If the defendant is absent from the place of residence, will the case be resolved?

According to the new provisions of the 2015 Civil Code, in case the defendant is absent at the place of residence, the judge will not return the petition but still accept the case for settlement.

According to the provisions of Article 169 of the 2004 Civil Code, which was amended and supplemented in 2011, when the Court has accepted the lawsuit petition, it is enclosed with a certificate proving the residence of the defendant or the person with interests and obligations. related by the local government, but during the settlement of the case, the Judge conducting the re-verification finds out that the defendant or the person with related interests and obligations in the case is absent from the locality before the time of the Court. the case was accepted, so the case was terminated according to point i, clause 1, Article 192 of the 2004 Civil Code, which was amended and supplemented in 2011; Pursuant to Clause 2, Article 169 of the CPC, the lawsuit petition shall be returned to the involved parties on the ground that the plaintiff cannot provide the new address of the defendant and the person with related interests and obligations in the case.

This situation has caused a lot of difficulties for the petitioner, especially when the defendant and the person with related interests and obligations leave the locality or intentionally hide the address of the place of residence in the form of constantly changing the address of the petitioner. change of residence address in order to avoid obligations, leading to unsolvable cases.

Since July 1, 2016, the Civil Code of 2015 took effect, which has overcome the above difficulties and problems. Specifically, at Point e, Clause 1, Article 192 of the 2015 Civil Code stipulates: “In the case in which the lawsuit petition is filed, the plaintiff has fully and correctly recorded the address of the place of residence of the defendant, the person with related interests and obligations. but they do not have a stable place of residence, frequently change the place of residence or head office without notifying the new address to the competent agency or person in accordance with the law on residence, making the petitioner If the lawsuit is not known for the purpose of concealing the address or evading obligations towards the petitioner, the judge will not return the lawsuit petition but determine that the defendant, the person with related interests and obligations intentionally concealed the address. and proceed to accept and settle according to general procedures”.

In Article 5 of Resolution No. 04/2017/NQ-HDTP dated May 5, 2017 of the Supreme Council of Judges of TAN D, guiding a number of provisions in Clauses 1 and 3, Article 192 of the 2015 Civil Code on the return of petitions. lawsuit, the right to file a petition to re-initiate the case. Accordingly, the petitioner has provided the address of the “place of residence, work, or place of office” of the defendant and the person with related interests and obligations to the Court in accordance with the law and guided in Clause 1, Article 5 of the Resolution at the time of filing a lawsuit petition, which is granted, certified by a competent agency or organization or has other grounds to prove that it is the address of the defendant, the person whose related interests and obligations shall be deemed to have been correctly recorded with the addresses of the defendants and persons with related interests and obligations.

The directions for handling the recording of addresses of the defendants and persons with related interests and obligations are as follows (Article 6 of Resolution 04/2017/NQ-HDTP):

  1. Where in the lawsuit petition, the plaintiff has fully and correctly recorded the address of the defendant and the person with related interests and obligations as guided in Article 5 of this Resolution, the court must receive the lawsuit petition. and consider and accept the case according to general procedures.
  2. If, after accepting the case, the Court fails to obtain a notice of the acceptance of the case because the respondent, the person with related interests and obligations no longer resides, works or has no head office. At the address provided by the plaintiff, the Court shall settle as follows:
  • In case in the lawsuit petition, the plaintiff has fully and correctly recorded the address of the place of residence, work or the place of office of the defendant, the person with related interests and obligations at the address stated in the contract. If the contract is translated, a written contract is considered to be “completely and correctly recorded with the address of the place of residence, working or head office” . In case the defendant or the person with related interests and obligations changes the place of residence, work or the place of headquarters associated with the performance of rights and obligations in the transaction or contract without notifying the initiator. A case of knowing about the place of residence, working or new head office as prescribed in Clause 3, Article 40, Point b, Clause 2, Article 277 of the Civil Code 2015 is considered as intentionally hiding the address and the Court continues to deal with it in accordance with the provisions of this Law. general procedures without suspending the settlement of the case because of failure to serve the defendant and persons with related interests and obligations;
  • Where in the lawsuit petition, the plaintiff has fully and correctly written down the address where the defendant’s office is located, the person with related interests and obligations being an agency or organization as guided at Point d, Clause 1. Article 5 of this Resolution is considered to have “completely and correctly recorded the head office address” . In case an agency or organization changes its head office but does not make it public as prescribed in Clause 1, Article 79 of the 2015 Civil Code, it is considered to have intentionally concealed its address and the Court continues to settle the case according to the provisions of Clause 1, Article 79 of the Civil Code. general procedures without suspending the settlement of the case because of failure to serve the defendant and persons with related interests and obligations;
  • In the case not specified at Points a and b, Clause 2 of this Article, but the Court has requested the plaintiff to provide the new address of the respondent or person with related interests and obligations but the plaintiff cannot provide it, he/she has the right to request a new address. The court collects and verifies the new addresses of the defendants and persons with related interests and obligations in accordance with law. If the Court cannot determine the new address of the defendant and persons with related interests and obligations, the Court shall terminate the settlement of the case according to the provisions of Point h, Clause 1, Article 217 of the 2015 Civil Code, except accordance with the instructions in Clause 3 of this Article.

Therefore, in case it is not possible to determine the residence of the defendant and the person with related interests and obligations, the court will not be allowed to suspend the settlement of the case to return the case file as before but must continue to settle the case according to the general procedures prescribed in the 2015 Civil Code. In case the court cannot determine the residence of the defendant and the person with related interests and obligations, the court may through the listing procedure for trial in absentia. Or the court may announce it on the mass media at the request of other involved parties in the case.

Source: According to kiemsat.vn

 

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Post Author: Nguyen Thi Tam