How civil courts operate in Mongolia

• 2018-01-08
• 1,480

The Constitution of Mongolia (1992)

Mongolia’s last Constitution was adopted in 1992. By this Constitution, Mongolia declared its intention to pursue market economy, and democratic social and political system. The Constitution makes it clear that the judiciary is independent from legislative and executive branches of the government.

The Law on Courts of Mongolia (2012)  

The Law on Courts specifies that Mongolia may have specialized courts including criminal, civil and administrative courts.

There are three /3/ instances of courts in Mongolia:

1. First instance courts:             District, Soum or Inter-soum courts
2. Appellate courts:              The Capital city court or Aimag courts
3. Supervisory court:             The Supreme Court

Judicial independence 

The Law on Courts prescribes the independence of courts and judges as the following:

• No law or administrative act will diminish or impair with the principle of judicial independence;
• Courts will have an independent budget;
• Courts have their own administration, and such administrative functions are exercised by the General Judicial Council and court secretariats;
• Vacancies and salaries of judges at any level of courts will be determined by the Parliament of Mongolia;
• No guidance or instructions will be provided by the Chief Justice in relation to cases review, and no allocation of disputes before the courts against the name of the judges;

Rule of Law

A court may be of the opinion that a particular law or an international convention to which Mongolia is a party contravenes the Constitution of Mongolia, and in this case their opinion will be submitted to the Supreme Court. If the Supreme Court considers that “the opinion and proposal have grounds” it will lodge a request to the Constitutional Court.

Citizens’ representatives

First instance courts ensure that citizens’ representatives participate in court hearings to ensure transparency, fairness, and public oversight when court hearing involves a team of judges to decide the case. Up to 3 citizens’ representatives participate in the court hearing and they are entitled to:

• Get acquainted with case file;
• Request withdrawal of judges, experts, interpreter/translator, and court secretary;
• Participate in evidence assessment;
• Question plaintiff/defendant, or their representative or advocate; and
• Issue an opinion on the case facts and the guilt of a person

Principle of Adversarial Justice  

Principe of adversarial justice is entrenched in the Law on Courts. Under this notion, the following have been specified:

• Disputing parties may pose questions to parties, their attorneys, legal representatives, or prosecutors
• Respond to questions asked
• Present evidence relevant to the case
• Parties to a dispute provide their explanations
• Defend the grounds of their claims or defense
• Reject claims or defense

Chief Justice and Heads of the Chambers

All levels of courts have a Chief Justice. The Chief Justice of the Supreme Court is appointed by the President of Mongolia for a term of 6 years. Chief Justices of the first instance courts and appellate courts are appointed for a three year term (extendable to another three years) as proposed by the General Judicial Council. The Heads of civil, criminal and administrative chambers of the Supreme Court are appointed by the President upon the submission of the Chief Justice of the Supreme Court.

Laws pertaining to powers of judges

There is a Law on the Legal Status of Lawyers (2012) which provide for general powers of judges. Powers of judges in relation to dispute review and resolution are provided in the Civil Procedures Law (2002).

Judges of the first instance and appellate courts may be appointed to exercise judicial powers in the other courts of the same instance. Such appointments are regulated by the General Judicial Council.

Chief Justices announce judges’ consultative meetings (below you will find the specifics on the judges’ consultative meeting), formalize the appointment of judges and a presiding judge for court hearings, and exercise organizational powers in regards to complaints/claims resolutions.

The Supreme Court of Mongolia

The Law on Courts provides that “No decision or activity of any court remains outside the oversight of the Supreme Court”.

The Supreme Court is established under the Constitution of Mongolia while other courts are established by the Parliament upon the proposal of the President of Mongolia.

The Supreme Court of Mongolia has civil, criminal and administrative case chambers. The Supreme Court must have a Chief Justice and no less than 24 justices.

The Supreme Court’s powers include:

• Submit its proposals with respect to law reform to the Parliament based on judicial practice and court decisions;
• Review and resolve matters submitted by the Constitutional Court and Chief Prosecutor in relation to rule of law and human rights and freedom; and
• Nominate judges to the Constitutional Court, recall or release them from the same office.

The Chief Justice of the Supreme Court decides on a dispute on case jurisdiction when such dispute arises between the courts or chambers of the Supreme Court.

The Chief Justice of the Supreme Court also takes a part in hearings of the Supreme Court regardless of divisions in case chambers.

Appellate court

An appellate court reviews cases upon complaints of the disputing parties.

The Chief Justice of an appellate court makes sure that a seat of judges is resolved by the judges’ consultative meetings, and formalizes appointments of judges to make rulings at the court hearings.

The Chief Justice of an appellate court participates in the hearings of the same court regardless of divisions in case chambers.

An appellate court decides certain disputes as a first instance court when those disputes specifically fall under its jurisdiction.

‘Judges consultative meeting’ comprises of all judges of a court and it:   

• decides on the order for presiding judges;
• decides on the order for judges’ appointments for hearings;
• nominates the Chief Justice of the court;
• approve procedures for case allocation; and
• nominate judges to the General Judicial Council and Judicial Ethics Committee.

First instance court may have chambers to decide juvenile cases, family matters, and employment disputes.

Publication of Court Decisions

Courts are required to post their decisions on their websites.

Civil court   

A plaintiff/defendant may defend himself/herself or hire an advocate or use their representative in civil litigation.

An advocate/s or representative of the plaintiff or defendant must provide the evidence to support their claims or defense. However, the plaintiff/defendant may request the court to utilize its’ power to make an enforcement on provision of information and documents by the other disputing party.

Secret and confidential Information relating to an individual, organization or the government required for case resolution is collected by a court/judge.

