Abstract: This article emphasizes the importance of codifying evidence confrontation in civil procedure as a means to enhance transparency, fairness, and adjudicative efficiency. Evidence confrontation is a crucial procedural mechanism to examine and verify the accuracy and admissibility of evidence. However, the 2015 Civil Procedure Code of Vietnam lacks explicit provisions governing this process, resulting in practical inconsistencies in the assessment of evidence. Drawing on the legal experience of the United Kingdom, the authors propose the incorporation of clear rules on evidence confrontation into Vietnamese civil procedural law, along with an effective enforcement mechanism. Such reform aims to improve the quality of adjudication and better safeguard the legitimate rights and interests of the parties involved.
Keywords: Evidence confrontation, Codification, Civil procedure, Legal approach.
1. Introduction
The Civil Procedure Law grants litigants the right to choose a course of action that is beneficial to them, such as presenting evidence to substantiate their own claims or to oppose the claims of others, or a course of action that is unfavorable to them; if they do not provide evidence to substantiate their claims, they must bear the corresponding consequences arising from the course of action that they themselves determine and select[1]. However, the current Civil Procedure Law of Viet Nam is facing many challenges in ensuring the lawful rights and interests of the parties participating in litigation. One of the issues that can be observed is the absence of specific and clear provisions on confrontation—an important process aimed at verifying the objectivity, relevance, and legality of evidence. The 2015 Civil Procedure Code (abbreviated as CoPC) has not clearly provided for confrontation as a specific process in civil proceedings, leading to limitations in the adjudication process, particularly when the parties need to debate, compare, and evaluate evidence. This not only reduces the effectiveness of dispute resolution but also affects the transparency and fairness of adjudicative activities.
In Viet Nam, several studies have addressed adversarial procedure and the right to prove, but the focused clarification of the concept, role, and procedure of “confrontation” as an independent procedural activity remains very limited. Nguyen Thi Thuy Hang (2023) and Nguyen Thi Thu Ha (2022) analyzed the assurance of the litigants’ right to prove and to provide evidence, but have not concretized the confrontation procedure. Tran Anh Tuan (2017) and Nguyen Thi Hoai Phuong (2016) referred to adversarial procedure as a principle, yet without specialized analysis of “confrontation.”
Meanwhile, in England, jurists such as John Henry Wigmore, Frances Wellman, and Wendie E. Schneider have devoted many works to analyzing cross-examination and the procedures ensuring honesty and transparency in adjudication. John Henry Wigmore assessed cross-examination as the greatest instrument for the discovery of truth; Frances Wellman described the art of questioning and counter-examining witnesses; Wendie E. Schneider focused on the mechanism of truth-finding in the Victorian-era English courts.
Thus, no study in Viet Nam has yet systematically connected and compared confrontation in Vietnamese civil procedure with the English system in the way this article does. The question arises: can Viet Nam codify confrontation as an independent procedure in civil proceedings as in England? On this basis, this article establishes its novelty and contribution in three aspects:
(i) constructing the concept of “confrontation” in civil procedure;
(ii) clarifying the role of confrontation as an independent process in civil proceedings; and
(iii) proposing the formulation of specific procedures and norms to codify confrontation in the Vietnamese Civil Procedure Code, with reference to the English legal model.
In this context, the analysis of the concept and the current legal provisions relating to confrontation in civil procedure is extremely necessary. Such analysis not only helps to clarify the concept of confrontation but also helps identify shortcomings in the existing regulations, thereby recommending solutions for improvement. In particular, the proposal to incorporate provisions on confrontation into the Vietnamese Civil Procedure Code, similar to other procedural processes, will strengthen the legal basis and enhance the effectiveness of adjudicating civil cases.
Moreover, researching and comparing the English legal experience on confrontation will provide a truly valuable reference. The English legal system is renowned for ensuring the right to a fair debate through clear and detailed procedural rules. Therefore, learning from the English experience will help Viet Nam formulate appropriate legal provisions and improve the quality of adjudication.
2. The Concept of Confrontation in Civil Procedure
According to Article 24 of the 2015 Civil Procedure Code: 1. The Court has the responsibility to ensure that litigants and their lawful representatives exercise the right to adversarial debate in first-instance, appellate, cassation, and reopening trials in accordance with this Code.
2. Litigants and their lawful representatives have the right to collect and submit documents and evidence from the time the Court accepts the civil case and have the obligation to notify each other of the documents and evidence that have been submitted; to present, respond, and express opinions and arguments on the evaluation of evidence and the application of law in order to protect their claims, rights, and lawful interests or to refute the claims of others in accordance with this Code.
3. During the trial, all documents and evidence must be examined fully, objectively, comprehensively, and publicly, except in cases where non-disclosure is provided under Clause 2 Article 109 of this Code. The Court shall direct the adversarial debate, question unclear matters, and base its judgment or decision on the results of the adversarial debate. The essence of adversarial debate in civil procedure lies in the process by which the parties present and exchange evidence, legal grounds, legal arguments, and responses, debating on the basis of civil procedural law to protect their rights and interests under the supervision of the Court. Through such debate, the facts of the case are clarified, enabling the Court to perceive the objective truth of the case and base its judgment on the results of the adversarial process[2]. In addition, adversarial debate creates equality between the parties, and fairness will be best ensured when the requirements of adversarial procedure are fully implemented[3]. From the perspective of evidence, this provision reflects the principle of ensuring adversarial debate in adjudication, within which confrontation plays a core role.
