THE
SOCIALIST REPUBLIC OF VIET NAM AND HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CIVIL
MATTERS
The
Socialist Republic of Viet Nam and Hungary (hereinafter individually:
Contracting Party; hereinafter collectively: Contracting Parties),
Desiring to
strengthen mutual legal cooperation in civil matters between the Contracting
Parties on the basis of mutual respect for sovereignty and equality as well as
mutual advantages,
Have agreed
on the following:
1. The
Contracting Parties shall provide each other, in accordance with the provisions
of this Agreement, mutual legal assistance in the following issues related to
civil matters:
a) service
of judicial and extra-judicial documents;
b) taking
and transferring of evidence;
c) summons
of witnesses and experts;
d)
recognition and enforcement of decisions and arbitral awards as provided for in
Part Four of this Agreement;
e) exchange
of legal information and documents relating to civil matters and mutual legal
assistance in civil matters;
f)
providing and transferring of civil record documents;
g) other
requests for mutual legal assistance.
2. The term
“civil” in this Agreement shall include civil, marriage and family, business,
commercial and labour matters.
3. Unless
otherwise provided in this Agreement, the term “competent authorities” means
all courts and other authorities that have competence in civil matters pursuant
to the law of the Contracting Party concerned.
1. Citizens
of either Contracting Party shall, in the territory of the other Contracting
Party, enjoy the same judicial protection of personal and property rights as
citizens of the other Contracting Party and have the right to access to and
exercise procedural rights before the courts and other competent authorities
having jurisdiction over civil matters of the other Contracting Party under the
same conditions accorded to the citizens of the other Contracting Party in
civil matters.
2. The
provisions of this Agreement shall also apply to legal persons and other
entities without legal personality established in the territory of one of the
Contracting Parties pursuant to its national law.
1. In the
course of the application of this Agreement, the authorities of the Contracting
Parties acting in civil matters shall contact each other through the designated
Central Authorities of the Contracting Parties.
2. The
Contracting Parties shall communicate the data on the designated Central
Authorities and any changes thereof to each other through diplomatic channels
simultaneously with the communication under Article 32 on the ratification of
the Agreement, whereas later changes shall be communicated without delay.
3. In order
to facilitate communication between each other, the Central Authorities of the
Contracting Parties shall designate a contact person whose name and contact
details as well as any changes thereof shall be communicated to each other.
4. This
Agreement shall not prevent the Contracting Parties from sending requests for
legal assistance through diplomatic channels.
1. If there
are proceedings pending before the authority of either Contracting Party,
between the same parties, initiated for the same right arising from the same
factual basis, and the decision made therein may be recognised and enforced on
the basis of the Agreement in the territory of the other Contracting Party, the
authority of this other Contracting Party may terminate the proceedings
commenced before it subsequently.
2. For the
application of paragraph 1, the authorities of the Contracting Parties may,
through the Central Authorities, request information on proceedings pending in
the territory of the other Contracting Party.
1. The
language of communication between the Central Authorities shall be English.
2. Unless
otherwise provided in this Agreement, requests for legal assistance as well as
accompanying documents shall be prepared by the requesting authority in its own
language and the requesting authority shall attach thereto a certified
translation in the language of the requested authority.
3. The
requested authority shall send its reply to the request for legal assistance
and the documents attached thereto in its own language.
1. Public
documents issued by the competent authorities of one of the Contracting Parties
as well as private documents carrying an official clause such as, in
particular, the certification of registration, signature or identity, that are
forwarded under Article 3 in the course of the application of the Agreement,
shall not require additional legalisation. The sending Contracting Party shall
ensure the authenticity of the documents sent as indicated above.
2.
Notwithstanding paragraph 1, if there is reasonable doubt that the signature,
the status of the signing person or the seal or the stamp is not authentic, the
competent authority of the Contracting Party may, in the manner specified in
Article 3, request the Central Authority of the other Contracting Party to
verify the authenticity of the documents. Such verification may only be
requested in exceptional cases, indicating the underlying reasons.
