- In the divorce case, will all information, documents and evidence provided by the spouses to the Court be considered confidential and if yes, shall the Court be obliged to keep it confidential?
Currently, there is no provision in the Civil Proceedings Code which states that information from the documents and evidence provided by the spouses to the Court in a divorce case must be considered as confidential. Besides, through other legal provisions of relevant regulations, such information could not be considered confidential due to the following reasons:
- Evidence provided by one spouse shall always be disclosed and made publicly available by the Court to the other spouses[2], except when the law provides otherwise.
In order to ensure fairness and transparency in the process of proceedings between the spouses, the Court shall allow the spouse to access the documents and evidence provided by the other spouse to the Court. That is the reason why the civil proceedings always include a “Session checking the submission, access, disclosure of evidence and conciliation”[4]. In addition to the spouses in the case, those involved in protecting the legitimate rights and interests of the spouses also have the right to access the documents and evidence. Additionally, the law requires that the spouses shall also send copies of the documents and evidence to the other spouses or their representatives when submitting documents and evidence to the Court. Therefore, the law will not prescribe information from documents and evidence submitted by the spouses to the Court as confidential information because this would interfere with the invoved spouses’ right to access the documents and evidence in a divorce case;
- In principle, the Court shall conduct the hearing publicly, unless the case is subject to a closed trial. Therefore, information from documents and evidence provided by the spouses to the Court will also be made public during the trial[6]. In addition, in the course of a public trial, relatives or friends of the spouses or anyone else have the right to attend the trial. Therefore, the information from the documents and evidence provided by the spouses and their relatives and families to the Court are accessible and knowable to the spouses when they are used at the trial.
However, there are still cases where the law requires the Court to keep the information provided by the spouses confidential as the nature of this information or the disclosure of such information may violate public interest or legitimate interests of the spouses. Therefore, the law prescribes that the procedure conducting authorities shall keep information related to the State secrets, preservation of the nation’s fine customs and practices, protection of minors, professional secrets, business secrets, personal secrets or family secrets of the spouses confidential. However, when it comes to any submitted information about the spouses, if a spouse makes a legitimate request to treat them as a confidential information, the Court shall not disclose this information publicly and shall inform the spouses about the documents and evidence which will not be rendered to the public[8]. The decision as to whether a document or evidence shall be kept confidential or not, except for those prescribed by the law on the protection of State secrets, is under Court decision but there have not been any specific guidance to be issued in this regard yet.
Similarly, in special cases, it is necessary to keep State secrets, preserve the nation’s fine customs and practices, protect minors, keep professional secrets, business secrets, personal secrets and family secret of the spouses at their legitimate requests[10]. In such a case, only those summoned by the Court are allowed to attend the trial. Consequently, no one else is entitled to participate, even relatives, friends or a common children of the spouses. However, the applicable law does not have a specific regulation on cases which must be closed trial. Therefore, the Court has its full power to decide whether to hear the case in a closed or public trial.
2. If yes and in the event of compensating for damage if such confidential information is leaked outside in any form, will the Court pay compensation to the victims?
If the information provided by the spouses is under the case that the Court has to keep it confidential and the spouses requested so to the Court then the Court shall keep it confidential. If the Court agrees to keep the information confidential, but later it is leaked outside (in any form), this means the Court has intentionally or unintentionally violated the regulations on protection of confidential information provided by the spouses. However, there is no legal provision on compensation liability of the Court in such cases. At present, when the Courts cause damage to the spouses or other individuals during their legal proceedings, the Courts must compensate in accordance with the law on State Compensation Liability. However, the Court only has to compensate in two cases of violation. Firstly, when they apply provisional emergency measures not complying with the regulations resulting in damage to any of the spouses. Secondly, when the Courts issues judgements or decisions with their clear awareness that it is unlawful or intentionally falsifying case files. There is currently no provision regarding the Court’s obligation to compensate in the case of information leakage causing damage to the spouses.
If the information was leaked due to the procedure conductor’s fault, the aggrieved
person may file a complaint to the Court
where the case is being handled together with a compensation claim to obtain
damages (if any). In this case even though it is not governed by the Law on State Compensation
Liability, it is still an act of
infringement of the proceedings and directly infringes the spouses’ legitimate
rights and interests. Consequently, a victim may still lodge his or her complaint
under Article 499 of the Civil Proceedings Code. The Civil
Proceedings Code also provides the complainant
the right to make a claim that their lawful rights and interests were infringed
upon under Article 500 of the Civil Proceedings Code. When making a complaint,
the spouse should clearly identify the object of the complaint, the person who
leaked the information and the enclosed documents and evidence proving his or her fault (whether it was unintentional or intentional) in the legal proceedings to expose the information
to outside. The obligation to prove belongs to the damage sufferers.
[2] Article 109.1 of the 2015 Civil Proceedings Code.
[4] Article 208 of the 2015 Civil Proceedings Code.
[6] Article 15.2 of Civil Proceedings Code 2015.
[8] Article 109.2 of the Civil Proceedings Code 2015.
[10] Article 15.2 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