Before formulating a definition of confrontation, it is necessary to clearly understand each component of this term. According to the Vietnamese Dictionary, “doi” means to oppose or counter[4], implying opposition or rebuttal between two sides. Meanwhile, “chung” refers to something relied upon to guarantee that an event is true[5], demonstrated through proof based on specific evidence or facts. Thus, in its ordinary Vietnamese meaning, “confrontation” can be understood as the process in which the parties oppose each other in presenting and comparing evidence to clarify the truth of a matter. Clarifying the nature of these components provides the foundation for developing and analyzing more deeply the concept, role, and significance of confrontation in civil procedure.
Furthermore, evidence is defined by the Civil Procedure Code as follows: Evidence in a civil matter is anything that is real and submitted or presented to the Court by litigants and other agencies, organizations, or individuals during the proceedings, or collected by the Court in accordance with the order and procedures prescribed by the Code, and used by the Court as a basis to determine the objective facts of the case as well as to determine whether the claims or objections of the litigants are well-grounded and lawful[6].
According to the Vietnamese Dictionary, "confrontation" also means confronting a witness[7].
In civil procedure (abbreviated as CP), however, the concept of “confrontation” carries a broader meaning, not limited to confronting a witness but also encompassing the process in which the parties present, compare, counter-argue, and evaluate evidence at the hearing. This process aims to persuade the Judge or the Trial Panel (collectively referred to as the Panel) regarding the objectivity, relevance, and legality of the evidence presented.
Confrontation is a central stage in civil procedure, in which the parties cross-check and examine each other’s evidence, usually conducted under the direction of the Judge or the Panel. The goal of this process is to clarify the authenticity, reliability, and legal value of the evidence, thereby providing a solid basis for the Judge or the Panel to render an accurate judgment or decision.
During confrontation, each party not only bears the responsibility to present its own evidence but also has the right to question, counter, and refute the evidence of the opposing party. This is an indispensable part of civil procedure, ensuring objectivity, fairness, and transparency, while enabling the Judge or the Panel to gain a comprehensive and objective view before issuing the final judgment or decision.
From the above analysis, “confrontation” is defined as follows: Confrontation is the process in which the litigants present, question, and debate to evaluate each other’s evidence at a trial or hearing in order to ascertain the objectivity, relevance, and legality of the evidence, thereby assisting the Judge or the Panel in rendering an objective and accurate judgment or decision.
Through this definition, confrontation is understood as the process of comparing, examining, and verifying the accuracy and legality of evidence between the parties in a civil matter. This is not only a process for the parties to exercise their procedural rights but also an important mechanism to ensure fairness and transparency in the resolution of civil cases. The confrontation process acts as a bridge, enabling the parties to present their opinions and test evidence objectively, thereby supporting the court in issuing a precise and fair decision.
From the perspective of legal science, confrontation is a process in which the litigating parties carry out the following activities:
First, presenting, questioning, and comparing evidence. The parties provide the evidence they have collected and at the same time compare it with the evidence presented by the opposing side. This ensures that the evidence is examined comprehensively from both sides, preventing one party from abusing evidence to gain an unfair advantage.
Second,presenting counter-arguments. During confrontation, the parties may put forward opinions and arguments to refute or clarify the authenticity, relevance, or legality of the evidence. This process not only promotes transparency but also facilitates the determination of the objective truth of the case.
3. Current Status of Vietnamese Legal Provisions on Confrontation
According to the report of the Supreme People’s Court, in the past year, the courts at all levels accepted 498,632 cases; 436,372 cases were resolved and adjudicated[8], reaching a rate of 87.51%, which is 0.47% higher than the previous year and 2.51% higher than the target set by the Court (over 85%). Compared to 2023, the number of accepted cases increased by 29,804; the number of resolved and adjudicated cases increased by 28,302. Of these, first-instance acceptance was 474,639 cases, with 413,778 resolved and adjudicated; appellate acceptance was 23,214 cases, with 21,861 resolved and adjudicated; cassation and reopening acceptance was 779 cases, with 733 resolved and adjudicated. The rate of judgments and decisions annulled was 0.6% (of which subjective reasons accounted for 0.32%); amended was 1.41% (of which subjective reasons accounted for 0.38%), satisfying the requirements set by the National Assembly Resolution and the Court (not exceeding 1.5%)[9].
In that context, research on the current provisions of Vietnamese law on the right of confrontation is necessary. Confrontation is one of the core elements of adversarial proceedings in civil procedure. Regarding the provisions on the content and method of adversarial debate at trial[10], this is a new regulation introduced in the Code of Civil Procedure (BLTTDS), concretizing the provision of the 2013 Constitution: “The principle of adversarial proceedings in trial shall be guaranteed” (Clause 5 Article 103), and the principle of guaranteeing adversarial proceedings in trial as stipulated in Article 24 of the Code of Civil Procedure, reflecting a selective reception of the reasonable elements of the adversarial procedural model, suitable to the specific conditions of Vietnam, to ensure democracy, equality, publicity, and transparency[11]. Through these provisions, the element of confrontation in civil procedure is also manifested.
First, presentation of evidence[12].
The steps of presenting evidence follow this sequence:
(i) First, the plaintiff presents evidence to prove the legality and reasonableness of the claim;
(ii) Next, the defendant presents evidence to prove the legality and reasonableness of the counterclaim;
(iii) Finally, the person with related rights and obligations presents evidence to prove the legality and reasonableness of his or her independent claim.
In cases where a litigant has a lawful representative or defender of lawful rights and interests, such person shall present first and the litigant shall supplement if the presentation is not complete.
The purpose of presenting evidence is to prove that the litigant’s request is well-founded and lawful.
In addition, at trial the litigants may only supplement documents and evidence as provided in Clause 4 Article 96 of the Code of Civil Procedure:
(i) Where the Court has requested submission but the litigant could not submit due to a legitimate reason, the litigant must prove the reason for late submission of such documents or evidence;
(ii) Where the Court has not requested submission or where the litigant could not know of the documents or evidence during the first-instance proceedings.
