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MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE HANOI LAW UNIVERSITY NGUYEN MANH HUNG DELIMITATION OF THE JURISDICTION TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASES IN VIETNAM Specialized Major: Theory and history of state and law Code: 62.38.01.01 SUMMARY OF DISSERTATION HANOI - 2013 The dissertation is completed at: HANOI LAW UNIVERSITY Academic Supervisor: Prof. Dr. Pham Hong Thai Reviewer 1: Prof. Dr. Hoang Kim Que Reviewer 2: Ass. Prof. Dr. Luong Thanh Cuong Reviewer 3: Dr. Duong Thanh Mai Dissertation will be examined by the Council of Dissertation Evaluation at Hanoi Law University at … date …/…/2014 Dissertation is available at: 1) National Library; 2) Library of Hanoi Law University. 1 INTRODUCTION 1. Theme Selection Reason Since 01/07/1996, administrative dispute was not only solved by administrative procedure but also by administrative court procedure because Vietnam has wanted to ensure that the administrative dispute will be solved more effectively, in order to protect fully the rights and legitimate interests of citizens violated by individual/organization when exercising executive power. However, these two channels were only conducted and completed seperately. Therefore, legal regulations on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam still reveal many issues. The unclear delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases has caused many challenges that are common in reality such as: refusing or shifting responsiblity for dealing with administrative dispute; imbalance in the number of cases and in the quality handled by two channels. These problems do not meet requirements of the principle: State power is unity with reasonable delegation of power to, and co-ordinate and control tightly among State bodies in exercising legislative, executive and judicial rights in process of dealing with administrative disputes under the rule of law state. These mechanisms also do not create favourable conditions for protecting timely and fully the rights and legitimate interests of individual, organization violated by authority when exercising executive power. However, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam has not yet studied in depth, comprehensively and systematically as a dissertation theme. Therefore, dissertation theme: "Delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam" responds to the urgent needs of Vietnam in both legal theory and practical aspect. 2 2. Subject and Scope of Research Theme Subject of research theme includes: - Legislative perspective, content and methods prescribed by current related legal regulations in Vietnam in comparison with the other countries. - Law enforcement of delimitation of jurisdiction in handling with administrative complaint and lawsuit in Vietnam recently. - People’s opinion and scientific assessments of effectiveness, scope and the ways for determining the jurisdiction in handling administrative complaint and lawsuit in Vietnam. Research theme focuses mainly on study the aspects such as: concept and forms of administrative dispute; concept of jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam; concepts, contents and grounds for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases; administrative disputes which are solved under administrative procedure or administrative court procedure according to current legal frameworks in Vietnam; receipt of case files related to administrative complaint and lawsuit according to current legal regulations in Vietnam. 3. Research objectives and study mission Research aims at analysis both theory and practice of legislation and law enforcement in delimiting the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in order to ensure that: individual/organization can exercise fully their rights to select administrative dispute handling measure; good poits of each handling measure will be ultilized whereas weak points will be minimized; jurisdiction to deal with administrative dispute is coherent and consistent with jurisdiction of court to deal with administrative case; effectiveness of mechanism for dealing with administrative dispute in Vietnam will be enhanced. In order to reach the above mentioned objectives, research includes the following tasks: 3 - Clearly determining the scientific grounds for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam. - Evaluating the current practices in delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in both aspects of legislation and law enforcement. - Proposing the opinions and solutions in both legislation and enforcement aspects for ensuring that the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in coming years, meeting requirements of rule of law state and global integration in Vietnam. 4. Research Methodology Research has been carried out basing on the methodology of Marxism - Leninism, Ho Chi Minh thought, and Vietnam Communist Party’s policy for building rule of law state in open market economy and global integration period. In addition, there are some methodologies such as systems, analysis, comparison, synthesis, statistics, specific historical study and results of social surveys carried out in previous studies. 5. Research’s implication in science and practice aspects Dissertation contributes to science in term of determining comprehensively and systematically the jurisdiction in handling with administrative complaint and lawsuit in Vietnam. The dissertation contributes: - The dissertation introduces the concept of administrative redress which includes administrative complaint and initiation of administrative cases. - The dissertation introduces the concepts of jurisdiction to deal with administrative complaints and jurisdiction of courts to deal with administrative cases; points out the trend of diversifying channels for resolving administrative disputes in Vietnam and around the world; and analyses good points and weak points of each channel. 