Execution of legal assistance requests
1. The
requested Contracting Party shall execute requests for legal assistance in accordance with its national law.
2. The
requested Contracting Party may execute requests for legal assistance in a
specific manner requested by the requesting Contracting Party if such execution
is not contrary to the law of the requested Contracting Party.
3. If the
address indicated in the request is inaccurate or the addressee named in the
request cannot be found at the given address during execution of the request
for legal assistance, the competent authority of the requested Contracting
Party shall return the request to the requesting Contracting Party or take the
necessary measures to determine the address ex officio, provided that it
possesses the necessary data for that execution.
4. Unless
otherwise provided in this Agreement, a request for legal assistance shall be
timely and expeditiously executed within one hundred and twenty (120) days from
the date of receipt of the request. In case of delay for legitimate reasons,
the requested Contracting Party shall promptly inform the requesting
Contracting Party.
Refusal and postponement of legal assistance
1. The
requested Contracting Party may refuse to execute the request submitted under
this Agreement, if it considers that executing the request would prejudice its
sovereignty, public safety, public order or the fundamental principles of its
legal order, or if executing the request does not fall within the functions of
the competent authorities of the requested Contracting Party. The requested
Contracting Party shall, within thirty (30) days from the date of the receipt
of the request, inform the requesting Contracting Party of the reason for
refusal to execute the request.
2. The
execution of a request for legal assistance may be postponed if the requested
Contracting Party finds that the immediate execution of the request is likely
to impede ongoing proceedings in the territory of the requested Contracting
Party. The requested Contracting Party shall inform the requesting Contracting
Party of the reasons and a foreseeable duration of the postponement within
thirty (30) days from the date of receiving the request.
1. The
Contracting Parties shall provide each other legal assistance free of charge,
except for the following cases:
a) expenses
relating to a witness or expert shall be subject to Articles 14 and 15 of this
Agreement;
b) expenses
of an expert or interpreter relating to the execution of request for taking
evidence as provided for in Article 13 of this Agreement if the expert or
interpreter is not a public servant. In such cases, the Contracting Parties
shall consult each other to determine these expenses;
c) expenses
related to recognition and enforcement of decisions and arbitral awards in the
courts of each Contracting Parties;
d) costs of
service of documents in accordance with Article 12 of the Convention on the
service abroad of judicial and extrajudicial documents in civil or commercial
matters, done at The Hague, on the 15th day of November, 1965 (hereinafter;
Hague Service Convention);
e)
extraordinary or particular expenses if the requesting Contracting Party
requests for execution according to a special procedure.
2. The
requested Contracting Party may claim the advancement and the reimbursement of
costs under this Article in accordance with the law of the requested
Contracting Party.
PROCEDURE FOR LEGAL ASSISTANCE
1. A
request for service of documents shall be in writing and shall contain the
following information:
a) date and
place of issuance of the request;
b) full
name, address and any other contact information of the requesting authority,
including telephone and fax number as well as e-mail address;
c) full
name, address and any other contact information of the requested authority (if
known);
d) a list
of documents to be served;
e) full
name and address of addressee, and if known: gender, citizenship, occupation,
place of birth of the addressee as well as name and address of his/her
representatives;
f)
information on the nature of the case;
g)
description of the requested special procedure to serve documents (if any).
2. The
request and the documents to be served shall be sent in two (2) copies.
3. If
service under this Article cannot be effected in sufficient time to enable the
addressee to arrange for his/her defence, the requested Contracting Party may
refuse the execution of the request.
4.
Notwithstanding paragraph 2 of Article 5, if there is no certified translation
in the official language of the requested Contracting Party attached to the
documents to be served or the documents are not written in that language, the
documents can only be served on the addressee if that person accepts them
voluntarily.
5. The
Contracting Parties may request service by electronic means (e- service)
subject to legal and practical conditions in both Contracting Parties.