Second, questioning and answering on evidence.
This step is divided into two groups: the questioners and those questioned regarding the evidence.
Firstly,Persons questioning the evidence[13].
The order of questioning is as follows:
(i) Plaintiff, defendant, and person with related rights and obligations. Where a litigant has a defender of lawful rights and interests, that defender shall ask supplementary questions after the litigant;
(ii) Other participants in the proceedings;
(iii) The presiding judge of the trial and the People’s Jurors;
(iv) The procurator participating in the trial.
Secondly, Persons questioned on the evidence as stipulated in the Code of Civil Procedure:
(i) Questioning the plaintiff[14], followed by questioning the defendant[15] and the person with related rights and obligations[16]. The regulation requires questioning each litigant separately to ensure that the collection of information and evidence from each litigant is conducted independently. This prevents mutual influence in presenting evidence and ensures the truthfulness and objectivity of each statement. The focus on questioning only unclear evidence or evidence with contradictions among the litigants aims to clarify the authenticity and logic of the evidence. This also helps the judge or the trial panel identify weaknesses or shortcomings in the litigant’s evidence system, thereby supporting a comprehensive assessment of the case. The regulation allowing the litigant to answer personally or to let the defender of lawful rights and interests answer before the litigant supplements further opinions demonstrates flexibility in providing evidence, especially when the evidence involves technical or complex legal issues.
(ii) Questioning witnesses[17].
Before collecting evidence from a witness, the presiding judge must clarify the relationship between the witness and the litigants in order to assess the objectivity of the testimony. Questioning each witness separately, especially when there are multiple witnesses, ensures that statements are given independently, avoiding influence or agreement among witnesses, thereby enhancing the accuracy and truthfulness of information relating to the evidence. The presiding judge requires the witness to clearly present the facts of the case known to them to ensure complete collection of evidence. After the presentation, only additional questions on unclear, incomplete, or contradictory points may be asked. This optimizes the process of clarifying evidence, particularly when inconsistencies arise among testimonies or between witness testimonies and those of the litigants or defenders of rights. The requirement that witnesses remain in the courtroom after their presentation allows the trial panel to flexibly ask supplementary questions if necessary. This provision ensures that every aspect of the evidence is clarified, avoiding omissions of important information related to the case. In sensitive situations, the trial panel may decide not to disclose personal information or allow participants to see the witness. This protects the safety of the witness and their relatives and encourages full and truthful testimony without pressure or threat. After the witness’s presentation, litigants and their defenders have the right to pose questions, but only with the consent of the presiding judge. This provides an opportunity for the parties to clarify matters relating to the evidence they deem necessary, while ensuring that questioning remains controlled and does not place undue pressure on the witness.
(v) Questioning expert witnesses[18].
The presiding judge requires the expert witness to present the expert conclusion, including the main content and the grounds leading to that conclusion. This provision clarifies the scientific, technical, or professional basis used in the expert examination, thereby providing important evidence to clarify facts in the case. At the same time, the expert’s explanation of the conclusion ensures that the participants in the proceedings understand the content and evidentiary value. The procurator, litigants, and other participants have the right to comment or ask questions on unclear or contradictory points in the expert conclusion, including contradictions between the expert conclusion and other evidence in the case. Questioning must be approved by the presiding judge to ensure that the clarification of evidence proceeds in accordance with regulations and does not place unnecessary pressure on the expert. In the absence of the expert at trial, the presiding judge shall announce the expert conclusion. This provision ensures that expert evidence, even without the expert’s direct presence, is still considered and used in resolving the case. When the litigant or defender of lawful rights disagrees with the announced expert conclusion, they have the right to request a supplementary or repeat examination. If the trial panel deems such supplementary or repeat examination necessary to clarify the evidence and resolve the case, the trial may be suspended in accordance with the law. This ensures that all evidence is thoroughly examined, avoiding errors or incomplete conclusions that may affect the fairness and objectivity of the judgment.
Third, debate on evidence[19].
The regulation sets out the order of debate to ensure logic and fairness in the proceedings. The defender of lawful rights and interests of the plaintiff shall speak first, presenting arguments based on evidence to support the claim. The defendant and their defender then have the right to rebut, clarify, or refute unreasonable points in the plaintiff’s evidence. Finally, the parties have the right to directly respond to each other, enabling clarification of contradictions or doubts in the evidence.
Litigants have the right to respond directly under the direction of the presiding judge to ensure that the debate focuses on important issues related to the evidence. When necessary, the trial panel may require the parties to further debate specific issues to strengthen the basis for resolving the case. This highlights the central role of evidence in determining the truth and resolving conflicts between the parties.
When the plaintiff, defendant, or person with related rights and obligations has no defender of lawful rights, they must participate in the debate themselves. This ensures the right to present and defend their own viewpoints in clarifying the evidentiary value, even without professional legal assistance.
If one or more participants are absent, the presiding judge shall announce their statements. This ensures that relevant information and evidence are still included in the debate, enabling the present parties to rebut and respond fully. This is an important measure to avoid omission of any evidentiary factor, even when the provider of the information is not directly present at trial.
