CIVIL LITIGATION AND BUSINESS CONTRACT NEGOTIATION PROCESS

With the strong development and diverse changes of the market economy, the negotiation process in business plays an increasingly important role. Negotiation in general and business contract negotiation in particular are influenced by many factors and affect the interests of the parties involved.

Currently, business entities not only practice negotiation and contract signing skills, but they are required to have knowledge of civil proceedings to prevent any possible legal risks. Any social relationship can have conflicts or conflicts of interest, so lawsuits are known to be an effective last resort when the parties have a dispute but cannot resolve it. The resolution of a case at Court must comply with the correct order and procedures prescribed by law.

This article with the topic “Civil Litigation And Business Contract Negotiation Process” is exploited with the desire to help readers understand and know the civil litigation process in Court and some issues to note in business contract negotiations.

CIVIL LITIGATION PROCESS

1. Civil litigation

To begin with the topic “Civil Litigation And Business Contract Negotiation Process”, it is necessary to understand what civil litigation is. Although not specifically regulated, it can be seen that civil proceedings are a series of legal processes and procedures to resolve civil cases to ensure that these cases are resolved objectively, fairly, in accordance with the law and to ensure the legitimate rights and interests of individuals, agencies, organisations and the interests of the State. Along with civil proceedings, there are also administrative proceedings and criminal proceedings. Within the scope of this article, we will provide readers with the civil litigation process from the stage of filing a lawsuit until the case is resolved by the Court with a legally effective judgment or decision.

In principle, all civil proceedings of the agency conducting the proceedings, persons conducting proceedings, participants in proceedings, relevant agencies, organizations and individuals must comply with the provisions of the Civil Procedure Code and other relevant legal regulations.[1]

2. Civil litigation process

Understanding the Civil Litigation And Business Contract Negotiation Process is always necessary in commercial business activities. If during business contract negotiations, parties that do not anticipate legal risks can easily lead to conflicts during the implementation of business contracts, which, if unable to be resolved, will lead to disputes.

Individuals, agencies, and organisations may, on their own or through a legal representative, initiate a civil lawsuit at a competent court to request protection of their legitimate rights and interests. Accordingly, the order for resolving civil cases from the beginning to the end of the case is specifically summarised as follows:

Step 1: Submitting the lawsuit

In principle, the Court only resolves the plaintiff’s lawsuit request expressed in the petition. Therefore, to start the civil proceedings, the plaintiff needs to submit a petition along with documents and evidence to the Court with jurisdiction to resolve the case by the following methods: (i) Submitting directly to the Court; (ii) Sending it to the Court by postal service; (iii) Submitting online electronically via the Court’s Electronic Information Portal (if any).[2] At the same time, when preparing a petition, the following issues should be kept in mind:[3]

• Individuals with full capacity to act in civil proceedings can submit a petition themselves or ask someone else to act on their behalf.
• Individuals who are minors, people who have lost civil act capacity, or people who have difficulty in cognition and behaviour control, their legal representative can submit a petition themselves or ask someone else to act on their behalf.
• Individuals are illiterate people, people with visual disabilities, people who can not submit a petition themselves, people who can not sign or fingerprint themselves, they can ask someone else to act on their behalf and must have a person with full civil procedure capacity as a witness. The witness must sign the petition.
• If an agency or organisation is the one submitting a petition, the legal representative of that agency or organisation can submit a petition on their own or ask someone else to act on their behalf.

Step 2: Assigning a judge to review the petition[4]

Within 03 working days from the date of receiving the petition, the Chief Justice of the Court assigns a Judge to consider the petition. Within 05 working days from the date of assignment, the Judge must consider the petition and make one of the following decisions:

• Requesting amendments and supplements to the petition;
• Carrying out procedures to handle the case according to normal procedures or simplified procedures if the case meets the conditions for resolution;
• Transferring the petition to the competent Court and notifying the plaintiff if the case falls under the jurisdiction of another Court;
• Returning the petition to the plaintiff if the case does not fall under the Court’s jurisdiction.

Step 3: Accepting the case [5]

After receiving the petition and accompanying documents and evidence, if it is deemed that the case falls under the Court’s jurisdiction, the judge must immediately notify the plaintiff so that they can go to the Court to carry out procedures to pay court fee advances in case they are not exempted or do not have to pay court fee advances. The judge estimates the amount of court fee advance, records it in a notice and gives it to the plaintiff so they can pay the court fee advance. Within 07 days from the date of receiving the Court’s notice of payment of court fee advance, the plaintiff must pay the court fee advance and submit to the Court a receipt for the court fee advance. The judge accepts the case when the plaintiff submits to the Court a receipt for the advance payment of court fees. In case the plaintiff is exempted or does not have to pay court fee advances, the Judge must accept the case upon receipt of the lawsuit petition and accompanying documents and evidence.

Within 03 working days from the date of acceptance, the Court will notify the litigant and the Procuracy at the same level that it has accepted the request for resolution.

Step 4: Preparing for trial

According to the law, the time limit for preparing for trial of all types of cases (except for cases tried according to summary procedures or cases with foreign elements) is from 01 month to 04 months from the date of accepting the case.[6]

• For cases of complex nature or due to force majeure events or objective obstacles, the Chief Justice of the Court may decide to extend the trial preparation time limit but not to exceed 01 – 02 months depending on each specific case according to regulations.
• In case there is a decision to temporarily suspend the resolution of the case, the time limit for trial preparation is recalculated from the date the Court’s decision to continue resolving the case takes legal effect.

