Thẩm quyền là gì? Xác định thẩm quyền của Tòa án theo lãnh thổ?

What is jurisdiction? Jurisdiction of the Court by territory? The concept and how to determine the jurisdiction of the Court by territory?

Currently, the term “authority” is no longer strange to people, appearing more and more in daily life, especially when participating in legal relations. However, many people do not understand what authority is? Which authorities have the authority?

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1. What is jurisdiction?

Authority is the totality of rights and obligations given to certain entities to apply to solve certain specific issues within their management.

Each subject is an individual or an organization that is only assigned authority and can exercise those powers within a certain scope. And the content of the authority of all subjects in all fields must be prescribed by law, no one has the right to create “own authority” that goes beyond the scope of the law. .

This is not only a right of the subjects but it is also an obligation, which must be performed by actual behavior.

It is very important to determine the jurisdiction to deal with, to avoid overlapping and wrongly resolving the authority.

Although these are considered rights recognized by law and guaranteed to be exercised without anyone being restricted, this does not mean that competent entities can exercise these rights indiscriminately. present for a particular purpose. The exercise of these rights must be within the framework permitted by law.

Authority is the official right to be considered to conclude and decide, to decide on an issue.

In legal science: Authority is an important, central concept. Authority is understood as the summation of rights and obligations to act and make decisions of agencies and organizations under the State apparatus system as prescribed by law.

For example: The jurisdiction of the Court is all the rights prescribed by law, under which the Court is entitled to consider and settle specific cases according to the provisions of law.

see more: What is a national territory? What parts constitute a national territory?

Competent agencies are agencies that are given certain powers by the state to perform tasks within the scope of their management. such authority to make decisions, to notify in writing to direct and regulate work, to directly participate in the settlement of disputes in the fields under its competence.

Although empowered by the state, it is not for that reason that the competent agencies are free to use them, they must ensure the proper implementation of their authority and the scope of their agencies.

2. Jurisdiction of the Court by territory:

Jurisdiction of the Court is the total right prescribed by law, under which the Court is entitled to consider and settle specific cases in accordance with the law.

The meaning of determining the jurisdiction of the Court:

– Avoid overlapping duties, facilitate the Court to adjudicate quickly and properly with the nature of the case.

– Avoiding the situation of improper settlement or extrusion of responsibility between the Courts.

– Identify the necessary professional and professional conditions of the staff.

– Avoiding the case being canceled for re-trial, causing time and material costs.

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Create favorable conditions for civil judgment enforcement, transfer of judgments and decisions, and interpretation of judgments and decisions.

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– Create favorable conditions for involved parties to participate in defending their legitimate rights and interests before the Court.

In principle, the division of jurisdiction of the Court by territory must be conducted on the basis of ensuring that the Court’s settlement of civil cases is prompt and correct, ensuring the protection of the interests of the State. country, lawful rights and interests of the involved parties, but still ensure that the Court with jurisdiction is the Court most favorable for the involved parties’ participation in the proceedings, the Court with the most favorable conditions for settlement. decide the case. Basically the provisions on territorial jurisdiction in Articles 39 and 40 Civil Procedure Code 2015 inherited the previous regulations. However, there are also certain differences.

For example, the provisions at point c, Clause 1, Article 39 of the Civil Procedure Code in 2015 are more specific: “The object of the dispute is real estate, only the Court where the real estate is located has jurisdiction to settle the dispute.” “. This provision of the Civil Procedure Code 2015 seems to have gone in a more limited direction than the jurisdiction of the Court where the immovable property is located only to the case where the subject of the dispute is immovable property, not including disputes over property rights related to real estate. This provision is reasonable The court where the real estate is located has the most favorable conditions in carrying out verification measures, ensuring that the settlement of the case is close to the facts of the case such as considering , on-site verification (field verification); conduct asset valuation; collecting documents from the real estate agency… Currently, the Civil Procedure Code 2015 does not have an official definition of what is the case “the object of dispute is real estate” so that when transporting application can cover and pinpoint the Court having jurisdiction over civil disputes.

In addition, point b, Clause 1, Article 39 of the 2015 Civil Procedure Code stipulates: “The involved parties have the right to reach an agreement among themselves in writing to request the Court where the plaintiff resides and works…”. Thus, the right to self-determination of the involved parties has been highly respected and respected by the law, whereby if the defendant agrees with the plaintiff on the settlement of the case at the Court where the plaintiff resides and works, that Court cannot be refused. However, for a dispute where the object of the dispute is immovable property, the parties may not reach an agreement but still be settled by the Court where the real estate is located.
In addition to the provisions on determination of competence as above, in order to ensure convenience for plaintiffs in participating in the proceedings, at Point b, Clause 1, Article 39 of the Civil Procedure Code 2015 stipulates that plaintiffs, claimants may choose the Court without the consent of the defendant, the petitioner. This provision is completely in line with reality, creating favorable and flexible conditions for litigants to choose the Court with jurisdiction to deal with them, giving them the initiative in choosing the Court. Dispute settlement judgments in certain cases such as: Plaintiffs do not know the defendant’s place of residence, work, or headquarters; dispute about compensation for damage outside the contract;…

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3. How to determine the jurisdiction of the Court by territory:

Jurisdiction of the Court where the defendant resides

Clause 1, Article 12 of the Law on Residence 2006 (amended and supplemented in 2013) (abbreviated as the Law on Residence amended in 2013) stipulates: “Permanent place of residence is a place where citizens live regularly and stably, indefinitely in a certain place of residence and registered for permanent residence”. In fact, when determining a person’s permanent place of residence, we hardly pay too much attention to the factor “where citizens live regularly and stably” but we often only care about the factor “public place”. people who have registered for permanent residence”.

