The composition of the Council of Adjudicators in a divorce case will be similar to other civil cases. For the first instance trial, the Council of Adjudicators usually consists of 01 Judge and 02 Jurors. In special cases, the first instance trial commission may consist of 02 Judges and 03 Jurors. For the appellate stage, the Appellate Council of Adjudicators usually consists of 03 Judges.
If the divorce case shall be reviewed according to a judicial review or a retrial proceedings, the Council of Adjudicators shall consist of 03 Judges or the entire Committee of Judges of the Superior People’s Courts (if settlement according to a judicial review or a retrial proceedings shall be conducted at the Collegial People’s Courts); including 05 Judges or the entire Council of Supreme People’s Court (if settlement according to a judicial review or a retrial proceedings shall be conducted at the Supreme People’s Court)[2].
In a civil case, the law always raises the question that the Court must give an equitable judgement as fair as possible, not only in accordance with the law but also in accordance with the wishes of the spouses. This is the basis for stipulating that the Council of Adjudicators not only consists of Judges but also Jurors. Both the Judges and the Jurors are the ones who conduct the trial of divorce cases, with nearly equal powers in the trial process. However, their nature and roles are also a bit different, aiming to support each other in rendering equitable judgements. The following will analyse the roles of the Judges and the Jurors in resolving divorce cases.
Similarities:
- The Judges and Jurors who are both members of the Council of Adjudicators of civil cases, particularly divorce cases, have equal voting rights in resolving the cases, including rendering judgements, decisions on the cases, decisions on the application or cancellation of provisional emergency measures, decisions on replacement of civil procedure participants and other decisions falling under the jurisdiction of the Council of Adjudicators; and
- When hearing a divorce case, Judges and Jurors shall be independent and only comply with law. Being independent here means making decisions based on evidence and regulations of law to make decisions on the case without depending on any other effects. No one has the right to interfere in the decisions of Judges and Jurors during the trial process, to ensure fairness and transparency in decision making; and
- All have the right to research case files.
Differences:
Although there are many similarities as above, the roles of Judges and Jurors in a divorce case still have many differences due to the nature of each spouse’s work. The Judges are people who have extensive knowledge about the law, and must undergo a very rigorous selection, and appointment process to become a representative on behalf of the State to carry out the judicial work. Meanwhile, the Jurors hold concurrently many roles, they may be civil servants, officials operating in other professions and elected instead of appointed. In fact, the standards set for being elected or appointed as Jurors are still quantitative, and most of them are equipped with very basic knowledge of the law so when participating in Court sessions, their decisions are based primarily on life experience. Therefore, academically, they are equal to the Judge in making decisions but professionally, there are currently many limitations in certain cases. Therefore, provisions of law assigned them different roles in resolving the divorce cases.
| Stage | Judges | Jurors |
| Before the trial | The Judge(s) will play the role of resolving the divorce case from the time of receiving the petition for the divorce case until the decision to bring the cases to trial. The procedural acts and decisions related to the cases during this period are all carried out by the Judge(s) (after being assigned by the Chief Justice of the Court). Some of the roles that can be mentioned are: Handling lawsuit petitions, setting up a case file, collecting materials and evidences, holding meetings for disclosure of evidence and mediating, deciding where to apply provisional emergency measures; deciding when to suspend, terminate cases during this period; and deciding when to bring the case to trial. | They do not have a role at this stage |
| At the trial | Participates in the trial at the first instance and appellate trial, with the Court being carried out under simplified procedure. Act as the presiding Judge of the Court session or participate in Court sessions | Only participates in the first instance trial. Only participates in Court sessions but never act as the presiding Judge of the Court session |
| End of trial | Carries out procedures for delivering of Court’s judgements, handling appeals and protests (if any) | There is no role at this stage. |
Although the role as well as qualifications and legal knowledge of the
Jurors are quite limited compared to the Judges, the participation of the
Jurors is indispensable in resolving ordinary divorce cases, to ensure the Court to make equitable decisions for the spouses. Through the comparison table above, it can be
noticed that the Jurors play a key role in the trial phase. Considering the
context of Vietnam today, this role is reasonable. A Judge is a person who has
been trained from a basic to advanced expertise in adjudicating skills from the
acceptance of the cases, classification and organisation of records,
examination of evidence, etc. Therefore, the Judge is tasked to perform all
stages of the civil proceeding process, ensuring the legality of the civil
case. In a certain aspect, the Jurors are not responsible for ensuring that the
case is conducted in accordance with Civil Proceedings Law, but their main role
is shown by assisting the Judge in considering the case in many different
angles, limiting the risk of partial and one-sided, applying the law provisions
mechanically, stereotypes, helping the Court render convincing judgements,
limiting the litigants due to feeling resentful and non submission
but carrying out other legal proceedings which take time and effort for the
settlement. Therefore, it is common for Jurors to have different professions
depending on the nature of the cases, such as teachers, youth union members,
Women Unions, the elderly people, doctors, architects, ect.
[2] Chapter V of the Civil Proceedings Code 2015
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