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Official Gazette

Friday, August 14, 2020

Administrative law in Vietnam

Updated: 09:43’ - 03/03/2011

Pham Diem
State and Law Institute of Vietnam

Administrative law is a key branch that emerged earliest in the Vietnamese legal system. It is composed of legal provisions governing social relations and execution-management relations arising in the field of organization and operation of the state administration. The provisions of administrative law constitute basic legal tools for the performance of state management and enforcement of the executive powers.

The administrative law spells out the principles, forms and modes of state management, provides regulations on state management subjects and regulates activities of state employees, public-duty regimes, administrative procedures and administrative responsibilities.

State administration subjects include state agencies (mainly state administrative bodies), competent state employees, and organizations and individuals vested by the State with the power to perform administrative management in a number of specific cases. These subjects, when participating in administrative-management relations, are entitled to utilize state powers to direct objects under their management with a view to performing the management while guaranteeing the rights and obligations of parties involved in state administrative-management relations. State management in the executive field is state administrative management. State administrative management activities are carried out by all state agencies, but mainly by administrative state bodies, while other state agencies such as state power organs, procuracies and adjudication agencies, also perform certain acts of administrative management.

As in Vietnam, the State is organized and operates on the principle of centralism, with state administrative management activities placed under the supervision of state power organs. At the same time, the law also guarantees the proactiveness and creativeness of such activities, as clearly manifest in that the administrative management subjects may set forth management policies and measures suitable to different objects in order to fulfill their tasks on the basis of studying and taking into account specific situations.

The administrative law governs social relations established in the field of state administrative management. These relations are classified into the following three major groups:

1. Administrative relations arising in the course of carrying out execution- management activities in various aspects of the social life by state administrative agencies. This group constitutes the basic subject of regulation by the administrative law. Through these relations, state administrative bodies perform their respective basic and peculiar functions. These relations are very diverse, including:

- Administrative relations between superior and subordinate administrative agencies within the hierarchical system, such as between the Government and provincial-level People’s Committees or between the Ministry of Education and Training and provincial-level Departments of Education and Training;

- Administrative relations between state administrative agencies with general competence and state administrative agencies with specialized competence of the same level, for instance, between the Government and the Ministry of Finance at the central level or between People’s Committees and Justice Departments at the provincial level;

- Administrative relations between state administrative agencies with specialized competence at the central level and state administrative bodies with general competence at lower levels, for instance, between ministries and provincial-level People’s Committees;

- Administrative relations among state administrative agencies with specialized competence at the central level, for instance, between the Ministry of Planning and Investment and the Ministry of Finance in state budget management;

- Administrative relations between local state administrative agencies and centrally run units stationed in localities, such as between district-level People’s Committees and universities;

- Administrative relations between state administrative agencies and their attached establishments, such as between the Ministry of Justice and law universities;

- Administrative relations between state administrative bodies and economic organizations of non-state economic sectors, such as between district-level People’s Committees and agricultural, handicraft and cottage industry cooperatives in districts;

- Administrative relations between state administrative agencies and political, social or professional organizations, such as between the Government and the Vietnam Fatherland Front as well as its member organizations;

- Administrative relations between state administrative agencies and citizens, foreigners as well as stateless persons.

2. Administrative relations established in the process of developing and consolidating internal working regimes of state administrative agencies in order to stabilize their organizations for accomplishment of their functions and tasks.

These are internal administrative management relations of a state agency (state-power organ, administrative agency or judicial agency). As each state body has its specific functions and tasks, in order to perform its respective functions and tasks, it must carry out internal management activities, which must be well organized, especially such activities as internal inspection, professional training of personnel, coordination among various sections of the agency, office work, assurance of necessary material conditions, etc.

3. Administrative relations established in the process of carrying out administrative management activities by agencies, organizations or individuals vested with powers by the State in a number of specific cases prescribed by law.

Execution management activities may, in many cases, be delegated by law to state bodies other than administrative agencies, and to organizations or individuals. Such power delegation is effected for different reasons, political or organizational, in order to ensure efficiency. Therefore, state administrative management activities are carried out not merely by state administrative agencies.

In Vietnam, legal documents containing administrative-law provisions make up a large proportion of total legal documents. Those issued by state-power organs and administrative agencies constitute a large and most important source of Vietnamese administrative law.

The sources of administrative law are very rich, diverse and complicated. By promulgating agency, it comes from the following principal sources:

1. Legal documents promulgated by state-power organs

Legal documents promulgated by the National Assembly have the highest legal effect. They include the Constitution and laws which contain normative regulations of administrative law, especially the Law on Organization of the Government, the Law on Organization of People’s Councils and People’s Committees; resolutions on socio-economic tasks, state budget and working regulations of the National Assembly. They are also ordinances of the National Assembly Standing Committee, especially the Ordinance on Cadres and Civil Servants and the Ordinance on Handling of Administrative Violations.

Resolutions issued by People’s Councils are legal documents of local state-power organs.

2. Legal documents issued by the President

They include the President’s orders and decisions (orders on promulgation of laws or ordinances, and decisions on the functions, tasks, powers and organization of the Presidential Office).

3. Legal documents issued by state administrative agencies, including:

- Government decrees which are of three types: (1) decrees detailing the implementation of laws or ordinances, usually referred to as guiding decrees; (2) decree defining the tasks, powers and organizational apparatuses of ministries, ministerial-level agencies, government-attached agencies and other bodies under the Government; and (3) decrees prescribing matters which are extremely necessary but the conditions for formulation of laws or ordinances remain insufficient, which aim to meet state management, economic management and social management requirements.

- Prime Minister decisions, prescribing matters on management of activities of the Government and the state administrative system from the central to local level; providing measures for coordinated activities of cabinet members, inspection of operation of government agencies and People’s Committees at different levels in the implementation of state policies and laws.

- Circulars of ministers or heads of ministerial-level agencies.

- Decisions and directives of People’s Committees.

4. Legal documents issued by the Supreme People’s Court or the Supreme People’s Procuracy, including:

- Resolutions issued by the Judges’ Council of the Supreme People’s Court to guide courts in the uniform application of law;

- Circulars issued by the President of the Supreme People’s Court for organizational management of courts;

- Circulars issued by the Chairman of the Supreme People’s Procuracy to prescribe measures for the performance of tasks and exercise of powers by procuracies.

5. Legal documents, which are jointly drafted and promulgated by a number of agencies and/or organizations. Each joint document regulates a number of matters requiring coordinated settlement by these agencies and/or organizations to ensure effectiveness.-

VNL_KH1 

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