>>The formation of administrative proceedings in Vietnam
NGUYEN THI THUY, LL.M.
State Administration Faculty
Hanoi Law University
The administrative proceedings law appeared for the first time in Vietnam in the mid-1990s.
On October 28, 1995, the Law Amending and Supplementing the Law on Organization of the People’s Courts was passed by the National Assembly, which clearly stated: “The courts shall adjudicate criminal, civil, marriage and family, labor, administrative and economic cases, and other matters prescribed by law.”
On July 21, 1996, the National Assembly Standing Committee also promulgated the Ordinance on Procedures for Settlement of Administrative Cases.
This was truly an important legal event as from then people had a new tool to protect their rights and legitimate interests via lawsuits at courts and administrative disputes were officially settled by courts through administrative proceedings.
Vietnam’s administrative proceedings law has developed through two periods:
The July 1, 1996-December 25, 1998 period
During this period, the administrative proceedings law was largely contained in the 1996 Ordinance on Procedures for Settlement of Administrative Cases, with the following procedural matters:
- Pre-lawsuit procedures
Before filing their lawsuits at courts, citizens must file their complaints at competent authorities for settlement according to the 1991 Ordinance on Complaints and Denunciations and could only file their lawsuits at courts if they disagreed with the latter’s settlement decisions. These proceedings are called pre-lawsuit procedures.
- Objects of lawsuit
According to the 1996 Ordinance on Procedures for Settlement of Administrative Cases, the objects of administrative lawsuit include administrative decisions and acts.
Administrative decisions specified in Clause 1, Article 1 of the said Ordinance are “written decisions of ministries, ministerial-level agencies, government-attached agencies, the President Office, the National Assembly Office, local state agencies, people’s courts and people’s procuracies of various levels, which are applicable only once to one or a number of specific subjects.”
So, the objects of administrative lawsuit must simultaneously satisfy the following three conditions:
+ Being administrative decisions on application of law;
+ Being administrative decisions directly affecting the rights and legitimate interests of organizations or individuals;
+ Being administrative decisions promulgated by agencies listed above.
The objects of administrative lawsuit can be also administrative acts, including acts of performing or not performing official duties of public servants.
- Courts’ trial jurisdiction
As the first legal document on Vietnam’s administrative proceedings, the 1996 Ordinance on Procedures for Settlement of Administrative Cases could not cover all administrative disputes, which were diverse and complicated, but only listed in Article 11 some types of matters falling under the jurisdiction of courts, which included common disputes between state bodies and citizens.
- Competence for first-instance trial
Under the said Ordinance, the Supreme People’s Court is competent to conduct first-instance trials of and make final judgments on administrative cases which fall under the jurisdiction of provincial People’s Courts but are taken up by the Supreme People’s Court for settlement.
The jurisdiction for settlement of administrative disputes was clearly defined in Article 13 for state bodies and courts.
If a person lodges his complaint with the superior body and also files his lawsuit at a court, the settlement will fall under the jurisdiction of the court.
If the case involves many persons, some of whom file their complaints at superior bodies and others their lawsuits at courts, the settlement thereof will fall under the jurisdiction of the superior bodies.
- Participants in the proceedings
Under the 1991 Ordinance on Complaints and Denunciations, only citizens might lodge complaints and denunciations. Meanwhile, according to the 1996 Ordinance on Procedures for Settlement of Administrative Cases, state agencies, individuals and organizations might initiate administrative cases. Such contradiction caused difficulties to individuals and organizations conducting the administrative proceedings.
Furthermore, the 1996 Ordinance on Procedures for Settlement of Administrative Cases provided that the sued parties were state agencies, heads of state bodies, state officials or employees that have issued administrative decisions or committed administrative acts which, according to the suitors, infringe upon their rights and legitimate interests. Meanwhile, the 1991 Ordinance on Complaints and Denudations provided in Article 10 that complaints against employees of an agency related to the management responsibility of the agency will be settled by the head of that agency.
- Statute of limitations for lawsuits
According to the 1996 Ordinance on Procedures for Settlement of Administrative Cases, the statute of limitations for a lawsuit was 30 days counting from the date the decision on settlement of the first-time complaint is issued. Yet, the law failed to prescribe the time limit for reply to complainants by state agencies.
- First-instance trial stage
As the 1996 Ordinance on Procedures for Settlement of Administrative Cases failed to define the jurisdiction of first-instance trial panels, they met with numerous difficulties in making judgments. This provision gave rise to inconsistent judgments between courts.
The period from December 25, 1998 till now
To overcome the mishaps in the 1996 Ordinance on Procedures for Settlement of Administrative Cases, the National Assembly of the 10th Legislature on December 2, 1998, adopted at its 4th session the Law on Complaints and Denunciations in replacement of the 1991 Ordinance on Complaints and Denunciations.
