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VIET NAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES Truong Van Truong THE BURDEN OF PROOF IN THE SETTLEMENT OF ADMINISTRATIVE COMPLAINS FROM PRACTICE IN HA NAM PROVINCE Specialized major: Constitutional Law and Administrative Law Code: 9380102 DOCTORAL THESIS IN JURISPRUDENCE HA NOI –2021 The thesis is complete at Graduate academy of social sciences Supervisor: Prof Dr Thai Vinh Thang Reviewer 1: Assoc.Prof., Dr Vu Trong Lam Reviewer 2: Assoc.Prof., Dr Truong Ho Hai Reviewer 3: Dr Nguyen Tuan Khanh Specialized major: Constitutional Law and Administrative Law Code: 9380102 The thesis shall be defended in front of the Thesis Committee at Academy Level at At hour .date .month .year 2022 The thesis can be found at INTRODUCTION The necessity of the thesis Complaints are one of the basic rights of citizens, a tool to protect and restore the rights and interests of citizens, agencies and organizations; Complaint settlement in accordance with the Constitution and the law will contribute to the protection of human rights and citizens' rights, well settle the relationship between the state and citizens, and ensure administrative justice is carried out in the country reality.Therefore, when a complaint arises, it means that an administrative dispute needs to be resolved, but the outcome of the settlement depends on the disputing parties proving the truth of the case In accordance with the law and in accordance with reality, the proof is the responsibility of the parties involved in the complaint settlement process As a basis for deciding to settle complaints, however, this activity in practice still has many shortcomings, first of all, the current legal system on complaints of our country already has regulations Regarding the burden of proof, these regulations are still not really clear, scattered, lack of systematicity, asynchronous in the responsibility of proof in the settlement of administrative complaints In theory, the act of proof in administrative complaint settlement mainly applies the theory of other branches of law, there have not been many studies on the burden of proof in administrative complaint settlement In Ha Nam, in recent years, the implementation of the burden of proof in the settlement of administrative complaints has seen many positive changes, notably the issue of democratic publicity and equality in the complaint settlement process in general and the proof process in particular is guaranteed However, practice still reveals many shortcomings, limitations in theory, and arbitrary status in the performance of the burden of proof in the settlement of specific administrative complaints Therefore, the graduate student chooses the research "The burden of proof in settlement of administrative complaints from practice in Ha Nam province" as the topic of his doctoral thesis Research purpose and resarch task 2.1 Research purpose: The thesis systematically studies the theoretical and practical issues of implementing the burden of proof in the settlement of administrative complaints in Ha Nam province From there, propose solutions to ensure the implementation of the burden of proof in the settlement of administrative complaints in Vietnam today 2.2 Research task: The thesis studies a number of domestic and foreign scientific researches related to the topic Research on the theoretical issues of the burden of proof in the settlement of administrative complaints Research on the legal status of the burden of proof in administrative complaint settlement and the implementation of the burden of proof in administrative complaint settlement in Ha Nam province from 2012 to 2021 Thereby, giving viewpoints and solutions to ensure the fulfillment of the burden of proof in the settlement of administrative complaints Research subject and research Scope 3.1 Research subject: The research object of the thesis is the theoretical issues of the burden of proof in the settlement of administrative complaints; legal status and the implementation of the burden of proof in the settlement of administrative complaints from practice in Ha Nam province 3.2 Research Scope - Content scope: studying the performance of the burden of proof in complaint settlement in the stages of administrative complaint settlement from the receipt and handling of the application to the final stage of the decision to settle the case ; - Spatial scope: research on Ha Nam province; - Time range: the study covers the period from 2012 to 2021 Theoretical basis and research methodology 4.1 Theoretical basis: The thesis is researched based on the point of view of Marxism-Leninism, Ho Chi Minh's thought and the Party and State's views on the state and law, on justice; "rights-based approach" (HRBA), the theoretical system of the Constitutional Law and the Administrative Law, in which the theory of complaints and settlement of administrative complaints play the leading role, serving as the basis of the thesis research 4.2 Research Methodolody 4.2.1 Methodology: The thesis is researched on the basis of dialectical materialism and historical materialism of Marxism Leninism and Ho Chi Minh's thought, the viewpoints and lines of the Communist Party of Vietnam on building Socialist rule of law, on administrative reform strategy, on complaints and administrative complaint settlement In which, dialectical materialism is the main method, used throughout the thesis 4.2.2 Research Methodology: To achieve the research objectives set out, the PhD student uses the current popular social science research methods as