4 - The dissertation defines the concept of delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases; indicates the need as well as the contents and grounds for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases. - The dissertation evaluates the status quo of the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in recent years with regard to legal framewor and practical law application. - The dissertation proposes viewpoints and solutions with regard to legal framewor and practical law application for ensuring the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in coming years, meeting requirements of a rule of law state and global integration in Vietnam. In addition, arguments, evaluations, conclusions and recommendations of the dissertation are reliable and can be good references for researching, teaching and improving the law and promoting the effectiveness of law enforcement in handling with administrative redress and disputes in general and the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in particular. CHAPTER 1 OVERVIEW OF STUDIES RELATED TO RESEACH TOPIC Through assessment of previous studies related directly to the scope of this research, the viewpoints of delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam were mentioned in various ways or even conflicted with each other. Therefore, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam has been a significant topic discussed 5 by many scholars. However, this topic has not yet studied comprehensively and systematically. In addition, the recent changes in legislative views and law enforcement for delimitation of jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam. On the other hand, the current changes in legislative views, legal regulations and law enforcement related to jurisdiction to deal with administrative complaint and jurisdiction of court to deal with administrative lawsuit in Vietnam requires to study about delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam as an essential science task during this period. CHAPTER 2 THEORETICAL BASIS FOR DELIMITATION OF THE JURISDICTION TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASE 2.1. Administrative redress and the diversity of jurisdiction to deal with administrative dispute 2.1.1. Administrative redress In order to ensure consistency of terms, "administrative redress" reflects the common features of administrative complaint and administrative case initiation, which includes: Firstly, administrative redress refers to the right of self-defense and self-determination of the object of public administration when executive power was abused. Secondly, objective of administrative redress refers to implementation of executive power (mainly including administrative decision and action). Thirdly, administrative redress can be carried out only in specific conditions determined by laws. Fourthly, administrative redress must be carried out in the forms determined by laws. 6 Fifthly, administrative redress refers to dispute happened between subject and object of public administration. In brief, administrative redress is the right to self-defense and self- determination of object of public administration through requesting in accordance with the laws the competent state organ to handle with administrative dispute in order to protect the right, legitimate interests that are violated illegally or unreasonable in exercising of executive power. Administrative redress includes two forms as follows: - Administrative complaint is the right to self-defense and self- determination of object in public administration through requesting based on laws the competent state organ to handle with administrative dispute by administrative procedure in order to protect the right, legitimate interests that are violated illegally or unreasonable in exercising of executive power. - Administrative case initiation is the right to self-defense and self- determination of object in public administration through requesting the court to handle with administrative dispute by administrative court procedure in order to protect the right, legitimate interests that are violated illegally or unreasonable in exercising of executive power. 2.1.2. Diversity of jurisdicion to deal with administrative dispute 2.1.2.1. Jurisdiction in handling with administrative complaint Through assessment of the legal regulations and law enforcement on jurisdiction to deal with administrative complaint, jurisdition to deal with administrative complaint is carried out under jurisdition of public administration subject when exercising executive power. This jurisdiction is determined by administrative laws in order to solve the administrative complaint under administrative procedure. Hence, settlement of administrative complaint is a channel of solving administrative dispute through exercising executive power, under the motto: use executive power to control executive power. Therefore, the disadvantages inherent in this channel is not ensuring the objectivity and 7 equality between complainant and complained; is not ensuring requirements of "specialized" in process of dealing with administrative dispute. On contrary, this channel also includes many advantages which should be promoted such as: creating a quick and comprehensive mechanism for handling with administrative dispute; strengthening relationship between the subject and object of public administration; promoting the self- management and self-responsibility of the national administration. 2.1.2.2. Jurisdiction to deal with administrative case Through assessment of the legal regulations and law enforcement on jurisdiction to deal with administrative case, jurisdiction to deal with administrative case is carried out under the jurisdiction of court to adjudicate administrative dispute under the administrative court procedure. Therefore, administrative case adjudication is a channel of solving administrative disputes through exercising the judicial power; under the motto: use judicial power to control executive power. Hence, the disadvantages inherent in this channel are: not ensuring the settlement of administrative dispute quickly; not allowing review and adjudicate the reasonability of the implementation of executive power, or the internal work of public administration; not able to restore directly the rights and legitimate interests of individual/organization which have been violated by exercising executive power; not ensuring the "specialized" element in handling with administrative dispute. However, the advantages of this channel must be utilized such as: settlement of administrative dispute is independently; the equality between the petitioner and petitioned person is ensured; subject’s responsibility in exercising and dealing with administrative dispute will be enhanced. 