During the trial preparation stage, the Judge can request additional documents and evidence, issue decisions to suspend the consideration of applications, request appraisals, and asset valuations… If there are no results of appraisal or valuation of assets, the time to prepare for considering the request can be extended but not to exceed 01 month.

During the period of preparation for the first instance trial of the case, the Court conducts conciliation so that the litigants can agree on the settlement of the case, except for cases that are not conciliated or can not be conciliated or cases that are resolved according to summary procedures. If conciliation is successful, a decision will be issued to recognise the partiess agreement. If conciliation fails, the case will be brought to trial

Step 5: Bringing the case to first instance trial[7]

Within 01 month from the date of the decision to bring the case to trial, the Court must open a trial; In case there is a legitimate reason, this time limit is 02 months.

The first instance trial must be conducted at the time and location stated in the decision to bring the case to trial or in the notice of re-opening of the trial in case the trial must be postponed.

Step 6: Appealing against the First Instance Judgment

In case the litigant does not agree with the decision of the First Instance Judgment, or the Procuracy at the same level/Superior Procuracy discovers that the Court of First Instance resolved the case not in accordance with the law, affecting the legal rights of the litigant, they have the right to appeal against the First Instance Judgment to the Court of Appeal. The judgment/decision of the Court of Appeal is immediately valid and cannot be appealed.

BUSINESS CONTRACT NEGOTIATION

1. Business contract negotiation

In the rest of the article with the topic “Civil Litigation And Business Contract Negotiation Process”, the article will focus on generally exploring the nature and skills of contract negotiation in the business sector.

Because negotiation takes place in all areas of life, the definition of negotiation is not uniform. However, the purpose of negotiation is to find solutions to maximise benefits and minimise conflicts between participating parties. Therefore, it can be understood that negotiation is the behaviour and process by which two or more parties exchange and discuss common concerns and points of disagreement, to come to an agreement.

Accordingly, business contract negotiation is an exchange and discussion between two or more parties with a number of common and opposing interests in business for the purpose of reaching a general agreement and these agreements are made in writing and confirmed by the parties.

2. Business contract negotiation skills

Within the scope of the article “Civil Litigation And Business Contract Negotiation Process”, Some issues about business contract negotiation skills that negotiators need to pay attention to to avoid conflicts and risks during contract implementation are as follows:

Preparation for negotiation: this is an important stage, determining the success of the negotiation and limiting risks when implementing the contract. Accordingly, the parties need to carefully explore the following issues:

• Information on the characteristics of the subject of negotiation, along with relevant legal information, commercial practices, characteristics of market demand, etc.
• Information about partners: learn about legal status, capacity to perform contracts, check information about establishment licenses, business fields of partners, etc.
• Objectives to be achieved: there needs to be agreement on the plan and objectives of the negotiation, clearly defining the main objective, minimum objective, and maximum objective. In addition, the parties need to choose the appropriate type of contract, determine specific negotiation goals in terms of subject, price, delivery method, time and location, etc.

Negotiation process: this is the stage that determines the ability to conclude a business contract in accordance with the conditions and interests of the parties. To ensure effectiveness, the parties also need to consult with each other, pay attention to the working practices of each place, the temperature and weather where the negotiation takes place, because these can be factors affecting the negotiation outcome.

• Opening negotiations: creating a negotiating atmosphere of cooperation, goodwill and trust. The parties can open negotiations with simple issues first. Before answering a question, you should use thinking, communication, listening skills, observe attitudes and gestures to come up with an appropriate answer and follow-up negotiation plan.

Negotiation period:

• Expressing the wishes of the negotiating parties and the desired goals of the parties to convince their partners.
• Showing the sharing of interests to have successful negotiations. The interests of each side are considered guaranteed when the “concession” is within the limits of the negotiating margin.
• Ending negotiation: the parties complete the established agreements. The parties need to synthesise and reaffirm the finalised issues to avoid having different opinions when drafting the contract. Normally, the parties should prepare a draft contract and send it to the parties for their comments or giving the opinions before officially signing.

The above is an overview of Civil Litigation And Business Contract Negotiation Process. If you have difficulties in finding a Law Firm to advise and support in the relevant legal field, please contact us. Phuoc & Partners is a professional consulting firm established in Vietnam and currently has nearly 100 members working in three offices in Ho Chi Minh City, Hanoi and Danang. Phuoc & Partners is also rated as one of the leading consulting firms specialising in business law in Vietnam that has leading practice areas in the legal market such as Labour and Employment, Taxation, Merger and acquisition, Litigation. We are confident in providing customers with optimal and effective service.

[1] Article 3 the Civil Procedure Code 2015.

[2] Arrticle 189.1 the Civil Procedure Code 2015.

[3] Article 189 the Civil Procedure Code 2015.

[4] Article 191.2 the Civil Procedure Code 2015.

[5] Article 195 the Civil Procedure Code 2015.

[6] Article 203 the Civil Procedure Code 2015

[7] Article 222 the Civil Procedure Code 2015