follows: analysis, synthesis and comparison methods; ph run summarizing legal practice; p incense investigation measures (expert interview), New scientific contributions of the thesis: The thesis contributes to the theory of the burden of proof in the settlement of administrative complaints in our country and the practice of amending and supplementing a number of provisions of the current Law on Complaints and other legal documents relevant to the exercise of the burden of proof in the settlement of administrative complaints Proposing solutions to ensure the implementation of the burden of proof in the settlement of administrative complaints in Vietnam in the current period Theoretical and practical contribution of the thesis - In terms of theory, the thesis contributes to building the theory and legal basis for the burden of proof in the settlement of state administrative complaints ; - In practice, the competent authorities can exploit and apply to improve the quality and efficiency of performing the responsibility of proof in the settlement of administrative complaints in the locality as well as in the whole country Structure of the thesis: addition to tracking the index, the list of abbreviations and reference lists, thesis layout consists of parts, including the preamble; The thesis content has 04 chapters, the last part is the conclusion Chapter The situation of scientific research related to the thesis; Chapter Theoretical issues about the burden of proof in the settlement of administrative complaints; Chapter Actual situation of the law and implementation of the burden of proof in the settlement of administrative complaints in Ha Nam province; Chapter Viewpoints and solutions to ensure the fulfillment of the burden of proof in the settlement of administrative complaints Chapter THE SITUATION OF SCIENTIFIC RESEARCH RELATED TO THESIS 1.1 The situation of scientific research related to the burden of proof in the settlement of administrative complaints 1.1.1 Status of scientific research in the country - A group of research works related to the theory of the burden of proof in the settlement of administrative complaints In Vietnam so far, there are not many documents and research works on the theory of the responsibility of proof in the settlement of administrative complaints A number of research works directly related to this issue of the Government Inspectorate and other research institutions basically only deal with this issue as a part when interpreting rights and interests the obligations of the subjects participating in the administrative complaint settlement process, typically some inspection documents of the School of Inspectors, or the textbook on inspection and settlement of complaints and denunciations of the Inspector General Hanoi Law University, and scientific articles However, the research results of these works have an important reference value, which is one of the bases for researchers to build a theoretical framework on the burden of proof in administrative complaint settlement - Group of other related research works The PhD student focuses on researching scientific works on the burden of proof in the process of resolving legal disputes in the fields of criminal proceedings, civil proceedings, administrative proceedings and evaluation documents Practical evaluation of the performance of the burden of proof in administrative complaint settlement in Ha Nam province from 2012 to the end of 2021 Thereby inheriting the common problems of the burden of proof in other legal disputes and comparisons Compare and contrast the burden of proof in the settlement of administrative complaints to develop theoretical problems and solutions to ensure effective implementation in practice 1.1.2 The situation of scientific research abroad: Within the scope of the thesis topic, the author studies a number of theories as well as foreign scientific works that are directly or indirectly related to the burden of proof in the settlement of administrative complaints The research works focus on clarifying the performance of the burden of proof in the settlement of administrative complaints based on the provisions of the law; The implementation of the burden of proof depends on the legal system of each country, there are specific provisions on the form of legal dispute resolution between the state and the people, which is carried out by a particular body, according to the law There is a stipulation on the burden of proof of compliance 1.2 Evaluation of the research situation related to the thesis topic: The research work abroad has provided the PhD student with a comprehensive view of the point of view of the burden of proof in the resolution of legal disputes carried out by different procedures (within there is an administrative complaint settlement procedure) Domestic research works have provided graduate students with initial awareness of the burden of proof in administrative complaint settlement in Vietnam From there, inherit the clarified issues and continue to study the unresearched issues 1.3 Issues that need further research: On the basis of absorbing and inheriting research results of previous studies, the thesis continues to study the following contents: Firstly, the theoretical issues of the law on the burden of proof in the settlement of administrative complaints; Secondly, analyze and evaluate the legal status of the burden of proof in the settlement of administrative complaints and the practice of performing the burden of proof in the settlement of administrative complaints in Ha Nam province (since 