Through the above presentation and analysis, it can be seen that the current law contains relatively strict and transparent provisions on the process of confrontation in presenting, questioning, and debating evidence. Confrontation not only ensures transparency and fairness in the proceedings but also serves as the basis for the judge or the trial panel to issue judgments and decisions accurately based on evaluated evidence. At the same time, it reflects the nature of adversarial proceedings in civil procedure. Proper implementation of confrontation contributes to improving the quality and effectiveness of civil adjudication, protecting the lawful rights and interests of the parties. However, the Code of Civil Procedure has not yet established confrontation as an independent process or a distinct procedural activity allowing the parties to directly examine, compare, and debate evidence. This leads to certain shortcomings in the legal provisions:
First, there is a lack of mechanisms to protect litigants’ rights during the confrontation process. The current Code has not established a specific legal framework to guarantee the parties’ rights in confrontation, making the activities of debating and verifying evidence vague and impracticable. As a result, parties face difficulties in protecting their lawful rights and interests. In many cases, one party is not given the opportunity to examine or confront evidence provided by the other party or collected with the support of the Court[20]. This creates inequality between the parties, especially those who are weaker in self-protection or lack professional legal assistance. Debate at trial often focuses on presenting opinions rather than thoroughly verifying the authenticity, relevance, and legality of the evidence. This may negatively affect the outcome of adjudication.
Second, practical application remains inconsistent. Allowing parties to debate or verify evidence at trial often depends on the interpretation and application of the law by each trial panel. For example, there is no clear delineation of a stage exclusively for confrontation in civil procedure. This leads to inconsistency in adjudication and reduces the transparency of the judicial system.
In addition, the Court finds it difficult to comprehensively assess evidence without a clear confrontation process. When confrontation is not specific and explicit, the Court’s evaluation of evidence may be superficial, leading to a lack of objectivity. This poses a risk of inaccurate or unconvincing judgments, making judgments and decisions more susceptible to appeal or complaint, prolonging the proceedings and undermining public confidence in the judicial system.
A typical practical example illustrates these shortcomings. In the petition for annulment of an illegal marriage dated 28 June 2017 and the testimony during the proceedings of Mrs. Nguyen Thi S and her authorized representative Ms. Luong Thi T, it was stated:
Mrs. S and Mr. Pham Ba H lived together, held a wedding ceremony according to local customs, and registered their marriage at the People’s Committee of commune (now ward) P, U city, Quang Ninh province on 23 November 1980. In April 1981, the couple went to Hong Kong and later immigrated to Canada. In 2008, they returned to Vietnam and lived at house No. 24, Group 14, Area 03, T ward, U city, Quang Ninh province (household registration book No. 500296496 dated 03 November 2014, household head: Pham Ba H; relationship with household head: wife Nguyen Thi S). During their cohabitation, they had three common children: Mr. Pham Hong K (born 1981), Ms. Pham Thi Thu H1 (born 1984), and Ms. Pham Thi Thu H2 (born 1991). All of the children are currently residing in Canada.
Since 2011, when Mr. H had an extramarital relationship with Ms. Nguyen Thi L, the couple often had conflicts and discord. Mrs. S was beaten and driven out of the house by Mr. H, so she went to Canada to visit her children for relief. Several months later, when Mrs. S returned, Mr. H had brought Ms. L and their common child into the house of Mrs. S and Mr. H and did not allow Mrs. S to enter, despite her request for intervention by the local authorities.
In the First-Instance Civil Matter Resolution Decision No. 01/2018/Civil judgment - first instance dated 02 February 2018, the People’s Court of Quang Ninh province decided:
To annul the illegal marriage between Mr. Pham Ba H and Ms. Nguyen Thi L under Marriage Certificate No. 09 registered on 17 April 2017 by the People’s Committee of M city, Quang Ninh province. Mr. H and Ms. L were ordered to terminate their marital relationship.
In the Appellate Civil Matter Resolution Decision No. 12/2019/Civil judgment - appellate level dated 18 September 2019, the High People’s Court in Hanoi decided:
To accept the appeal of Ms. Nguyen Thi L and amend the First-Instance Civil Matter Resolution Decision No. 01/2018/Civil decision - first instance dated 02 February 2018 of the People’s Court of Quang Ninh province by not accepting the request of Mrs. Nguyen Thi S to “annul the illegal marriage.” The marital relationship between Mr. Pham Ba H and Ms. Nguyen Thi L was recognized as lawful according to Marriage Certificate No. 09 registered on 17 April 2017 by the People’s Committee of M city, Quang Ninh province.
At the cassation hearing, the Council of Judges of the Supreme People’s Court decided:
To annul the Appellate Civil Matter Resolution Decision No. 12/2019/Civil judgment - appellate level dated 18 September 2019 of the High People’s Court in Hanoi.
To uphold the First-Instance Civil Matter Resolution Decision No. 01/2018/Civil judgment - first instance dated 02 February 2018 of the People’s Court of Quang Ninh province[21].
Through this practical case, it is evident that the courts have not been consistent and have not implemented confrontation in the best manner, particularly the appellate court, resulting in serious errors that required annulment of the decision.n những sai sót nghiêm trọng dẫn đến phải hủy Quyết định.
These shortcomings emphasize the necessity of codifying confrontation in the Code of Civil Procedure. This would not only enable the parties to effectively protect their rights but also enhance the transparency, fairness, and effectiveness of Vietnam’s civil procedure system.
4. Legal Experience from the United Kingdom on Confrontation in Civil Procedure
In the United Kingdom, the Civil Procedure Rules (CPR) constitute the legal foundation governing civil litigation processes, including numerous detailed provisions on confrontation. Some representative provisions are as follows:
First, on the statement of truth.
Firsty, documents required to be verified by a statement of truth include: statements of case, witness statements, acknowledgements of service under the Part 8 procedure, certificates of service of documents, applications for committal for contempt of court under Part 81, and other documents as prescribed by law or practice directions. When a statement of case is amended, the amendments must be verified by a statement of truth unless the court orders otherwise. A statement of truth is a declaration by the person making the document that the information and facts set out therein are true. Where a litigant is represented by a legal representative, the statement of truth may be signed by that representative, affirming their belief that the facts stated in the document are true. The statement of truth must be signed by the party, their legal representative, or their litigation representative; in the case of a witness statement, the witness must personally sign it. Where the statement of truth is contained in a separate document, that document must be clearly identified. In certain circumstances, a statement of truth may be made by a person who is not a party to the proceedings or jointly by both parties if permitted by a practice direction. For a person who is unable to read or sign the document for objective reasons, the document must be certified by an authorized person confirming that the content has been read to and clearly explained to the maker, that the maker understands and agrees to it, is aware of the legal consequences of making a false statement, and has signed or marked it in the presence of the authorized person[22].