6. The
requested Contracting Party, after serving the documents, shall send to the
requesting Contracting Party a certificate or other documents proving the
service of documents or notify the requesting Contracting Party of the reasons
that prevented full or partial execution of the request of service of
documents. A copy of the certificate or other documents may, upon request, be
sent by fax or e-mail before the original is sent by post.
7. The
authorities of the Contracting Parties may also serve documents by post to
persons residing in the territory of the other Contracting Party, however due
service can only be effected if the following requirements are met:
a) the
document has been sent as a registered letter with acknowledgement of receipt,
and
b) a
certified translation has been attached to the document in the official
language of the Contracting Party where service takes place, unless the
addressee is a citizen of the sending Contracting Party, and
c) the
addressee voluntarily accepted the document, and attested the receipt with the
addressee’s signature, and
d) the
service takes place in sufficient time to enable the addressee to arrange for
the addressee’s defence.
Execution of service of documents under the Hague Service
Convention
Notwithstanding
Article 10, the Contracting Parties may apply the Hague Service Convention.
1. Taking
of evidence means in particular transferring physical evidence or documents;
hearing parties, witnesses, experts and other persons; performing inspections.
2. The
request for the taking of evidence shall be drafted by the authority in the
proceedings of which the necessity of legal assistance arises, and it shall
contain the following information:
a) full
name of the requesting authority and, if known, of the requested authority;
b)
designation of the case, including the nature and subject matter of the case,
and a brief presentation of the facts of the case, as well as the name of the
parties involved in the proceedings and their possible legal representatives;
c) full
name, address, residence and if known the number of identity card (citizen
card), passport and, if necessary, citizenship, occupation and other data of
those persons at whom the request is directed and their possible legal
representatives; or the full name, registered address or centre of
administration in the case of legal persons;
d) the
purpose, summary of the request, the information necessary for the execution of
the request, including questions to be put to the concerned persons or
organizations; documents or materials to be examined; and necessary measures
(if needed).
The handling of a request for the taking of evidence
1. At the
request of the requesting authority, the requested authority shall communicate
the place and time of the execution of the legal assistance in a timely fashion.
2. Subject
to legal and practical conditions in the requested Contracting Party, the
request for taking of evidence shall include establishing the address of a
person, residing in the territory of one of the Contracting Parties, against whom a person, having domicile or residence
in the territory of the other Contracting Party, presents a claim in a matter
falling under paragraph 2 of Article 1
and, furthermore, also establishing the place of work of and the amount of
income of the person against whom a claim for maintenance has been filed. In order to facilitate such
requests being completed, the requesting
Contacting Party shall communicate all data available in the case.
3. The
requested Contracting Party shall inform in writing the requesting Contracting
Party of the outcome of the execution of the request, attaching the requested
evidence and related documents, or of the obstacles to execution.
Summoning of witnesses and experts
1. The
appearance of a witness or expert residing in the territory of the other
Contracting Party shall be voluntary, no coercive measure may be used against
witness or expert who does not appear.
2. The
summons shall be served on the witness or the expert at least ninety (90) days
before the day on which he/she must appear before the competent authority of
the requesting Contracting Party.
3. In the
summons, the witness or the expert shall be informed of his/her rights and
obligations, the conditions for the advancement and reimbursement of his/her
costs and fees, and the manner of payment. In the summons, no reference shall
be made to the use of any coercive measure against the witness or the expert.
4. If
possible, the requested Contracting Party shall inform the requesting
Contracting Party on whether the person summoned intends to comply with the
summons.
Protection and costs of witnesses and experts
1. A
witness or expert who has been summoned from the territory of the other
Contracting Party, and who appears before the authority of the requesting
Contracting Party shall not be, in the territory of this Contracting Party,
subjected to criminal proceedings, be arrested, have his/her personal freedom
restricted in any manner for any act or on the basis of any conviction, that
has been committed before his/her entry into the territory of the requesting
Contracting Party.