2011) until the end of 2021); Thirdly, give opinions and solutions to improve the law, ensure the implementation of the burden of proof in the settlement of administrative complaints Chapter THEORETICAL ISSUES ABOUT THE BURDEN OF PROOF IN SETTLEMENT OF ADMINISTRATIVE COMPLAINTS 2.1 The concept, characteristics, meaning and basis of the burden of proof in the settlement of administrative complaints 2.1.1 The concept of administrative complaints and settlement of administrative complaints - Administrative complaints are the individuals, agencies and organizations that require the agency managing the state administrative review of administrative decisions, administrative acts or disciplinary decisions of officials and servants when there are grounds to believe that such decisions or acts are illegal, directly infringing upon their legitimate rights and interests - Settlement of administrative complaints means the handling, verification, conclusion and decision-making on complaint settlement It can be seen that, stemming from the protection of their legitimate rights and interests, the subjects participating in the process of settling administrative complaints are guaranteed by law to exercise their rights associated with the responsibility to clarify the facts of the case to serve as a basis for settlement 2.1.2 The concept of burden of proof in administrative complaint settlement - Proof in administrative complaint settlement is a process by which the subjects prove on the basis of the provisions of law on complaints and administrative complaint settlement to detect, collect, 11 administrative complaint case should be determined by evidence during the settlement of the administrative complaint case - Subjects of proof include: + Firstly, the group of object prove valuable to clarify status of complaints; + Second , the group of objects of valuable evidence to clarify the legitimacy of the complained administrative decision or administrative act; + Third, the group of objects of valuable evidence to clarify the correctness (reasonability) of the complained administrative decision or administrative act 2.3.2 Proving content a) Issues to prove about the complaint conditions, including: proving the eligibility of the complainant; demonstrate eligibility for the complaint procedure and demonstrate that the statute of limitations for filing a complaint remains within the statute of limitations b) Issues to be proved as a basis for assessing the legitimacy of the complained administrative decision or administrative act - For the complained administrative decision, the subjects with the burden of proof must prove the following basic issues: firstly, on the authority to issue the decision ; h who, on the statute of limitations, duration, order and procedures for issuing decisions - For complained administrative acts : including acts of action and acts of inaction 12 c) Issues to be proved to serve as a basis for assessing the reasonableness of the complained administrative decision or administrative act - Whether the content of the administrative decision is suitable with economic conditions; - Appropriate form in specific cases; - Timeliness of administrative decisions 2.2.3 The subject is responsible for proving and the evidence to prove it a) The subject is responsible for proving: In a complaint, administrative clearance , the burden of proof belongs to the parties involved, first of all, the complainant is the first subject and the one who actively implements it, followed by the complainant, the complaint settler and the complainant persons with related rights and obligations The legal basis for the responsibilities of the subjects is regulated by the Law on Complaints 2011 in Articles 12, 13, 14, 15 and 16, but for people with related rights and obligations not yet regulated by current law b) Proving evidence - Concepts, characteristics of evidence + Definition: Evidence is the real thing that is provided or received by the complainant, the complainant, relevant agencies, organizations and individuals or collected or received by the complaint settler when other subjects hand over or present according to an order and procedure prescribed by the law on complaints and settlement of complaints, which is used by the complaint settler as a basis for determining the objective circumstances of the case as well as determining whether or not the complainant's claim or objection is grounded and lawful and determining the administrative or 13 administrative action or disciplinary action against an officer, civil servants are correct or not in accordance with the provisions of the law + Features: Firstly, the evidence has objective characteristics; Secondly, the evidence has relevant characteristics; Thirdly, the evidence has a legal character - Source, collect and verify evidence + Sources of evidence in the settlement of administrative complaints, including: readable, audible and visible documents, electronic data; exhibits, contents presented and reflections of the complainant, persons with related rights and obligations, witnesses and explanations of the complainant; status inspection report (on-site appraisal); assessment conclusions; results of appraisal and valuation of assets; a written certification of legal facts or acts made by a competent person; notarized, authenticated documents and other sources as prescribed by law + Collecting and verifying evidence: the collection of evidence by the subject of the burden of proof is done on the basis of the provisions of the law on Complaints, settlement of administrative