The right of either the husband or the wife to request for change of the Judges, Jurors, Court Clerks
The right to request the change of persons conducting proceedings is one of the basic rights of the litigants to protect their rights and interests in a divorce case. In practice, there are many cases that the persons conducting proceedings including but not limited to Judges, Jurors, and Court Clerks are relatives of or have a close relationship with either the husband or the wife. At this time, it is difficult to ensure that they will participate in the settlement of the divorce case fairly and upright, likely infringing upon the legitimate interests of the other spouse. Thus, it is clearly prescribed by the laws that in such cases, Judges, Jurors, and Court Clerks shall decline when they are assigned to settle such divorce case. If they do not refuse, the litigants shall have the right to request for the change of such persons[2] to help the litigants protect their own legitimate rights and interests.
- Cases where persons conducting proceedings shall be changed (in such cases, the litigants shall have the rights to request the change of any persons conducting proceedings):
- The person conducting proceedings is also a litigant, a representative, or a relative of the litigant. For example, if a Judge is the husband’s uncle in a divorce case, the wife shall have the right to request the change of such Judge; and
- The person conducting proceedings has participated in the same proceedings as the person protecting the lawful rights and interests of the litigant(s), witness, expert, and interpreter. For example, in case the Court Clerks of the appeal hearing who has participated as a witness in a divorce case at first instance hearing, any litigants shall have the right to request a change of such Court Clerk.
- There is a clear legal basis that the persons conducting the procedure may not be impartial in their functions[5]. It means that, in addition to the cases set forth above, there is a clear ground to confirm that Judges, Jurors, Prosecutors, and Court Clerks cannot be objective in performing their duties when they are in any relationship including but not limited to an emotional relationship, a family relationship, business relationship, economic relationship, etc. with either of the litigants. For example: any Juror is a sworn brother of the plaintiff; the Judge is the defendant’s son-in-law; a person with related rights and obligations is a head of the agency where the Judge’s wife works for and so on. In those examples, there are clear grounds to prove that in their lives, there is an intimate emotional relationship or a business relationship among them[6].
2. In addition to the above cases, specific cases for the change of Judges, Jurors and Court Clerks has been stipulated in the Civil Proceedings Law specifically:
The cases of change of Judges, Jurors:
- All of them participate in the same Council of Adjudicators and are relatives with each other; in this case, only one person is permitted to conduct the proceedings. For example, if a Judge and a Juror in a case are two siblings, the litigants shall have the right to request the change of either of them;
- He or she has participated in settlement of such civil affairs, except where he or she was a member of the Judges’ Committee of the Supreme People’s Court or a Judges’ Committee of a Superior People’s Court, he or she maintains the right to participate in resolution of such affair under judicial review or retrial procedures. For example, the Judge has settled a divorce case at the first instance stage but the judgement of the Court of first instance is canceled and referred back to be reorganised by the appeal hearing. In such a case, if the such Judge is assigned to take proceedings at the second hearing, any litigant has the right to request the change of such person; and
- They have participated in a hearing of the same case as Verifiers, Court Clerks, Prosecutors or Controllers[8].
The cases of change of the Court Clerks:
- They have participated in a hearing of the same case as Judges, Jurors, Court Clerks, Verifiers, Prosecutor or Controller; and
- They are relatives of one of other persons conducting proceedings in a same divorce case.
Thus, when there are enough grounds for requesting the change of persons conducting proceedings, either spouses shall have the right to petition the Court to change any Judge, Jurors, or Court Clerk who are assigned by the Court to ensure objectivity in the process of resolving his or her divorce case.
Where will the request for such changes be submitted to?
Under the applicable Civil Proceedings Law, requesting the change of a person conducting the proceedings set forth above shall be made in writing or recorded in the minutes at the hearing. Such request shall be submitted to the authorised person to decide on the change of person conducting the proceedings according to the provisions set forth below:
- Prior to the commencement of a trial, the change of any Judge, Juror, or Court Clerk shall be decided by the Chief Justice of the Court. If where the Judge who is supposed to be replaced is the Chief Justice of the Court, such change shall be decided by Chief Justice of a one-level superior Court. For example: The change of the Judge being a Chief Justice of a district People’s Court is decided by the Chief Justice[10]; and
- At a trial, such a replacement shall be decided by the Council of Adjudicators. During the procedure for opening of a trial, the Presiding Judge shall ask persons having the right to petition the replacement of the person conducting the proceedings whether he or she has any petition. In the event that either spouses petitions the replacement of any Judge, Juror, or Court Clerk, the Council of Adjudicators shall consider and decide in accordance with procedures as prescribed by the Civil Proceedings Code 2015, whether to approve or disapprove such petition (if they do not approve, they must specify reasons). The decision on the replacement of persons conducting proceeding shall be discussed and passed by the Council of Adjudicators in the jury room and made in writing[12].
[2] Article 70.14 of the Civil Proceedings Code 2015.
[5] Article 52 of the Civil Proceedings Code 2015.
[6] Article 13.3 of the Resolution No. 03/2012/NQ-HDTP
[8] Article 53 of the Civil Proceedings Code 2015.
[10] Article 56 of the Civil Proceedings Code 2015.
[12] Article 235 of the Civil Proceedings Code 2015.
If you would like more information on how we can assist you with divorce issues, please contact us at: +84 (28) 36223522 or email us at info@phuoc-partner.com