2. The
protection under paragraph 1 of this Article shall cease after fifteen (15)
days following the day on which the competent authority of the requesting
Contracting Party has, in writing, officially communicated to the witness or
expert that his/her presence is no longer necessary, if the witness or the
expert has not left or has left, but returned to the territory of the
requesting Contracting Party. This 15 day period of time shall not include any
period of time during which the witness or the expert was not able to leave the
territory of the requesting Contracting Party through no fault of his/her own.
3. The
witness or the expert may claim the reimbursement of his/her travel and
subsistence expenses, as well as fees. These costs shall be borne by the
requesting Contracting Party. The subsistence expenses and the fees shall be
determined to be at least as high as the amounts determined in the schedules of
fees and provisions in force at the Contracting Party where the hearing is to
be performed. At his/her request the whole or part of the travel and
subsistence expenses shall be advanced to the witness or the expert.
4. The
requesting Contracting Party shall facilitate the witness’ or expert’s entry to
and stay in the territory of the requesting Contracting Party in accordance
with its national law.
Sending of public documents on civil status
1. Each
Contracting Party shall, upon request in accordance with Article 3, send to the
other Contracting Party the documents on the civil status of the: citizens of
the latter as provided for by the law of the Requesting Contracting Party
(court decisions, extracts from the civil register and certified copies).
2. The
documents mentioned in paragraph 1 shall be sent to the other Contracting Party
without a translation in accordance with Article 3.
Provision of information on the law
1. Upon
request, the Central Authorities of the Contracting Parties provide information
on the legislation of their States as well as the case law of the courts.
2. In case
the provision of information on the law of the requested Contracting Party is
necessary for making a decision in a case pending before an authority acting in
a civil case, the Central Authority of the requested Contracting Party shall provide, on the basis of a request of
the requesting authority forwarded under
Article 3, information on its legislation and the case law of the courts.
3. The
request under paragraph 2 shall contain the following:
a) full
name of the requesting authority;
b) a brief
description of the case and the indication of additional pieces of information
which may facilitate the response;
c) the
questions for which information on the law of the requested Contracting Party
is necessary.
4. The
requested Contracting Party shall provide the information in its official
language or, if available, in English.
Exemption from security for litigation costs
A citizen
of either Contracting Party, who has domicile or residence in the territory of
one of the Contracting Parties shall not be obliged to provide security in the
territory of the other Contracting Party for litigation costs or any other
security because he/she is a foreigner or because he/she has no domicile or
residence in the territory of the Contracting Party before the authority of
which he/she proceeds.
Entitlement to legal aid and benefits of litigation costs
Citizens of
either Contracting Party shall be entitled to legal aid and benefits of
litigation costs in the territory of the other Contracting Party under the same
conditions and to the same extent applying to citizens of the other Contracting
Party.
Application for legal aid and benefits of litigation costs
1. Citizens
of either Contracting Party may apply for legal aid and benefits of litigation
costs provided for by Article 19.
2. Such
application shall be submitted
a) directly
to the competent authority of the Contracting Party in the territory of which
legal aid, benefits of litigation costs is sought; or
b) through
the competent authority of the Contracting Party of the applicant’s
citizenship; this authority shall forward the application and its enclosures to
the competent authority of the Contracting Party in the territory of which
legal aid, benefits of litigation costs is sought in accordance with paragraph
1 of Article 3.
3. The
application and its enclosures shall be supplemented with a certified
translation into the language of the Contracting Party in the territory of
which legal aid, benefits of litigation costs is sought.
4. The
authority that makes a decision on the application, may request supplementary
information from the applicant if it considers it necessary.
RECOGNITION AND ENFORCEMENT OF DECISIONS
General provisions relating to recognition and enforcement
of decisions
1. The
provisions of this Part shall not apply to decisions made in procedures
relating to insolvency.