complaints, the Law on Access to Information, Responsibility accountability of state management agencies, grassroots democracy regulations, etc The verification of evidence is carried out when it is necessary to clarify the source and the probative value of the evidence - Preserving, protecting, accessing, exchanging, evaluating and using evidence 14 - Preservation and protection of evidence : after collecting evidence, the subject carrying out the burden of proof must organize the preservation of evidence in order to fight against distortion and incompleteness as it is - Access and exchange of evidence: the subjects must know and consider and evaluate the documents and evidences used to clarify the circumstances and events to clarify the objective truth of the case - Evaluation and use of evidence: The evaluation of evidence is the process by which the subject carrying out the burden of proof considers the probative value of each evidence and the relationship of the evidence in the elucidation of the evidence the object of proof to serve as a basis for deciding to settle the case Use of evidence is the selection of evidence openly to clarify specific facts and events to determine whether the complaint is true or false, or true or false 2.3 Factors to ensure the implementation of the burden of proof in the settlement of administrative complaints - Firstly , the law on complaints and settlement of administrative complaints is regulated in the direction of openness and democracy and must be absolutely complied with by responsible entities ; - Second, being objective, comprehensive, accurate and complete in the performance of the burden of proof; - Third, the equality between the actors in the implementation burden of proof and the coordination of agencies and organizations to provide information, documents and evidence 15 Chapter ACTUAL SITUATION OF LAW AND IMPLEMENTATION THE BURDEN OF PROOF IN SETTLEMENT OF ADMINISTRATIVE COMPLAINTS IN HA NAM PROVINCE 3.1 Current status of legal regulations on the burden of proof in the settlement of administrative complaints The law on the burden of proof in the settlement of administrative complaints is stipulated in the law on complaints and denunciations of citizens, derived from the constitutional right to complain and denunciation of citizens From Ordinance No 64 of November 23, 1945 of the President of the Government of the Democratic Republic of Vietnam on the establishment of the Special Inspection Committee, to the Law on Complaints of 2011 stipulating the burden of proof in the settlement of administrative complaints mainly expressed in the following contents: 3.1.1 Principles of carrying out the burden of proof 3.1.2 The burden of proof of the complainant and the person with related rights and interests 3.1.3 The burden of proof of the complainant 3.1.4 The burden of proof of the complaint settler 16 3.1.5 Legal provisions related to proof in administrative complaint settlement 3.2 Situation of administrative complaints and settlement of administrative complaints in Ha Nam province 3.2.1 Situation of administrative complaints: The situation of administrative complaints in Ha Nam province has many complicated developments, occurring in many areas of state management from the province to the grassroots with many cases of complaints that are overcrowded, but focused mainly on complaints Weaknesses are still in the fields of land, natural resources, environment, and policies 3.2.2 Administrative complaint settlement situation - From 2012 to 2021, Ha Nam administrative agencies from the province to the grassroots received 36,798 turns of citizens complaints, denunciations, reflections and recommendations (including forms: periodical reception, regular reception) regularly and irregularly), specifically in 2012 followed by 3,781 turns - Results of settlement from 2012 to the end of 2021: the person competent to settle complaints in Ha Nam administrative agencies from the province to the commune has received, accepted and settled 930 cases under their competence, has settled 892/930 cases reached 95.9% 3.3 Actual situation of carrying out the burden of proof in administrative complaint settlement in Ha Nam province 3.3.1 The actual performance of the claimant's burden of proof 3.3.2 Actual status of performing the burden of proof by the complainant and the complaint settler 17 3.3.3 Actual situation of performing the burden of proof by lawyers and people with related rights and obligations 3.4 General assessment 3.4.1 Advantages - The performance of the burden of proof in the settlement of administrative complaints is carried out on the basis of science, the principle of materialistic dialectic about violations of the administrative law and on the basis of the law on complaints and administrative complaint settlement - Effectively implementing the provisions on grassroots democracy, people's awareness of the law in general and the law on complaints and settlement of complaints in particular has been raised one step proportional to the socio-economic development of the country in general and of Ha Nam in particular 3.4.2 Limited and Causes 3.4.2.1 Restrictions - Firstly, the complainant encounters many difficulties in the process of carrying out the burden of proof; - Second, the publicity and democracy in administrative complaint settlement activities are not high; - Thirdly, the proof skills of the subject who is competent to settle complaints are still limited, especially at the grassroots level; - Fourth, the means of verification are limited, the coordination with