. This implies that if you do not have sufficient documents or evidence to support your claim, the Court may not accept your lawsuit, even if you have indeed suffered harm due to someone else's unlawful actions.
C. HAVE YOU MADE EFFORTS TO NEGOTIATE AND MEDIATE BEFORE FILING A LAWSUIT?
As a general principle, the law does not require parties in a dispute to negotiate or mediate before filing a lawsuit in court. However, during the dispute resolution process, the Court tends to encourage and motivate parties to negotiate and mediate, and will only proceed with a trial when negotiations or mediation fail. Actively negotiating and mediating to resolve disputes amicably is always encouraged as it saves time, money, and helps maintain goodwill between the parties.
Nevertheless, according to the law, some disputes must go through mediation before they can be brought to court:
Labor disputes between employees and employers must go through mediation by a labor mediator under Article 32 of the Civil Code 2015 and Article 188 of the Labor Code 2019.
Land disputes must be mediated at the local People’s Committee of the commune where the disputed land is located, as stipulated in Article 235 of the 2024 Land Law.
D. HAVE YOU CONSIDERED THE POSSIBILITY OF A COUNTERCLAIM?
In short, a "counterclaim" is when the defendant (the person being sued) files a lawsuit against the plaintiff in the same civil case. If the counterclaim is accepted, it may (i) offset all or part of the defendant’s obligation in response to the plaintiff's claim, or (ii) exclude the acceptance of part or all of the plaintiff’s claim.
Example for case (i): A sues B for 500 million VND for unpaid rent for 5 months. B files a counterclaim with the court, asking A to pay for all the repair costs due to house damage and the land use tax that B has paid on behalf of A, totaling 600 million VND. If the court accepts B’s counterclaim, the amount B receives will offset the amount A is requesting from B.
Example for case (ii): A has a privately owned car that was sold to C, but told B (A's biological child) that it was leased to C. After A’s death, B sues C for 100 million VND in unpaid rent for the past year. C files a counterclaim asking the court to recognize his ownership of the car. If the court accepts C's counterclaim, it would result in the court rejecting B's entire claim for the unpaid rent.
From these examples, the defendant's counterclaim may sometimes be worth much more than the plaintiff’s original claim. The right to counterclaim is clearly defined in Article 200 of the Civil Procedure Code 2015, and as a result, defendants will often exercise this right, leading to challenges and, at times, financial losses for plaintiffs pursuing their lawsuits.
Therefore, before deciding to sue someone, one should carefully consider the possibility of a counterclaim by reviewing related contracts, the progress of the contract's execution, outstanding debts, etc.
E. HAVE YOU CONSIDERED THE POSSIBILITY OF ENFORCING THE JUDGMENT?
The court may issue a judgment that accepts your claim, but it will not be responsible for enforcing that judgment for you, nor will there be any procedures or actions to assist you in enforcing it. In such cases, you may face the following risks:
(i) The losing party may not have the ability to enforce the judgment. For example, the person you sued may not have assets to compensate you according to the court's judgment, or may have been bankrupted.
(ii) The losing party may attempt to conceal assets to avoid fulfilling their obligations towards you.
(iii) The losing party may refuse to voluntarily enforce the judgment.
In these cases, you may need to request the Civil Enforcement Agency to enforce the judgment. As a result, you will incur the obligation to pay enforcement fees as well as any additional costs arising during the enforcement process to the relevant government authorities. Moreover, the enforcement process could take a long time and may incur significant time and financial costs for the judgment creditor. There is no guarantee that the assets recovered will fully and correctly match the court's judgment.
Therefore, you should take the time to carefully research the person or entity you intend to sue in order to assess their ability to enforce the judgment.
F. DO YOU HAVE THE TIME AND FINANCIAL CAPACITY TO PURSUE THE LAWSUIT?
In practice, the period from the time you file the lawsuit until the court’s judgment becomes legally effective can last for years, often causing prolonged stress for the parties involved in the case. If the party lives far from the court handling the case (e.g., in different provinces), the time pressure on that party will be even greater because the court has the authority to summon the parties to work (such as providing evidence, taking testimonies) and to attend hearings, regardless of the circumstances of the parties involved.
In terms of costs, when filing a lawsuit in court, the plaintiff may incur the following expenses, including but not limited to: advance court fees; on-site expert assessment fees (if any); property appraisal fees (if any); civil enforcement fees; costs incurred in preparing documents and evidence, such as notarization, making official records; judicial entrustment fees (if any); lawyer fees.
Additionally, if you are the losing party, meaning that the court rejects all of your claims, you will be responsible for the full court fees. In some cases, the court may also order the losing party to bear the legal fees of the winning party.
Therefore, time and money are always factors that you need to prioritize when deciding to sue someone. You should weigh the benefits you will gain against the costs you will incur when pursuing the lawsuit. Sometimes, the court may rule in your favor, but you may end up "losing" more than you "gain."
G. HAVE YOU CONSULTED A LAWYER BEFORE FILING A LAWSUIT?
Seeking professional legal advice from a lawyer before deciding to file a civil lawsuit plays an important role in helping the parties understand the legality of their claims, the challenges, and potential advantages in resolving the dispute.
Additionally, a lawyer involved from the beginning can provide useful advice on whether the party should pursue the lawsuit or opt for a softer approach, such as negotiation or mediation. The lawyer’s participation thus has a positive effect in helping the parties reach a mutual agreement, potentially avoiding a court case, and helping to shorten the time to resolve the dispute, saving both time and money for the parties involved.
If you need assistance with your disputes, Minh Thien Law provides professional legal services and will support you from the initial consultation to representation in litigation. If you have any questions, please send us via this link.
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Disclaimer:
This article
reflects the author's subjective viewpoint on the main topic mentioned in this article, providing the best reference value at the time of publishing;
is not considered the viewpoint or opinion of any state agency in any case; and
does not constitute legal advice from Minh Thien Law and should not be applied to resolve any specific legal situation.
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