Secondly,where a statement of case is not verified by a statement of truth, the legal consequences include: the statement of case remains valid unless struck out by the court, but the party will not be permitted to rely on it as evidence of the matters stated. The court has the power to strike out a statement of case not verified by a statement of truth. Any party may apply to the court for such an order[23].
Thỉdly, Where a witness statement is not verified by a statement of truth, the court may decide not to admit the statement as evidence[24]. The court may order a person to verify a document in accordance with Rule 22.1 if the person has failed to do so. Any party may apply to the court for such an order. In addition, under Rule 32.14, if a person verifies a statement of case containing false information without an honest belief in its truth, that person may be liable for contempt of court[25].
Second, disclosure of documents.
A party discloses a document by stating that the document exists or has existed[26]. A document is anything in which information of any description is recorded; and a “copy”, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly[27]. Disclosure includes: (a) documents on which the party relies; (b) documents which adversely affect the party’s own case, adversely affect another party’s case, or support another party’s case; and (c) documents which the party is required to disclose under any relevant practice direction[28].
Rule 31.22 governs the use of disclosed documents as follows: (i) A party receiving disclosed documents may use them only for the purpose of the proceedings in which they were disclosed, except where: (a) the document has been read by the court or referred to at a public hearing; (b) the court gives permission; or (c) the disclosing party and the document’s owner consent; (ii) The court may make an order restricting or prohibiting the use of a disclosed document even if it has been read or referred to at a public hearing; (iii) An application for such an order may be made by: (a) a party to the proceedings; or (b) any person who owns the document[29].
Third, sanctions for false statements.
Proceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth[30]. As to contempt of court, a penal notice is a clear warning endorsed on the front of a court order, requested by a party, alerting that if the person to whom the order is directed (and, in the case of a corporation, its directors or officers) fails to comply, that person (or director or officer) may be found in contempt of court and punished by fine, imprisonment, sequestration of assets, or other penalties as provided by law[31].
Fourth, cross-examination, one of the most important activities in the confrontation process of the English civil procedure system. According to John Henry Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth”[32]. The acceptance of cross-examination is founded on several basic beliefs. (i) First is the belief that “truth” is rarely simple, that there is often more than one version, or at least more than one perspective. The Greek fabulist Aesop, writing in the sixth century BC, expressed this insight profoundly: “Every truth has two sides; it is well to look at both, before we commit ourselves to either.” Therefore, we believe that the trier of fact must be presented with both sides, and the persons best suited to present them are the advocates for each party. A crucial part of this process is allowing both sides to question the witnesses—the most important source of information. (ii) Second, we recognize that human beings are fallible. Anyone can make mistakes. And many are willing to fabricate testimony even under formal oath in court. Because such errors (and lies) may benefit one side in a dispute, the opposing advocate is the person with the strongest motivation and deepest knowledge to expose them[33].
Initially criticized as relying more on verbal games than a serious concern for truth, cross-examination gradually displaced prosecution for perjury to become the primary method of ensuring witness honesty. Its ascendancy was largely due to lawyers’ success in redefining it as a respectable legal technique characterized by courteous restraint and adherence to professional standards[34]. While direct examination may be the hardest—and most important—part of any trial, cross-examination is often the most dramatic. Unfortunately, most lawyers cross-examine witnesses poorly, forgetting that the purpose of cross-examination is not merely to attack the opponent but also to strengthen one’s own case[35].
Cross-examination does not always fulfill its dramatic promise. Nevertheless, most advocates agree that this stage of the trial holds the greatest potential for high courtroom drama[36]. If the testimony is false, the aim of cross-examination is to destroy both the witness and the testimony. If the testimony is partly true and partly false, the goal is to destroy only the false part. Skilled trial lawyers know they must accept what they believe to be true, even if it harms their client’s case. If the falsehood lies merely in exaggeration or misleading impression, the function of cross-examination is to cut the story down to its proper size and show its correct relation to other facts[37].
Practical evidence of cross-examination in the United Kingdom can be seen in the recent Supreme Court decision in Tui UK Ltd v Griffiths [2023] UKSC 48, which considered whether a party is obliged to challenge a witness’s or expert’s testimony during cross-examination if it wishes to undermine or exclude that testimony. The Supreme Court reaffirmed the principle in Browne v Dunn, whereby a party must “put” its case on a specific point to the witness who has given contradictory evidence, so that the witness has an opportunity to respond. A party that fails to do so will be deemed to have accepted the witness’s testimony as true and will lose the right to dispute it[38].
The advantages of the confrontation mechanism in the English legal system are reflected in strict procedural principles ensuring fairness and transparency. A prominent advantage is the requirement that parties directly challenge witness testimony during cross-examination in court. This ensures that all inconsistencies in testimony are addressed openly, preventing parties from unexpectedly introducing new evidence that witnesses have no opportunity to rebut. Moreover, confrontation enhances the quality of evidence by allowing cross-verification of the authenticity and reliability of testimony, thereby assisting the court in reaching more accurate and objective decisions. Furthermore, requiring parties to fully present arguments and counterarguments during the hearing is an effective way to prevent procedural abuse where a party might deliberately withhold information to gain an unfair advantage later
However, alongside these notable advantages, the confrontation mechanism in the English legal system also presents certain shortcomings and challenges. First, effective cross-examination requires litigants or lawyers to possess advanced professional skills, particularly the ability to pose sharp, flexible questions and respond to situations immediately in court. Second, the process of confrontation can impose significant psychological pressure on witnesses, especially those unaccustomed to the solemn and tense courtroom atmosphere, making it difficult for them to present fully or accurately what they know.