other agencies has not been highly effective; - Fifth, the right to argue during the proof has not been guaranteed; 18 - Sixth, the quality of inspection, supervision and settlement of complaints has not been highly effective 3.4.2.2 Causal a) Objective reasons - Firstly, there is no favorable legal framework to ensure the good performance of the burden of proof in the settlement of administrative complaints; - Secondly, the contradiction, inconsistency between the legal complaints and between the law on complaints and the provisions of the law on other fields ; - Thirdly , there are no longer sufficient documents and valid evidences to prove the circumstances and events related to the implementation of the land policy in Ha Nam province b) Subjective causes - Firstly, the power of the whole political system has not been brought into play in the settlement of administrative complaints in general and in the activities of proving the settlement of administrative complaints in particular; - Secondly, the limitation on the theory of proof in the settlement of administrative complaints; - Thirdly, the complaint settler always has an advantage over other subjects in the process of performing the responsibility of proving administrative complaint settlement; - Fourthly , the number of staff working to advise and settle administrative complaints is still small, especially at the grassroots level without basic training 19 Chapter VIEWPOINTS AND SOLUTIONS TO ENSURE THE FULFILLMENT OF THE BURDEN OF PROOF IN ADMINISTRATIVE COMPLAINTS SETTLEMENT 4.1 The point of view of ensuring the fulfillment of the burden of proof in the settlement of administrative complaints 4.1.1 Improving the performance of the responsibility of proof must be associated with administrative responsibility in state management; 4.1.2 The law on the burden of proof must be synchronized and inherited from other branches of law at home and abroad; 4.1.3 Ensuring human rights and citizens' rights in order to well settle the relationship between the state and the people 4.2 Solutions to ensure the fulfillment of the burden of proof in the settlement of administrative complaints 4.2.1 Building a favorable legal framework for the implementation of the burden of proof in the settlement of administrative complaints: The subjects with the responsibility to prove in the main complaint settlement only perform their 20 responsibilities well under the provisions of law, especially in the rule of law state 4.2.2 Raising awareness of the subjects about the burden of proof in administrative complaint settlement: Consciousness is a subjective matter, the burden of proof will not be implemented or implemented ineffectively when the subjects performing the burden of proof are not aware of their responsibility to have the obligation to prove and clarify the legitimacy and rationality of the complained administrative decision or administrative act 4.2.3 Improve the proof capacity of the subject responsible for proof in the settlement of administrative complaints: The burden of proof in the settlement of administrative complaints does not have a complete theoretical system and the law is not strictly regulated, so it is imperative to constantly improve the capacity of proof for the subjects who carry out the burden of proof is inevitable 4.2.4 Create the most favorable conditions for Lawyers to participate in the proof process in settling administrative complaints: One of the measures to ensure that complainants perform well their burden of proof is to create the best conditions for lawyers to participate in the proof process in administrative complaint settlement when they receive advice or claim authorization 4.2.5 Strengthening facilities, equipment conditions and coordination relationship between agencies, organizations and individuals: Good facilities are not only convenient for complainants to discover and collect documents and evidences, but also are basic conditions to ensure the timely implementation of the principle of timeliness in complaint settlement in general and in proof in 21 particular when it is combined with the rhythmic coordination of relevant agencies, organizations and individuals 4.2.6 Strengthening democracy in the performance of the responsibility of proving administrative complaint settlement: The performance of the burden of proof is one of the measures to implement democracy in administrative complaint resolution and vice versa, the more democracy is expanded, the more the responsibility of proof is guaranteed to be implemented in practice 4.2.7 Strengthen supervision, inspection, examination and handling of violations in performing the responsibility of proving administrative complaint settlement: Inspection and examination is one of the cycles of state management, so in the performance of the burden of proof, it is also necessary to inspect, examine and supervise the subjects performing their responsibilities in order to ensure that such activities not violate the law, in case of violations, promptly handle them to ensure that the law is respected in this process 4.2.8 Some recommendations for Ha Nam province - Unify the perception that the responsibility to prove in the administrative complaint resolution is the duty and obligation of the subjects participating in the administrative complaint resolution process; - Create favorable conditions for complainants to exercise their responsibility of proving in the process of administrative complaint clearance with the strengthening of democracy in state administrative management in general and