Article 18 of the Law on Residence amended in 2013 stipulates: “Registration registration means that a citizen registers his/her permanent residence with a competent state agency and is granted permanent residence registration by this agency. household registration book for them”. The agency competent to register is the police station of a district, town or township in the case of a centrally run city; Police of communes and townships of districts, Police of provincial towns and cities for provinces (Article 21 of the Law on Residence amended in 2013).

see more: Case exercises on jurisdiction to settle civil cases

Jurisdiction of the Court where the defendant temporarily resides

Clause 1, Article 12 of the Law on Residence amended in 2013 stipulates: “Temporary place of residence is a place where a citizen lives outside the place of permanent residence registration and has registered for temporary residence”. Actual observation shows that a person can live in many different places and to prove his/her temporary residence, he/she proves to be “registered for temporary residence”.

Article 30 of the Law on Residence amended in 2013 stipulates: “Temporary residence registration means that a citizen registers his/her temporary residence with a competent state agency and is granted temporary residence registration by this agency. temporary residence books for them” (Clause 1), and “Temporary residence books are issued to households or individuals who have registered for temporary residence, valid for determining the temporary residence of citizens and for a maximum period of two forty-four months” (Clause 4).

Jurisdiction of the Court where the defendant is living

There is a view that: “The place of residence of an individual is the place of permanent or temporary residence of that individual”. We do not completely agree with the above view, because it is incomplete. Because, the above view has omitted another place of residence, which is “where the individual is living” which will be presented in the next section.

Another point of view is that: “Where an individual regularly lives is his or her place of residence, regardless of whether they are registered for permanent residence or registered for temporary residence.” We do not completely agree with this view. Because, the above point of view is only expressed in reality, but in legal terms, it is not guaranteed.

Clause 1, Article 12 of the Law on Residence amended in 2013 stipulates: “Residence is a lawful place of residence that a person regularly lives. A citizen’s place of residence is a place of permanent or temporary residence. In addition, Clause 2, Article 12 of the Law on Residence, amended in 2013 stipulates: “In case a citizen’s place of residence cannot be determined according to the provisions of Clause 1 of this Article, the citizen’s place of residence is the place where that person resides. are living”.

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In addition, Clause 2, Article 5 of Decree No. 31/2014/ND-CP dated April 18, 2014 of the Government also stipulates: “In case the citizen’s place of residence cannot be determined according to the provisions of Clause 1, Article In this case, the citizen’s place of residence is the place where he or she is living and certified by the police of the commune, ward or township”. This means that the place of residence is still “where that person is living”, not in the case of permanent and temporary residence but must be certified by the police of the commune, ward or township.

see more: What is Territorial Management? Principles of combining industry management with territory management?

As mentioned above, in our opinion, place of residence has a broad connotation, including and can be “permanent place of residence”, or it may be “temporary residence”, or it can also be “place of a person”. that is living”. Among the above-mentioned places of residence, the Law on Residence requires mandatory registration for “permanent residence” and “temporary residence”, while the Decree instructs that certification is required from the Commune Police, ward, town for “where that person is living” to prove that someone is residing at that address.

However, reality is not always the same as the text. In many cases, an individual has a permanent place of residence, or a temporary place of residence, or has both a permanent place of residence and a temporary place of residence, and in addition he is living at an address other than the place of regular registration. residence and sojourn. Thus, this is not a case of an individual’s “unidentified place of permanent and (or) temporary residence” but a case of “identified place of permanent and (or) temporary residence” ” has just “identified the place where an individual is living”, according to us, the petitioner can choose a Court with jurisdiction: either the Court where the defendant permanently resides, or the Court where the defendant resides. temporary residence, or the Court where the defendant is living.

When wanting to sue an individual to the Court where that person is living, the petitioner must make a request to the police of the commune, ward or township where that person is living to certify that he or she is living at a certain address. Specifically, from there, the plaintiff files a petition to request the court where he or she is living to accept and settle the case in accordance with law.

Conclusion: Sending the petition to the right Court with jurisdiction is a very important factor in considering the acceptance of the case. If the case falls under the jurisdiction of another agency or organization, the Court will return the petition. initiate a lawsuit to a competent court. Therefore, in order to avoid wasting time and effort, the petitioner must pay close attention to this issue to ensure that his or her petition can be handled quickly.

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