2. For the
purposes of application of this Part “decision” means any final and binding
judgement or other decision given by a competent authority of a Contracting
Party in a civil matter, whatever the decision may be called. This definition
includes, in particular, decisions brought in regard to civil claims asserted
in criminal and administrative cases as well as extrajudicial decisions made
regarding personal status, marriage, family, succession or commercial matters.
Recognition and enforcement of decisions
1. A
decision made by the authority of either Contracting Party in the matter of
personal status and dissolution or invalidity of marriage shall be recognised
in the territory of the other Contracting Party without any additional
proceedings. This provision shall not prevent any interested person from
applying, in accordance with the law of this other Contracting Party, to the
court of the other Contracting Party to declare that the decision is recognised
or not recognised in the territory of the other Contracting Party.
2. A
decision made by the authority of either Contracting Party not covered by
paragraph 1 shall be recognised in accordance with the procedural law of the
Contracting Party in the territory of which recognition is sought.
3. A
decision recognised by either Contracting Party pursuant to paragraph 1 or 2
has the legal effect under the law of the decision-making Contracting Party in
the territory of the Contracting Party of the place of recognition.
4. A
decision recognised under paragraph 2 of this Article that is enforceable under
the law of the decision-making Contracting Party shall be enforced in
accordance with the law of the Contracting Party in the territory of which
enforcement is sought.
Refusal of the recognition and enforcement of decisions
1. The
recognition and enforcement of decisions under Article 22 shall be refused if:
a) the
authority of the Contracting Party which made the decision had no jurisdiction
to decide the case pursuant to the law of the Contracting Party in the
territory of which recognition and enforcement of the decision is sought;
b) the
defendant or the person against whom the decision to be enforced has been made
did not participate in the proceedings because the document instituting the
proceedings had not been duly served on that person in sufficient time to allow
that person to prepare the defence;
c)
proceedings for the same right arising from the same factual basis between the
same parties was commenced at the authority of the Contracting Party in the
territory of which recognition and enforcement of the decision is sought
earlier than at the authority of the Contracting Party where the decision was
made;
d) a final
and binding decision regarding the same right arising from the same factual
basis between the same parties was made earlier by the authority of the
Contracting Party in the territory of which recognition and enforcement of the
decision is sought;
e) a final
and binding decision has been made earlier in a third state regarding the same
right arising from the same factual basis between the same parties which may be
recognised and enforced in the territory of the Contracting Party in which
recognition and enforcement of the decision is sought;
f) the
recognition or enforcement of the decision is contrary to the public policy of
the Contracting Party in the territory of which recognition and enforcement is
sought.
2. If, in
matters regarding personal status and family law, jurisdiction is based on
citizenship according to the law of either Contracting Party, in the course of
the application of point a) of paragraph 1 both citizenships shall be taken
into account of a person who is a citizen of both Contracting Parties.
Application of national law for the recognition and
enforcement of decisions
If a
decision made by the authority of either Contracting Party cannot be recognised
or enforced in the territory of the other Contracting Party pursuant to the
provisions of this Agreement, the Agreement shall not prevent recognition and
enforcement of the decision pursuant to the national law of this latter
Contracting Party.
Application for recognition or enforcement of the decision
1. The
application for recognition or enforcement of the decision may be submitted
directly to the competent authority of the Contracting Party in the territory
of which recognition or enforcement is sought.
2. The
application may also be submitted to the authority which made the decision of
first instance in the case; in such an event, the application shall be sent to
the authority of the other Contracting Party, through the Central Authorities;
however, the task of the Central Authorities shall be limited to sending the
application and its enclosures.
3. The
application shall contain the following information:
a) name and
address of the applicant and, where applicable, the name and address of the
legal representative of the applicant;
b) name and
address of the opposing party and, where applicable, the name and address of
the legal representative of the opposing party;
c) where
applicable, information related to the property of the opposing party in the
territory of the Contracting Party in which enforcement is sought; and
d)
additional information that can facilitate making the decision on recognition
or enforcement.
