PHAM DIEM
Law and State Institute of Vietnam
In Vietnam, there are two ways of solving administrative complaints.
First is the administrative way. The administrative procedures for handling almost all complaints of citizens and organizations are much simpler than those applied at courts. Administrative settlement of complaints is, in essence, merely the examination and consideration by the executive system itself of its administrative decisions and acts without judging them.
Following the August 1945 Revolution, the Democratic Republic of Vietnam Government promulgated Decree No. 64-SL on November 23, 1945, on the establishment of the Special Inspection Committee functioning to settle citizen complaints. So, the administrative way of settling complaints was established soonest after the Democratic Republic of Vietnam (now the Socialist Republic of Vietnam) was set up. Since then, legal documents governing the administrative procedures and order for settlement of complaints have been constantly improved, particularly with the 1959, 1980 and 1982 Constitutions; the 1981 Law on Complaints and Denunciations, which has been revised many times, the Law on Organization of the National Assembly, the Law on Organization of the Government, and the Law on Organizations of People’s Councils and People’s Committees.
The second way is settlement of administrative disputes by courts, namely the administrative justice. Administrative proceedings, or administrative justice in a broader sense, are typified by the fact that administrative law-related disputes will be settled at courts. They are disputes arising from the area of state administration, the administrative-legal relations. Administrative disputes will be settled by judicial bodies, i.e., courts, according to certain orders and procedures, probably civil procedures, namely the order and procedures for settlement of administrative disputes like civil matters and cases, or separate administrative proceedings, or both.
Immediately after gaining power, the Democratic Republic of Vietnam State promulgated Decree No. 41-SL on October 3, 1945, abolishing all public offices and agencies under the French Governor General in Indochina and setting up ministries and agencies of the Provisional Revolutionary Government. However, in the system of Vietnamese courts, the administrative tribunal was not yet set up then due to war conditions, even though Decree No. 49-SL of June 18, 1949, promulgating the Law on Direct Taxes, stated that taxpayers might file their complaints with administrative tribunals.
Administrative proceedings were initially mentioned in Decree No. 04-SL of July 20, 1957, on election of People’s Councils and Administrative Committees of all levels, which provided that citizen complaints about the listing of voters would be addressed firstly to listing agencies for settlement; if disagreeing with these agencies’ settlement decisions, they could file their complaints at courts.
It was not accidentally provided so by law for the settlement of disputes by courts. Probably, the then lawmakers were more or less aware that the judicial way for solving administrative disputes was a procedural order capable of ensuring legality and protecting civic rights more effectively than the administrative way as it was the order of judicial examination over the executive. Because courts conducted trial independently and only complied with law, the administrative-judicial procedures constitute an order higher than that of the common administrative procedures.
It can be said that such provision of the above-said Decree clearly testified to the initial formation of administrative proceedings in Vietnam, showing that the settlement of administrative disputes in a judicial way appeared much later than the common administrative procedures. However, this judicial institution remained incipient as:
- The settled administrative disputes dwelled on only one subject matter, that was complaint about the listing of voters.
- The judging body was only the district-level court (then called the common court).
- The procedures were similar to civil procedures.
Then, for a long period, the administrative proceedings in Vietnam did not see any considerable development other than incremental supplements to regulations and guidelines on civil procedures, also applicable to administrative proceedings. Such supplements were almost not directly related to the adjudication of administrative disputes as, under law, the administrative disputes adjudicated by courts only dwelt on one subject matter, namely the listing of voters. Moreover, disputes of this type rarely occurred in reality and were never brought to courts for trial. It can be said that this was the initial period in the process of development of administrative proceedings in Vietnam as for a long time importance had not been attached to its development and its actual values were not fully and properly cognized by politicians, lawmakers and society.
The year of 1989 marked an important step of development of the administrative proceedings in Vietnam. With the National Assembly Standing Committee’s adoption of the November 29, 1989 Ordinance on Procedures for Settlement of Civil Cases, the administrative proceedings were raised into a fairly complete institution. The settlement of administrative disputes bore new traits though they remained to be handled by civil courts according to civil procedures. The procedural scope was not limited to the listing of voters but expanded to a number of other matters such as:
- Verification of the missing or death of citizens, excluding the missing or death of army men or officers in the battlefield, which falls under the responsibility of concerned bodies.
- Complaints about civil status bodies’ refusal to carry out civil status registration or to accept requested modifications of details in civil status papers.
- Complaints against press agencies for correction of information that infringes upon the honor and dignity of other persons.
The civil procedures, also applicable to administrative justice, were prescribed in this Ordinance more comprehensively than before.
Several years after the emergence of the Ordinance on Procedures for Settlement of Civil Cases, there were in Vietnamese law only two types of administrative justice as mentioned above. Even it appeared in law, administrative justice was left untouched. For quite a long time, no official suggestions by the State nor proposals by lawmakers as well as scientists on the completion and development of institutions on administrative proceedings were made.