Later, the 1996 Ordinance on Procedures for Settlement of Administrative Cases was also revised in line with the then practical situation. This, together with the emergence of the said law, created the consistency in the settlement of administrative disputes by both administrative measures and proceedings. However, not a few people held that the then provisions on administrative proceedings remained too strict, making it difficult for people to exercise their right to initiate administrative lawsuits.
- Pre-lawsuit procedures
The revised Ordinance on Procedures for Settlement of Administrative Cases of 1998 (the 1998 Ordinance) still provided that before initiating their lawsuits, individuals and organizations had to file their complaints at competent state bodies.
Yet, under Articles 31, 34 and 36 of the 1998 Law on Complaints and Denunciations, complainants could only receive the decisions on settlement of their first-time complaints after one to two and at half months. Besides, the Law did not contain any provision on competent authorities’ responsibility to reply complainants within the prescribed time limit.
In this period, individuals and organizations might completely initiate their administrative cases if past the prescribed time limit for the settlement of their first-time complaints, they did not receive the decisions on the settlement of their complaints.
- Objects of administrative lawsuit
Under the revised Ordinance on Procedures for Settlement of Administrative Cases, the objects of administrative lawsuit additionally include disciplinary decisions on dismissal of public servants besides administrative decisions and administrative acts prescribed by the 1996 Ordinance.
Administrative decisions being objects of administrative lawsuit in this period were perceived as written decisions of state administrative bodies or competent persons of state administrative bodies, which were applicable only once to one or a number of specific subjects.
Courts’ trial jurisdiction
Under the 1998 Ordinance, the courts’ jurisdiction was broadened to additionally cover seven other types of matters being objects of administrative lawsuit. This further reaffirmed people’s democratic right to initiative administrative cases for protection of their rights and legitimate interests.
Participants in proceedings
As compared to the 1996 Ordinance, the revised one specifically defined the participants in administrative proceedings to include suitors, sued persons, persons with related rights and interests and other proceedings participants.
According to Resolution No. 03/HDTPTATC of the Judges Council of the Supreme People’s Court, guiding the implementation of the 1998 Ordinance, sued persons include individuals and agencies competent to issue administrative decisions and to perform administrative acts according to law.
Statute of limitations
The 1998 Ordinance also provided that the statute of limitations for lawsuits was 30 days after the receipt of decisions on the settlement of first-time complaints or after the expiry of the time limit for the settlement thereof.
Such statute of limitations was 45 days for deep-lying and far-flung regions.
Competence for first-instance trials
Though the powers of first-instance trial panels were not prescribed in the 1998 Ordinance, they were, however, specified in Resolution No. 03/HDTPTATC, under which, first-instance trial panels may accept or reject claims; declare the annulment or upholding of administrative decisions; declare administrative acts as illegal; and make judgments on matters related to court fees, the rights to appeal and compensation for damage (if any).
After signing the bilateral trade agreement with the United States, Vietnam had to revise relevant legal documents, including the Law on Complaints and Denunciations and the Ordinance on Procedures for Settlement of Administrative Cases.
Consequently, the Law on Complaints and Denunciations was revised on October 1, 2004, then June 1, 2006. Meanwhile the 1998 Ordinance on Procedures for Settlement of Administrative Cases was also amended and supplemented and took effect on June 1, 2006, with more specific provisions in 76 articles. Particularly, under the current Ordinance, the administrative proceedings prove to be more open, creating favorable conditions for individuals and organizations to exercise their right to initiate lawsuits.
Both the revised Law on Complaints and Denunciations and the new Ordinance on Procedures for Settlement of Administrative Cases demonstrate the transparency, objectiveness and publicity of law.
Pre-lawsuit procedures
Under current law, individuals and organizations may initiate their administrative cases at courts after they filed their first-time complaints and received decisions on the settlement of their complaints but disgreed with such decisions and did not further lodge their complaints or after the expiry of the time limit for settlement of their first-time complaints, they still did not receive the settlement decisions and also did not further lodge their complaints.
Even when individuals and organizations file their second-time complaints and receive decisions on the settlement of their second-time complaints but disagree with such decisions or past the law-prescribed time limit for settlement of second-time complaints, they still fail to receive any reply, they may also initiate their lawsuits at competent courts (except a number of peculiar cases).
In addition to the statute of limitations of 30 days or 45 days, the 2006 Ordinance on Procedures for Settlement of Administrative Cases also sets time limits for each specific case, aiming to ensure compliance with current law.
The 2006 Ordinance listed 22 types of matters falling under the courts’ jurisdiction. This expansion of courts’ trial jurisdiction constitutes a new step of development of the administrative proceedings law.
At the same time, the provisions on first-instance and appellate trials and other relevant matters have been amended to suit the reality.
Though still very new in Vietnam, the administrative proceedings law has been incrementally improved, thus laying the foundations for the subsequent promulgation of the Administrative Procedure Code.-