2.1.2.3. Jurisdiction of administrative tribunals to deal with administrative dispute Administrative tribunals for dealing with administrative dispute is defined as a combining channel of the implementation of executive and judicial power. This tribunal is established on the basis of notion: national 8 public administration is combined of two components: public administration and administrative tribunals. Therefore, the administrative tribunals not only ensures the requirement of "specialized" to deal with administrative disputes but also consists of many advantages of the two channels to deal with administrative complaint and cases. However, the administrative tribunals channel also raises some challenges such as: Firstly, administrative tribunals may interfere deeply into the works related to public management. Secondly, administrative tribunals may face with difficulty in training the their professional staffs who affect directly to the quality of settlement of administrative dispute. 2.1.2.4. Jurisdiction of mediation organ to deal with administrative dispute Settlement of administrative dispute by mediation organ refers to channel which combines a half nature of state power activity and a half of social activity. Therefore, administrative dispute settlement which under the jurisdiction of mediation organ can overcome the common disadvantages of the other channels to deal with administrative disputes under jurisdiction of executive organs, courts and administrative tribunals. However, the administrative dispute resolution of mediation organ also faces with the most difficulty in training and maintaining arbitrators who have appropriate professional skills, experiences, capacities, and reputation for proposing reasonable and acceptable recommendations to the both complainant and complained as well as the other competent organs such as court, executive organs, and administrative tribunals. Therefore, diversifying jurisdiction to handle with administrative disputes is a common trend in countries around the world. However, Vietnam is not able to set up channels to deal with administrative disputes by adminitrative tribunals or mediation organs dute to the lack of capacity. Therefore, dissertation only focuses on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with [...]... that is organ, organization from district to lower level or a competent person of this organ, organization Court at provincial level has function of the first-instance court to adjudicate administrative cases which are not under jurisdiction of the district court Administrative cases related to petitioned person that is organ/ organization at local level or competent person of this organ/organization... area where decision was issued or action was conducted Administrative cases related to petitioned person that is organ/ organization or competent person of this organ/organization at central level will be under jurisdiction of court of area where petitioner is resident, works, or where headquarters is located If petitioner does not have specific living, working address or headquarters is located in territory... determined consistently with the forms of initiation of administrative lawsuit and ensuring the implementation of direct complaint Fourth, the objectives of administrative complaint and objectives of administrative lawsuit are determined consistently as follows: - Adminstrative decision which is a written decision issued by a competent organ, organization or individual prescribed by laws applies once to one... the authority person who is responsible for handling with administrative complaint and the courts On the other hand, annual report of People’s Supreme Court, People’s Supreme Procuracy and results of social surveys of previous studied on the petition status, results of acceptance and settlement of administrative case in Vietnam resently, have indicated that: Firstly, the needs of petition and the number... with administrative complaint or jurisdiction of court to deal administrative lawsuit However, the responsibility to implement these regulations belongs to executive organs and judicial organs, firstly the responsibility of executive organ in receiving administrative complaint and the responsibility of court in receiving lawsuit Therefore, the interacted relationship between two elements of delimitation... administrative complaint, and form of administrative complaint In addition, laws do not define fully the unaccepted cases On the other hand, Annual report of Government, Government Inspectorate and the results of social surveys of previous studies have revealed the status of complaint, result of receiving administrative complaint, and result of resolving administrative complaint as follows: Firstly, although... case are found indirectly through regulations on the cases of transfering lawsuit petitions or returning lawsuit petitions Secondly, transfering of lawsuit petitions may cause problems such as: pushing responsibility of the courts in accepting cases; accepting cases become more complicated; and inconsistent with principle of ensuring the right to make decision and right to self-determine of petitioners... OF DISSERTATION 1 LLM Nguyen Manh Hung (2005), "Defining the right to prosecute administrative case of Procuracy is necessary or not?", Jurisprudence Journal, (3), page 15 - 20 2 LLM Nguyen Manh Hung (2007), "Ensuring the right to complaint and initiate administrative case and the issues of pre-court proceedings", Legal Professions Review, (3), page 29 - 33 3 LLM Nguyen Manh Hung (2007), "Determining... handling with administrative complaint are determined by various legal documents basing on the different contents, methods and legislative views, such as: Firstly, the laws define many types of administrative complaint objectives; do not determine clearly the objectives of the first and the second administrative complaint settlement; do not determine differences between the objectives of the administrative... inaction of a state organ, organization or a competent person prescribed by laws relates to the rights and legitimate interests of one or several particular individuals, organizations in the administrative management activities Fifth, defining clearly objectives of administrative complaints with the objectives of administrative complaint settlement; objectives of administrative lawsuit with the objectives . other hand, annual report of People’s Supreme Court, People’s Supreme Procuracy and results of social surveys of previous studied on the petition status, results of acceptance and settlement of. In addition, there are some methodologies such as systems, analysis, comparison, synthesis, statistics, specific historical study and results of social surveys carried out in previous studies this channel must be utilized such as: settlement of administrative dispute is independently; the equality between the petitioner and petitioned person is ensured; subject’s responsibility in