Only until the national renewal was initiated in Vietnam, could the institutions on administrative proceedings and administrative justice be substantively developed. Substantive renewal of the administrative justice was required by the following facts:
First, almost all administrative disputes were practically settled in the administrative way though ineffectively. Many administrative petitions were left unsettled by state administrative bodies and citizens rights and interests were not respected. In numerous cases, the complaints could not be solved thoroughly as they were already settled by competent bodies against the will of the concerned parties that continued to lodge their complaints with superior state agencies or the superior state bodies’ decisions on settlement of complaints were not executed by subordinate state administrative agencies. Such zigzag process lasted from year to year.
This situation was attributed mainly to the fact that the administrative way of settling complaints by state administrative bodies failed to ensure the objectiveness as the complained persons were also the complaint settlers. The administrative procedures for settlement of complaints, though simpler than the legal proceedings, permitted the prompt settlement of matters, but proved to be unobjective and undemocratic. When almost all administrative disputes were solved by administrative bodies, a monopoly of the administration was created, thus badly affecting the objectiveness in the settlement of administrative disputes.
Second, in the course of national renewal with the market economy being built, social life being democratized and the state management mechanism being changed, negative phenomena appeared in the state apparatus, thus giving rise to more and more complicated administrative complaints. If administrative disputes were not settled by an effective mechanism, social stability could not be maintained.
Meanwhile, with the then institutions on administrative justice, the administrative disputes to be adjudicated by civil courts were limited. Expansion of the scope of administrative disputes to be settled by civil courts was almost impossible because such courts were already overloaded. In addition, civil procedures were no longer suitable to administrative cases and matters. If civil procedures continued to be applied to the settlement of administrative cases and matters, legal documents should be promulgated to amend and supplement them. This would cause a lot of problems.
Third, as required by the building of a state ruled by law, administrative and judicial reform and international integration, the renewal of administrative justice and administrative proceedings has become an inevitable requirement in Vietnam.
In such a context, the Vietnamese National Assembly on October 28, 1995, passed the Law Amending a Number of Articles of the Law on Organization of People’s Courts, under which administrative courts were established for the first time as part of the system of People’s Courts.
At the central level, the administrative court is organized in the Supreme People’s Court together with the criminal court, civil court, economic court and labor court.
In provincial-level courts, the administrative court exists alongside the criminal court, civil court, economic court and labor court.
Yet, district-level courts are organized without administrative courts but only with full-time administrative judges.
On May 21, 1996, the National Assembly Standing Committee adopted the Ordinance on Procedures for Settlement of Administrative Cases, under which the scope of administrative proceedings was further expanded to cover the following groups of cases and matters:
- Petitions against administrative decisions or administrative acts in the application or implementation of administrative handling measures of education at communes or wards, confinement to reformatories or medical establishments for treatment, or administrative probation.
- Petitions against decisions on administrative sanctioning.
- Petitions against decisions on dismissal of civil servants of department deputy-head or lower rank, against administrative decisions or administrative acts in the field of land management.
- Petitions against administrative decisions or administrative acts in the grant or withdrawal of permits for capital construction, production and business.
- Petitions against administrative decisions or administrative acts in the acquisition, compulsory purchase or confiscation of property, in tax or tax arrear collection, fee and charge collection.
- Other administrative petitions prescribed by law.
As administrative disputes and petitions in reality are numerous and diverse, they cannot all be brought to courts for trial when the contingent of Vietnamese judges, especially administrative judges, remains inadequate. Moreover, administrative proceedings in Vietnam are extremely new to many. If its scope is expanded to cover too many different types of administrative cases and matters, they could not be all handled by judges who were not trained in adjudication of administrative but other types of cases and are now transferred to work at newly established administrative courts. Hence, adjudication of poor quality was unavoidable.
In face of such situation, lawmakers only prescribed in the said Ordinance the most important administrative disputes directly related to the rights and interests of citizens or organizations and disputes which often arise under the conditions of a market economy and constitute burning issues in society.
With the emergence of the 1995 Law on Organization of People’s Courts and the Ordinance on Procedures for Settlement of Administrative Cases, the administrative justice and administrative proceedings in Vietnam have seen a step of substantive development with the following elements:
- The institutions on organization of administrative justice and the law on administrative proceedings.
- The settlement of administrative disputes is undertaken not by civil courts in the system of People’s Courts as before, but by administrative courts in such system.
- Types of administrative disputes to be handled by courts have been further broadened than before.
- The trial is conducted according to separate proceedings, namely administrative proceedings.
In recent years, the Vietnamese State has many times revised the law on administrative proceedings though the institutions on administrative proceedings remain quite new in the Vietnamese legal system.-