The lessons for Vietnam from the practical application of the confrontation mechanism in the English legal system are highly valuable for civil procedure law reform. First, Vietnam needs to codify confrontation in civil procedure law by clearly defining the rights and obligations of the parties regarding confrontation, thereby ensuring fairness, transparency, and efficiency in adjudication. In addition, training and enhancing the skills of lawyers is an urgent requirement to enable them to effectively employ confrontation in litigation practice. Finally, Vietnam should design a reasonable confrontation procedure to ensure the effectiveness of the judicial system under practical conditions.
5. Conclusion and Recommendations for the Civil Procedure Law of Vietnam
According to Professor Witold Wolodkiewicz and Mario Zablocka of the University of Warsaw – Poland, in order to protect the victim, it is necessary to grant them procedural rights[39]. Sharing this viewpoint, Professor Savigny – an eminent jurist of German legal scholarship – also concluded that merely having a code of law does not guarantee the rights and interests of the people; what truly matters is the substantive content of that code[40]. Analyzing these two perspectives shows that, to ensure the procedural rights of litigants, the Civil Procedure Law must first clearly, reasonably, and transparently stipulate the procedural rights of parties when they participate in proceedings. The codification of litigants’ procedural rights serves as a crucial instrument and means for them to seek justice, while also creating a solid legal framework that ensures their ability to best protect their lawful rights and interests[41]. Therefore, confrontation (doi chung) is one of the core elements of adversarial procedure, embodying civil procedural rights that guarantee transparency, fairness, and effectiveness in civil litigation.
Experience from the law of England, specifically the Civil Procedure Rules 1998 with detailed provisions on the statement of truth, disclosure of evidence, and responsibility for evidence disclosure, demonstrates that clear regulation and effective implementation of confrontation can create a fair and transparent litigation system. This is the approach that Vietnam needs to learn from and adapt to its own legal context and practical circumstances. To achieve this objective, legal reform is an urgent requirement. Providing clearer provisions on confrontation in the Civil Procedure Code (BLTTDS), establishing effective enforcement mechanisms, and raising awareness among participants in civil proceedings will be important steps toward improving the legal system. Such reform will not only contribute to protecting the rights and interests of the parties but also help the Vietnamese judiciary integrate internationally.
Based on an analysis of the current provisions of Vietnam’s civil procedure law and the experience of English law on confrontation in civil proceedings, the authors propose the following solutions:
First, supplement provisions on confrontation in civil proceedings. Confrontation not only encompasses the fundamental procedural rights of the parties but also constitutes an independent process to ensure transparency and fairness. Vietnam needs to introduce a specific definition of confrontation in the Civil Procedure Code. In particular, the Civil Procedure Code should add a provision on confrontation as follows:
“Confrontation is the process by which the litigating parties present, question, and debate in order to evaluate each other’s evidence at a court hearing or meeting, with the aim of determining the objectivity, relevance, and legality of the evidence, thereby assisting the Judge and the Adjudicating Panel in rendering an objective and accurate judgment or decision.”
Second, strengthen the responsibility for providing evidence. The litigating parties must provide complete and truthful evidence and bear responsibility for their evidence. The Civil Procedure Law should emphasize the obligation to provide truthful evidence and the right to challenge evidence during the confrontation process. Specifically, it is proposed to supplement Clause 2 of Article 24 of the Civil Procedure Code 2015 as follows:
“2.… All evidence provided must be accompanied by a commitment of truthfulness. Any person who violates this obligation may be subject to administrative or criminal sanctions depending on the severity of the act of providing false evidence that affects the resolution of the case, prolongs the proceedings, and causes damage to other litigants.”
Third, provide specific regulations on the procedure for confrontation at trial. The Civil Procedure Code should supplement Clause 4 of Article 247 of the Civil Procedure Code with a provision on the confrontation procedure as follows:“4. Confrontation at trial consists of the steps of presenting evidence, questioning evidence, and debating evidence.”
This procedure should be further detailed in the law, from the identification of the content of confrontation, methods of presentation and questioning, to the responsibilities of the parties in debating evidence, thereby ensuring consistency in the application of the law. In particular, additional provisions should be introduced to separately regulate the presentation of evidence, questioning of evidence, and debate of evidence in the Civil Procedure Code.
Fourth, enhance the capacity of judges. Confrontation requires flexible and fair management as well as a firm grasp of adversarial questioning techniques, whereas many judges have not yet been thoroughly trained in adversarial procedures. Moreover, the uneven availability of legal resources and lawyers, especially in localities, creates the risk of imbalance between parties during confrontation. Therefore, it is necessary to simultaneously provide professional training, develop guidance manuals, and raise social awareness about confrontation as an indispensable part of fair adjudication.
These proposals will contribute to improving the legal provisions on confrontation in civil proceedings, thereby strengthening the adversarial nature of civil case resolution and enhancing the effectiveness of Vietnam’s civil procedure system. This will not only help protect the lawful rights and interests of the litigating parties but also promote transparency in the adjudication of civil cases./.
1. Hiến pháp năm 2013.
2.
Civil Procedure Code of Vietnam 2015.
3. Civil Procedure Rules 1998.
4.
Law on Organization of the People’s Courts 2024.
5. 2024 Annual Summary Report and Key Tasks and Directions for 2025 of the People’s Courts.
6. F. Dennis Saylor IV and Daniel I. Small, The why of cross-examination, Massachusetts Lawyers Weekly, 2017.
7. Frances L. Wellman, The Art of Cross-Examination 216 (4th ed.1962).
8. Gerald A. Klein, The Art Of Cross-Examination, https://www.kleinandwilson.com/publications/the-art-of-cross-examination/?tum_source=chatgpt.com.