in the process of proving administrative complaint clearance in particular; 22 - To have a mechanism to encourage and reward those on duty and to strengthen material foundations, means and techniques to meet the requirements of detecting, collecting, examining, preserving and evaluating documents and evidences demonstrate the facts and facts that are the basis for the decision on administrative clearance; - In parallel with the above solutions, legal propaganda to the people about the responsibility of proof in the settlement of administrative complaints by appropriate forms CONCLUSION Carrying out the burden of proof is one of the most important aspects of the complaint process and administrative complaint settlement The results of the performance of the burden of proof are the basis for the issuance of decisions on settlement of administrative complaints The settlement of administrative complaints conducted by administrative officials is the priority solution for complainants, which is the main solution in our country, so the burden of proof in the process of settling the case belongs to the authorities stakeholders However, the first burden of proof belongs to the complainant and the subject who is responsible for proving is mainly the complainant As a procedure for settling administrative disputes in the administrative criminal law system in order to well settle the relationship between the state and the people, the implementation of the burden of proof in the settlement of administrative complaints 23 must be carried out The main process must be conducted according to a strict process, from the step of detecting, collecting, examining and processing evidence to the step of evaluating and using evidence, together with a logical system of evidence and a legal system Adequate law creates a favorable corridor for subjects to carry out their burden of proof In order to perform well the responsibility of proof in the settlement of administrative complaints in the immediate as well as in the long term, it is necessary to have a consistent view that the responsibility of proof is always associated with administrative responsibility - adverse consequences when the subjects violate the law in the process of performing its burden of proof , which is the liability of the breach Proving responsibility subjects will not be able to effectively carry out their demonstration activities if democracy is not truly promoted and the proof activities are not aimed at protecting people, for people In order to improve the burden of proof in the settlement of administrative complaints, there must be an effective implementation solution in which the solution of building a favorable legal corridor must be prioritized for implementation Because the characteristic of the rule of law state is to manage society by law Next is the solution to affect the consciousness and correct perception of the burden of proof in the settlement of administrative complaints and take measures to create the most favorable conditions for the subjects to carry out their responsibilities Along with other solutions, it is impossible not to perform well the inspection, examination and supervision of the performance of the burden of proof in the settlement of administrative complaints against the subject who is the person competent to settle administrative complaints main 24 In summary, the study of the burden of proof in administrative complaint settlement is very important and necessary both in theory and in practice Because the theory is still lacking, just stop at the relevant issues; about the fact that the situation of administrative complaints is becoming more and more complicated in proportion to the increasing protection of legitimate rights and interests of people and responding to the requirements of deeper international integration and expansion of our country in the current era of industrial revolution 4.0 LIST OF SCIENTIFIC RESEARCH CONTENTS Publication Names of research projects year Nguyen Anh Tuan & Truong Van Truong(2015), Discuss the concept and 2015 characteristics of re-inspection, Inspector magazine number 6-2015 Truong Van Truong (2015), Theoretical basis for the organization and operation of 2015 administrative inspectors, Inspector magazine number 9-2015 Truong Van Truong (2016), Overview of some inspection models in the world, Inspector 2016 magazine number 02-2016 Nguyen Ngoc Huan & Truong Van Truong(2017), Learn about freedom of belief 2017 and religion through Vietnam’s Constitution and Laws, Inspector magazine number 04-2017 Truong Van Truong (2018), The basis of proving activity in the settlement of 2018 administrative complaints, Juornal of Education and Society number 92(154) 12/2018 Truong Van Truong (2019), Some theoretical issues about the burden of proof in the settlement of administrative complaints, Juornal 2019 of Education and Society, Special period number 1- 4/2019 ... complaint settler 16 3.1.5 Legal provisions related to proof in administrative complaint settlement 3.2 Situation of administrative complaints and settlement of administrative complaints in Ha Nam province... Results of settlement from 2012 to the end of 2021: the person competent to settle complaints in Ha Nam administrative agencies from the province to the commune has received, accepted and settled 930... the settlement of specific administrative complaints Therefore, the graduate student chooses the research "The burden of proof in settlement of administrative complaints from practice in Ha Nam
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