Thousands of legal documents issued last year in the country were detected to be unlawful in one aspect or another, according to a recent report of the Ministry of Justice.
The report, which presents the results of the examination and handling of legal documents in 2017, reveals that out of over 40,000 documents reviewed, 5,639 were found to be unlawful. Of these, 1,236 legal documents were issued ultra vires or had unlawful contents, 3,829 were issued based on improper legal grounds or improperly presented, and 574 are non-legal documents containing legal norms.
The Ministry of Justice’s Department of Examination of Legal Normative Documents alone scrutinized more than 5,800 documents issued by ministries, ministerial-level agencies and provincial-level People’s Councils and People’s Committees. It discovered 157 ones with unlawful contents or issued by incompetent agencies or persons, including 131 issued by local administrations and 26 issued by ministries and ministerial-level agencies. By sector, of these unlawful documents, 85 govern economic issues, making up 54 percent; 43 belong to the interior sector, accounting for 28 percent; and 29 fall in the areas of science, education, culture and social affairs, making up 18 percent.
The Ministry of Justice further reports that some documents contain provisions which restrict business freedom and negatively affect production and business. They provide investment and business conditions ultra vires or impose additional requirements on the organizational structure and operation of businesses, thus limiting their autonomy.
“This situation exerts a great impact on the economic development and business investment environment,” the report says.
|A seminar on the elaboration, examination and review of legal documents in Tuyen Quang province__Photo: Internet
Undoubtedly, the issuance and implementation of unlawful documents have caused serious consequences. Through the examples below, we can see how these documents badly affect the consistency, uniformity and feasibility of the legal system and, as a result, reduce the efficacy and effectiveness of the state management.
As reported by the Tuoi Tre (Youth) daily, paint and coating companies in the southern province of Binh Duong have been on tenterhooks because of a decision on retrospective collection of environmental tax issued by the provincial Customs Department. Under the decision, which stems from a guidance of the General Department of Customs, paint and coating enterprises will have to retrospectively pay environmental tax for all customs declarations submitted since January 1, 2012, the effective date of the 2010 Law on Environmental Protection Tax; otherwise, they will additionally face fines and bear late-payment interests. To justify their decision, customs offices cite two recently issued guiding texts, one decree and one circular, which say that paints and coatings are liable to environmental tax. However, these items are not on the list of taxable objects issued together with the 2010 Law on Environmental Protection Tax.
Let’s see another example. In 2016, the State Bank issued Circular 32 on the opening and use of payment accounts, stipulating that only individuals and legal persons may open payment accounts at banks. These few words have placed many people in a situation where they do not know whether to laugh or cry.
Lawyer Huynh Minh Vu, head of Huynh Minh Vu Law Office in Ho Chi Minh City, told the Tuoi Tre that he had previously opened a payment account under the name of his law office to conduct transactions with clients. After Circular 32 took effect, although the account number was keep unchanged, the account holder was no longer Vu’s law office but he himself. Law offices are not regarded as legal persons under Vietnam’s current law and, therefore, disallowed to open payment accounts.
“The change of the account holder from the law office to an individual makes me look unprofessional in the eyes of my clients as they might wonder why they use services provided by the law office but have to make payments to me,” Vu said.
According to the Department of Examination of Legal Normative Documents, Circular 32’s provision that “subjects allowed to open payment accounts at banks include only individuals and legal persons” is unlawful as it restricts the right of entities without the legal person status as well as the right of banks to provide payment services to such entities.
Asked by the Tuoi Tre about the calculation of damage caused by unlawful documents, Dong Ngoc Ba, Director of the Department of Examination of Legal Normative Documents, said the Ministry of Justice has neither official statistics nor capacity to determine such damage.
“Examination agencies may only conclude that ministries, sectors or local administrations issue documents establishing administrative procedures or imposing business conditions against the law, but can hardly determine how these documents affect the society and business community,” Ba said.
“When lodging complaints about unlawful documents, people and businesses tend to pay attention to the legal grounds for promulgation of these documents but forget to mention their damage,” he added.
Reasons behind the situation and solutions
The Ministry of Justice, in its report, lists several reasons for the huge number of unlawful documents such as insufficient staff and lack of data serving examination work. The ministry also cites the rapid increase in the number of documents issued every year as well as inadequate regulations on examination work as causes of the situation.
In his interview with the Tuoi Tre, Ba also said the system of agencies empowered to issue legal documents is “very complicated.”
At present, according to the 2015 Law on Promulgation of Legal Documents, ministers are competent to promulgate circulars, provincial-level People’s Councils adopt resolutions, and provincial-level People’s Committees issue decisions. District- and commune-level administrations may also issue legal documents when so specifically assigned by law. Hence, nationwide, there are more than 20,000 entities competent to issue legal documents.
The absence of a mechanism for determining damage caused by unlawful documents as well as for specifying responsibilities of issuing agencies can also be attributed to the problem.
“For the time being, there is no regulation on compensation for damage caused by unlawful documents to people and businesses. The current law does require promulgating agencies to remedy the consequences but fails to mention the compensation for damage,” Ba said.
To address the situation, the Ministry of Justice has proposed several solutions. Firstly, ministries, sectors and localities would have to strictly control and examine legal documents under their management, particularly documents directly affecting people, enterprises and the investment and business environment; documents containing implementing regulations; and documents stirring public concerns. Secondly, competent agencies should keep a close eye on the handling of lawful documents, especially those infringing upon lawful rights and interests of organizations and individuals. Heads of agencies and units in charge of drafting and appraisal of documents would be held responsible in case these documents are found to be unconstitutional and unlawful or inconsistent with other documents. Finally, responsibilities of each involved agency, unit or individual should be specified.- (VLLF)