9. Hoang Phe (2016),
Vietnamese Dictionary, Hong Duc Publisher.
10.John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law, vol. 2 (Boston: Little, Brown, 1904), 1697 (Sec. 1367).
11.Jim M. Perdue, Sr, The Five Question Rule-Cross Exam Simplified, Trial Techniques
12.J. Schroeder, Savigny, Kleinheyer – Schroeder (Hrsg.) (1996), Deutsche Juristen uas neun Jahrhunderten, 4.Aufl.
13.Le Net (1999),
Roman Law, translated from the Roman Law textbook of the University of Warsaw – Poland, compiled by Professor Witold Wolodkiewicz & Mario Zablocka, Library of Ho Chi Minh City University of Law.
14.Matteo Angelini (Wilmer Cutler Pickering Hale and Dorr LLP) (2024), Tui v Griffiths: The Importance of Putting Your Case to Witnesses and Experts in Cross-Examination, truy cập ngày 02/6/2025.
15.Nguyễn Thị Thu Hà (2022), Cung cấp, thu thập chứng cứ của đương sự trong tố tụng dân sự Việt Nam, NXB. Chính trị quốc gia sự thật, Hà Nội.
16.Nguyen Thi Thuy Hang (2023), Ensuring Civil Procedural Rights of Litigants, People’s Public Security Publisher.
17. Nguyen Thi Hoai Phuong (2016), Comments on New Points in the Civil Procedure Code 2015, Hong Duc Publisher – Vietnam Lawyers Association, p.104.
18.
Cassation Decision No. 04/2021/HNGĐ-GĐT dated July 07, 2021 of the Council of Judges of the Supreme People’s Court regarding the request to annul an illegal marriage. https://anle.toaan.gov.vn/webcenter/portal/anle/chitietnguonanle?dDocName=TAND199021, truy cập ngày 02/6/2025.
19.Schneider, Wendie Ellen. Engines of Truth: Producing Veracity in the Victorian Courtroom. Yale University Press, 2015.
20.Phan Thi Thu Ha (2023), in Scientific Commentary on the Civil Procedure Code of the Socialist Republic of Vietnam (edited by Tran Anh Tuan), Judiciary Publisher.
21.Institute of Public Policy and Law (2014), Scientific Commentary on the Constitution of the Socialist Republic of Vietnam 2013, Labor and Social Affairs Publisher, Hanoi.
*
PhD Candidate, Master’s Degree, University of Economics and Law, Vietnam National University Ho Chi Minh City; Senior Lecturer, Faculty of Law, Can Tho University. Approved for publication. 16/6/2025.mail: tkqui@ctu.edu.vn
** Associate Professor, Doctor of Philosophy (PhD), Head of the Faculty of Law, University of Economics and Law, Vietnam National University Ho Chi Minh City.
[1] NGUYEN THI HOAI PHUONG, Commentary on the New Points in the 2015 Civil Procedure Code, Hong Duc Publisher – Vietnam Lawyers Association, p.104 (2016).
[2] NGUYEN THI THU HA, Provision and Collection of Evidence by Litigants in Vietnamese Civil Procedure, National Political Publishing House Truth, Hanoi, pp. 56–57 (2022).
[3] Institute of Public Policy and Development,Scientific Commentary on the 2013 Constitution of the Socialist Republic of Vietnam, Labor and Social Affairs Publishing House, Hanoi, p. 471 (2014).
[4] Hoang Phe, Vietnamese Dictionary, Hong Duc Publisher, p. 426 (2016).
[5] Hoang Phe, Previously Cited Work No. 4, p. 242.
[6] Article 93 of the Civil Procedure Code 2015.
[7]
HOANG PHE, Previously Cited Work No. 4, p. 426.
[8] The People’s Courts accepted 227,793 civil cases, of which 176,634 cases were resolved and adjudicated, reaching a settlement rate of 77.54%.
Specifically, 208,382 cases were accepted under first-instance procedures, with 158,380 cases resolved and adjudicated; 18,829 cases were accepted under appellate procedures, with 17,706 cases resolved and adjudicated; and 582 cases were accepted under cassation and reopening procedures, with 548 cases resolved and adjudicated.
The People’s Courts accepted 246,358 marriage and family cases, of which 240,263 cases were resolved and adjudicated, achieving a settlement rate of 97.53%.
In particular, 243,950 cases were accepted under first-instance procedures, with 237,928 cases resolved and adjudicated; 2,329 cases were accepted under appellate procedures, with 2,258 cases resolved and adjudicated; and 79 cases were accepted under cassation and reopening procedures, with 77 cases resolved and adjudicated.
The People’s Courts accepted 4,669 labor cases, of which 4,395 cases were resolved and adjudicated, reaching a settlement rate of 94.13%.
Specifically, 4,305 cases were accepted under first-instance procedures, with 4,037 cases resolved and adjudicated; 347 cases were accepted under appellate procedures, with 341 cases resolved and adjudicated; and 17 cases were accepted under cassation and reopening procedures, with 17 cases resolved and adjudicated.
The People’s Courts accepted 19,516 business and commercial cases, of which 14,918 cases were resolved and adjudicated, reaching a settlement rate of 76.44%.
Among these, 17,706 cases were accepted under first-instance procedures, with 13,271 cases resolved and adjudicated; 1,709 cases were accepted under appellate procedures, with 1,556 cases resolved and adjudicated; and 101 cases were accepted under cassation and reopening procedures, with 91 cases resolved and adjudicated.
[9] Report on the 2024 Work Summary and Key Directions and Tasks for the People’s Courts in 2025, p.4.