A court itself upon the request of a disputing party or through an appropriate organization in another country may collect evidence that is required to be collected overseas. The rules for meeting court requests will be governed by an agreement on mutual legal assistance, or a diplomatic channel will be used if there is no such agreement.

Plaintiff/Defendant may participate in the hearing while their representative/advocate must participate in court hearing in person, and they speak, provide written explanations, submit evidence, and take part in the analysis of evidence.

The Civil Procedure Code of Mongolia (2002) provides that a court may not refrain from applying a law (or statutory act) having concluded that “laws are in conflict, are unfair, or not in conformity with publicly accepted ethical norms”.

As an example, family law disputes, and employment law disputes are decided by one judge at the first instance court.  Cases other than those decided by a single judge are decided by 3 judges at the first instance court.

Three (3) judges sit at the hearings of an appellate court, while 5 judges sit at the Supreme Court hearings.

Judges decide each issue of the case brought before the court by a majority vote. A presiding judge will vote after all other judges vote. No judge will refrain from voting.

Making a claim in court

• In general, a claim is brought with a court located on a territory where a defendant’s residence is located. A law or agreement signed between the parties may provide otherwise in certain circumstances.
• In respect of a defendant which is a business entity, the court on a territory where a governing body is located or where there is a permanent place of business will be approached with a claim.
• Tort claims concerning injuries to life or health may be brought before the court located in the territory where either a plaintiff or defendant resides.
• If an agreement specifies a place where a contractual obligation must be executed, the court located in that place will review and resolve the relevant claim.
• A claim with respect to real estate or opening of asset freezing is brought before a court in the place where asset is located.

Subject to a decision of a judge, the police is utilized to find a defendant if a defendant’s residence is unknown. A loss incurred due to a criminal offence will not be resolved before criminal case is not resolved.

Submission of evidence

Evidence will be submitted before the commencement of a hearing at the first instance court. A court hearing may be postponed only once if there is a requirement for new evidence. Upon a decision of a court/judge, the evidence that is not relevant, or significant to the case, or those not permitted by law may be excluded from the case evidence. In addition, a court or judge may refuse to request an evidence that is not relevant, significant or legally unpermitted.

Judicial costs

The following judicial costs are reimbursed by plaintiff/defendant, or his/her representative or advocate:

• Transportation, accommodation, food, or fees for works/services of an expert/analyst, or interpreter;
• Witness transportation, accommodation, food, salary, or work fee.
• Costs relating inspection, examination, probing, or recognition
• Retention of material evidence
• Taking a testimony from a witness

Stamp Duties

There is a law on stamp duties. Stamp duties are paid for court services and are paid in advance by a plaintiff. If a case is resolved in favor of the plaintiff, stamp duties are paid by the defendant. In that case the stamp duties paid by the plaintiff are refunded. Refunding, exempting from, and reimbursing stamp duties are regulated by the Law on Stamp Duties and  Civil Code.

If a court rejects a claim brought before it, a stamp duty will be refunded. Stamp duties are also refunded if the appellant withdraws a claim before the court hearing in an appellate court or the Supreme Court.

Reducing a claim amount, withdrawing a claim, and mediating the dispute will not result in refunding of stamp duties. Voluntary acceptance of a claim by a defendant resulting in plaintiff’s withdrawal of a lawsuit will lead to refunding 50% of stamp duties paid.

When a court rejects a claim brought before it?

Among other things, a court will not accept and review a claim:

• If a claim is brought by a person who has no power of attorney to represent the plaintiff;
• If there is a valid judicial or arbitral decision on facts provided by a claim or there is judicial or arbitral decision that had rejected the claim or dismissed the case.
• If a court makes a decision on different case relating to things under dispute or grounds for the dispute;
• If an obligation under the dispute is not transferred to a successor in case of a death or dissolution of a business entity;
• Criminal proceedings are taking place in relation to a claim.

Actions to guarantee court decision

The following are actions taken to guarantee court decisions:

• Freeze material asset or monetary asset;
• Preclude a specific action/activity against the amount of a claim in respect of a material asset;
• Halt account movements of a defendant by the amount of a claim;
• Receive, in advance, a claimed amount to an account of the court orders enforcement body;
• Instruct a defendant to do or not to do a specific action.

A judge may decide that several of these actions guaranteeing court decisions are taken at the same time.

A time period for civil case review and resolution  

• 60 days from the date of opening a case on the claim;
• 30 days from the date an appellate court/supervisory court transfers the case for re-deliberation at the first instance court;

The time period specified above may be extended to up to 30 days by the judges’ consultative meeting.

Application of ‘simplified procedure’ in the civil cases resolution

First instance courts have permanent or ad-hoc mediators. Mediation is conducted within a period between the opening of a case and the court hearing. It is the process governed by the simplified procedure of case resolution. In addition to a mediation conducted before a court, the simplified procedure of dispute resolution is utilized:

• When a plaintiff withdraws a claim, or a defendant accepts the claims;
• When a defendant meets demands pointed out in the claim.

A judge approves facts and circumstances leading to ‘simplified procedure’ and dismisses the case by his/her order.

Resolution of a dispute through the ‘simplified procedure’ prevents the plaintiff from bringing a claim at the appellate or supervisory courts. In addition, a plaintiff is not permitted to bring another claim at the first instance court.

A judge may transfer the case to a mediator before or after the opening of a civil case. A stamp duty is reduced 50% if a dispute is resolved through the ‘simplified procedure’.

60 days’ time period is applied to resolve a dispute through mediation. As a result of mediation, a written agreement is entered into by disputing parties and is then submitted to a judge for approval. The judge may take seven (7) days for review and approval of mediation agreement.

If party/s to the mediation agreement fails to enforce the agreement on a voluntary basis, the court orders enforcement body enforces the mediation agreement.