Is the presence of the representative of the Procuracy required during the trial of the divorce case?
Under the applicable law, the presence of the representative of the Procuracy during the trial of the divorce case prescribed as follows:
- In a number of cases, the representative of the Procuracy will be required during the trial of divorce case:
- Case 01: If the Procuracy lodges a protest, the representative of the Procuracy shall be present at the appeal hearing in accordance with the general procedures and the appeal hearing in accordance with the simplified procedures for all the divorce cases (if any); and
- Case 02: The representative of the Procuracy shall be present during the cassation proceedings or for reopened cases for all divorce cases.
In the above cases, the absence of the representative of the Procuracy leads to the adjournment of the trial.
2. In a number of cases, the representative of the Procuracy may be required during the divorce trial:
- Case 01: The Court of first instance if the spouse suffers from mental illness or other illness and is thus unable to control his or her acts (civil act loss), has limited civil act capacity, or has difficulties in cognition and control over their own behaviours;
- Case 02: The Court of first instance in case the Court carries out the evidence collection;
- Case 03: The Court of first instance under the general procedures and the Court of the appeal under the simplified procedures in case the Procurary does not make the protest; and
- Case 04: During the appellate trial, one of the spouses in the divorce case appealed but the appeal does not make it within the time limit as prescribed by law; the meeting for the consideration of the out of time appeal may have the participation of the Procuracy representative.
In all the above-mentioned cases, if the representative of the Procurary is absent, the Court shall still conduct the trial or the meeting. Therefore, the participation of the representative of the Procurary during the trial of the divorce case is not required in all cases.
If any, what is the position of the representative of the Procuracy in the divorce case?
In practice, in divorce cases and according to the applicable law, the representative of the Procuracy shall carry out the supervision of judicial activities on behalf of the Procurary, specifically regarding the legality of acts, agency decisions, organisations, and individuals involved in the resolution of the divorce case. This supervision occurs in order to ensure the prompt and lawful resolution of divorce cases; thereby protecting the best and legitimate interests of the spouses to the divorce cases.
The nature of the Procuracy’s roles leads to the mandatory attendance of the Procuracy’s representative at the “cassation trial”. His or her attendance is mandatory because of the seriousness of the breach of the proceedings or conclusions in the judgements or decisions which are incompatible with objective facts of the case. It may also be because of the erroneous application of the law which leads to the issuance of incorrect judgements or decisions, thus damaging the State’s lawful rights and interests, that of the the spouses in a divorce cases, or that of a third party with related interest. This also leads to the mandatory attendance of the Procuracy’s representative at the “trial by reopening procedure” arising from the detection of important facts of the case that the spouses were unaware of during the case resolution or have grounds to prove the expert’s conclusion, the interpretation of the translator is faulty, fake evidence, the intentional misconduct of the Judges or Jurors, or due to related judgements or decisions which have been grounded by the Court have been canceled.
Particularly, during the trial of a divorce case, the Procurary has the following rights and responsibilities:
- Petitioning, requesting the Court to carry out properly the proceeding activities according to the regulations of the Civil Proceedings Code 2015;
- Requesting, petitioning the competent agencies, organisations to strictly deal with the people participating in the proceeding who violate the law;
- Supervising proceedings conducted by persons participating in the proceedings;
- Supervising the resolution of the divorce case; and
- Participating in the trials, meetings and presenting the view of the Procurary regarding the resolution of the divorce case.
Therefore, the proceeding of the representative of the Procurary plays an important role in the trial of divorce cases. However, the Procurary shall not interfere with the trial if the Court ensures that all judicial activities in this process are in accordance with applicable law.
 Article 314.2, Article 324.2, Article 338.1 and Article 357 of the Civil Proceedings Code 2015.
 Article 21.2 and Article 275 of the Civil Proceedings Code 2015.
 Article 21.1 of the Civil Proceedings Code 2015, Article 2 of the Law on Organization of People’s Procuracy 2014.
 Article 326 and Article 352 of the Civil Proceedings Code 2015.
 Article 58 of Civil Proceedings Code 2015.
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