[10] Article 247 of the 2015 Civil Procedure Code of Vietnam.
[11]PHAN THI THU HA, Scientific Commentary on the Civil Procedure Code of the Socialist Republic of Vietnam (edited by Tran Anh Tuan), Judiciary Publisher, p. 582 (2023).
[12] Article 248 of the Civil Procedure Code of Vietnam (2015).
[13] Article 249 of the Civil Procedure Code of Vietnam (2015).
[14] Article 250 of the Civil Procedure Code of Vietnam (2015).
[15] Article 251 of the Civil Procedure Code of Vietnam (2015).
[16] Article 252 of the Civil Procedure Code of Vietnam (2015).
[17] Article 253 of the Civil Procedure Code of Vietnam (2015).
[18] Article 257 of the Civil Procedure Code of Vietnam (2015).
[19] Article 260 of the Civil Procedure Code of Vietnam (2015).
[20] Clause 4, Article 15 of the Law on Organization of the People’s Courts (2024).
[21]
Cassation Decision No. 04/2021/
Cassation Plenary Session dated July 7, 2021 of the Council of Judges of the Supreme People’s Court on the request to annul an illegal marriage. luật, https://anle.toaan.gov.vn/webcenter/portal/anle/chitietnguonanle?dDocName=TAND199021, access 02/6/2025.
[22] Documents to be verified by a statement of truth, 22.1 The Civil Procedure Rules 1998.
[23] Failure to verify a statement of case, 22.2 The Civil Procedure Rules 1998.
[24] Failure to verify a witness statement, 22.3 The Civil Procedure Rules 1998.
[25] Power of the court to require a document to be verified, 22.2 The Civil Procedure Rules 1998.
[26] Meaning of disclosure, 31.2 The Civil Procedure Rules 1998.
[27] Meaning of document, 31.4 The Civil Procedure Rules 1998.
[28] Standard disclosure—what documents are to be disclosed, 31.6 The Civil Procedure Rules 1998.
[29] Subsequent use of disclosed documents, 31.22 The Civil Procedure Rules 1998.
[30] False statements, 32.14 The Civil Procedure Rules 1998.
[31] Interpretation, 81.2. The Civil Procedure Rules 1998.
[32] “it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” John Henry Wigmore, A Treatise on the System of Evidence in Trials at Common Law, vol. 2 (Boston: Little, Brown, 1904), 1697 (Sec. 1367).
[33] “What underlies our acceptance of cross-examination are several basic beliefs.
First is the belief that “truth” is not that simple, that there is often more than one version, or at least more than one perspective. The Greek fabulist Aesop, writing in the sixth century BC, put it remarkably well: “Every truth has two sides, It is well to look at both, before we commit ourselves to either.” And so we believe that the finder of fact ought to be presented with both sides, and that the most effective presenters are the advocates for each side. Part of that process is allowing both sides to question the witnesses, who are the most important source of information.
Second is our recognition that human beings are not perfect. All people make mistakes. And too many of them are willing to fabricate testimony, even in a formal, sworn courtroom setting. Because those mistakes (and lies) may favor one side of a dispute, it is the advocate for the other side who has the strongest motive and understanding to bring them to light”. F. Dennis Saylor IV and Daniel I. Small, The why of cross-examination, Massachusetts Lawyers Weekly, 2017,1.
[34] “Cross-examination, initially reviled for the way in which it seemed to depend on competitive word-twisting rather than a serious concern for the truth, came to supersede perjury prosecutions as the primary means of guaranteeing witness veracity; its triumph owed much to the way in which barristers successfully redefined it as a respectable forensic technique, characterized by gentlemanly restraint and subject to professional norms”. Schneider, Wendie Ellen. Engines of Truth: Producing Veracity in the Victorian Courtroom. Yale University Press, 2 (2015)
[35] “While direct examination may be the hardest – and most important – part of any trial, cross-examination is usually the most fun. Unfortunately, most lawyers do not cross-examine witnesses well and forget that the purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case”. Gerald A. Klein, The Art Of Cross-Examination, https://www.kleinandwilson.com/publications/the-art-of-cross-examination/?utm_source=chatgpt.com.
[36] “Cross-examination may not always fulfill its dramatic promise. However, most lawyers agree that this stage of the trial presents the greatest potential for high courtroom drama”. Jim M. Perdue, Sr, The Five Question Rule-Cross Exam Simplified, Trial Techniques,1.
[37] “If the testimony is false, the purpose of cross-examination is to destroy both the witness and the testimony. If the testimony is true in part and false in part, then the purpose must be to destroy only what is false. Skilled trial lawyers know that they must accept what they believe to be true, even if it damages the client’s case. If the testimony is false only in the sense that it exaggerates or creates a wrong impression, the function of cross-examination is to whittle down the story to is proper size and show its proper relation to other facts”. Frances L. Wellman, The Art of Cross-Examination 216 (4th ed.1962), 2.
[38] Matteo Angelini (Wilmer Cutler Pickering Hale and Dorr LLP) (2024), Tui v Griffiths: The Importance of Putting Your Case to Witnesses and Experts in Cross-Examination, truy cập ngày 02/6/2025.
[39]
Le Net, Roman Law, translated from the Roman Law textbook of the University of Warsaw – Poland, compiled by Professor Witold Wolodkiewicz & Mario Zablocka, Library of Ho Chi Minh City University of Law, 1999, p.230.
[40] J. Schroeder, Savigny, Kleinheyer – Schroeder (Hrsg.), Deutsche Juristen uas neun Jahrhunderten, 4.Aufl, tr.354 (1996)
[41] NGUYEN THI THUY HANG, Ensuring the Civil Procedural Rights of Parties, People's Police Publisher, pp. 63–64 (2023).