4. The
following shall be enclosed to the application:
a) the
decision or its certified copy,
b) the
certificate which certifies that the decision is final and binding and
enforceable, unless this is apparent from the decision itself;
c) a
certificate stating that the document instituting the proceedings has been
served duly and in sufficient time on the losing party who did not participate
in the lawsuit;
d) the
certified translation of the application as well as the documents mentioned
under point a) to c) in the language of the Contracting Party in the territory
of which recognition or enforcement is sought.
Procedures related to recognition or enforcement of
decisions
1. The
national law of the requested Contracting Party shall apply to issues regarding
the procedures on recognition or enforcement of decisions not regulated in this
Agreement.
2. A
decision made by the authority of the other Contracting Party shall not be
reviewed on the merits. The court deciding on the application for recognition
or enforcement shall solely resort to determining whether the conditions for
recognition or enforcement, as determined under this Part, exist.
3. The
obligor may raise the objections against the enforcement allowed by the law of
the Contracting Party the authority of which has made the decision on the
enforcement.
The
provisions of this Part shall apply mutatis mutandis to settlements
approved by a competent authority.
Recognition and enforcement of arbitration awards
The
Convention on the Recognition and Enforcement of Foreign Arbitral Awards done
in New York, on June 10 1958 shall apply to recognition and enforcement of
arbitral awards made in the territory of either Contracting Party in the
territory of the other Contracting Party.
TRANSITIONAL AND FINAL PROVISIONS
Relationship with other International agreements
1. The
provisions of this Agreement do not affect the rights and obligations of the
Contracting Parties arising from other international agreements to which both
Contracting Parties are Parties.
2. This
agreement does not affect Hungary's obligations, including future obligations,
arising from the membership of the European Union.
1. Articles
21 to 27 of this Agreement shall also apply to recognition and enforcement of
decisions made and settlements approved prior to entry into force of the
Agreement but not before 16 February 1986.
2. The
Treaty on legal assistance in matters of civil, family and criminal law, signed
in Hanoi on 18 January 1985 shall apply to requests for legal assistance sent
to, but not yet executed by the requested Contracting Party before the date of
entry into force of this Agreement.
Dispute resolution, conciliation
1. The
Contracting Parties shall handle their contentious issues, which may emerge in
relation to the application, interpretation and execution of this Agreement, in
negotiations carried out via their Central Authorities.
2. The
Contracting Parties shall ensure the exchange of positions and opinions
regarding the implementation of the Agreement in the framework of the
mechanisms of cooperation existing between them.
3. The
Contracting Parties shall review and evaluate the implementation of the
Agreement every three years.
Ratification and entry into force
1. This
Agreement shall be ratified in accordance with the provisions of the national
law of the Contracting Parties. The Agreement shall enter into force on the
thirtieth day after the receipt of the last written notification through
diplomatic channels by which the Contracting Parties notify each other that
they have completed their ratification procedures.
2. This
Agreement is concluded for an indefinite period of time.
3. With the
entry into force of this Agreement the Treaty on legal assistance in matters of
civil, family and criminal law, signed in Hanoi on 18 January 1985, shall be
repealed.
4. Either
Contracting Party may terminate this Agreement by sending a written notice to
the other Contracting Party through diplomatic channels. Termination shall take
effect six months after the day on which it was received by the other
Contracting Party.
5. In the
event of the termination of the Agreement, requests for legal assistance
received before termination took effect shall be handled pursuant to the
provisions of this Agreement.
IN WITNESS
WHEREOF, the undersigned, duly authorised pursuant to their national law, do
sign the present Agreement.
Done at
Budapest, on 10 September 2018 in two original copies in the Vietnamese,
Hungarian and English languages. All three language versions are equally
authentic. In case of any contradiction or divergence of interpretation, the
English text shall prevail.
|
FOR THER SOCIALIST
REPUBIC OF VIET NAM |
FOR HUNGARY |
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