DISCIPLINARY ACTION AGAINST A PERSON HOLDING A JUDICIAL TITLE

[1] LEGAL BASIS

- Law on Cadres and Civil Servants 2008;

- Decision No. 120/QĐ - TANDTC, dated June 19, 2017 of the SPC issuing regulations on handling responsibilities of people holding judicial titles in the People's Court;

- Law on Organization of People's Courts 2014;

- Decree No. 34/2011/ND-CP, May 17, 2011 Regulations on disciplining civil servants;

- Labor Code 2012.

[2] Provisions on the disciplinary measure of dismissal of persons holding legal title in people's courts

According to Clause 1, Article 2 of Decision 120/QD-TANDTC, dated June 19, 2017, people holding judicial titles in People's Courts include Chief Justice, Deputy Chief Justice, Judge, Verifier, and Court Secretary.

Accordingly, in addition to the form of reprimand, warning and lowering of wage grades, depending on the seriousness of the violation, leading positions and managing judicial titles (CDTP) in People's Courts violating laws and/or regulations of the People's Courts but not to the extent of criminal liability shall bear the demotion and dismissal.

At your request, we would like to offer the advice on demotion.

According to Article 82 of the  Law on Organization of People's Courts 2014, judges shall be disciplined in the form of demotion in the following cases:

“Article 82. Dismissal of judges

1. Judges shall be automatically dismissed when they are convicted by a court under legally effective sentences.

2. Depending on the nature and seriousness of their violations, judges may be dismissed when:

a/ Committing a violation in the adjudicating work or when settling matters under the jurisdiction of their court;

b/ Violating the provisions of Article 77 of this Law:

“ - Providing consultancy to the accused, defendants, involved parties or other procedure participants, making the settlement of cases or other matters unlawful.

- Illegally interfering in the settlement of cases or taking advantage of their influence to influence persons responsible for settling cases.

- Bringing case files or documents in case files out of the premises of their agencies, unless for performing their assigned duties or approved by competent persons.

- Receiving outside prescribed places defendants, involved parties or other procedure participants in cases which they are competent to settle.”

c/ Possessing no ethical qualities;

d/ Violating the professional code of conduct and ethics of judges;

dd/ Committing another illegal act.”

[3] Competence over disciplinary measures of dismissal

- The President is competent to dismiss the Chief Justice of the Central Military Court who is the Deputy Chief Justice of the Supreme People's Court.

- The Chief Justice of the Supreme People's Court has the power to dismiss  the  officials including (According to the provisions from Clause 1, Article 35 to Clause 1, Article 61, Law on Organization of People's Courts 2014)

+ To submit to the National Assembly for approval the appointment, relief from duty and dismissal of judges of the Supreme People’s Court; to propose the President to appoint, relieve from duty or dismiss Deputy Chief Justices of the Supreme People’s Court and judges of other courts.

+ Chief justices of the superior people's courts

  + Deputy chief justices of the superior people's courts

  +  Chief justices of people's courts of provinces and centrally-run cities

 +   Deputy chief justices of people's courts of provinces and centrally-run cities

+ Chief justices of people's courts of rural districts, urban districts, towns, provincial cities and the equivalent

 +  Deputy chief justices of people's courts of rural districts, urban districts, towns, provincial cities and the equivalent

  +  Deputy Chief Justice of the Central Military Court

+ Chief justices of military courts of military zones and the like

   + Deputy chief justices of military courts of military zones and the like

   + Chief justices of regional military courts

  +  Deputy chief justices of regional military courts

- The chief justices of the superior people's courts have the power to dismiss positions in the superior people's courts, except judges and deputy chief judges.

- Presidents of People's Courts of provinces or central cities dismiss positions in People's Courts of provinces or centrally-run cities, People's Courts of rural districts, urban districts, towns or provincial cities  and the equivalent, except judges and deputy chief justices;

-  The President of the Central Military Court has the duties and powers to dismiss positions in the military courts, except judges, presidents and deputy chief judges;

[4] Other provisions on disciplinary action

The law on cadres and civil servants stipulates the consequences of the dismissal discipline as follows:

- "In case of disciplinary action in the form of demotion, civil servants do not raise their rank, planning, training or appointment within 24 months from the effective date of the disciplinary decision".

- "Cadres and civil servants who are disciplined for dismissal due to corruption are not appointed to leadership or management posts."

In addition, the 2012 Labor Law also provides for the form of dismissal discipline, as follows:

- "If the employee is disciplined in the form of demotion, after 03 years, if he continues to violate the labor discipline, he/she will not be considered a recidivist"

- "The form of disciplined dismissal shall be applied by the employer in cases where the employee is disciplined for prolonging the time limit for wage increase and recidivism before the time of disciplining or being disciplined.  disciplinary dismissal and recidivism. "

[5] Handling responsibilities of the judicial title holders in People's Courts

In addition, the person holding a judicial position in the People's Court commits an offense but not seriously enough to be disciplined may bear the following discipline:

- "To review before agencies and units;

- Temporarily stop performing assigned tasks;

- Arranging other jobs;

- Not considering the request for reappointment of Judges;

- Not considering a request to reappoint a Judge; "

Above is FDVN Law Firm's opinion for your request of a consultant based on studying the relevant legal provisions. Hopefully, FDVN's advice would be helpful to you.

Legal expert: Hoang Tran Ngoc Anh

FDVN Law Firm

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