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MINISTRY OF EDUCATION MINISTRY OF HOME AFFAIRS AND TRAINING NATIONAL ACADEMY OF PUBLIC ADMINISTRATION TRAN THI HUONG HUE PUBLIC PARTICIPATION IN BUILDING LEGAL DOCUMENTS Major: Public Management Code: 34 04 03 DOCTORAL THESIS SUMMARY HANOI, 2019 The thesis has been completed in: ………………………………… ……………………………………………………………………… Assoc.Prof PhD Vo Kim Son Science instructor: Assoc.Prof PhD Dang Khac Anh Reviewer 1………………………………………………………… Reviewer 2………………………………………………………… Reviewer 3…………………………………………………………… The thesis will be defended before Thesis Assessment Council of Academy Place: Doctoral Defense Room - Meeting Room …… House…… National Academy of Public Administration No: 77-Nguyen Chi Thanh Street – Dong Da Distric – Ha Noi Time: At…… on date………………… This thesis can be searched in National Library of Viet Nam or Library of National Academy of Public Administration PREFACE The reason of choosing the topic Ensuring public participation in building legal documents (LD) plays an extremely important role in ensuring the quality, effectiveness, efficiency and feasibility of the legal documents “Public participation is an essential factor for good governance” [157: p.23], “is an approach that is judged to be the most effective way to achieve social justice, society and human development” [155: p.2] The Politburo’s Resolution No 48-NQ/TU dated May 24, 2005, on the strategy for developing and perfecting Vietnam’s legal system up to 2010, with orientations toward 2020, clearly states: “having the mechanism to attract associations, economic organizations, socio-professional organizations, and good experts to participate in researching and assessing the needs of law policy planning Identifying social reviewing mechanisms and acquiring opinions of different strata for projects and draft legal documents” [10] The document of the 12th National Congress continues to affirm: “Continuing to promote socialist democracy, ensuring that all state power belongs to the people ” [38] However, the current state of public participation is still formal, passive and inefficient According to the 2015 Report on Provincial and Public Administration Index (PAPI), “regarding the participation in the development of policies and laws of the people nationwide, only 13% of the respondents for know that they have participated in the consultation process on national and local draft legal documents” [5] Therefore, the study of the topic “Public participation in building legal documents” aims at explaining the most basic issues about participation, building a theoretical basis for the participation of public in building legal documents in Vietnam Since then, it has contributed to the reality, proposed to the state management agencies to apply measures to ensure effective participation in order to achieve the ultimate goal of improving the quality of the legal documents, improving the effectiveness, validity of state management Research purposes and tasks 2.1 Research purposes The purpose of the thesis research is to clarify the theoretical and practical aspects of public participation in building legal documents, thereby proposing solutions to ensure public participation in building legal documents, contribute to improving the quality, effectiveness and efficiency of legal documents 2.2 Research tasks - Overall assessment of the domestic and international research situation related to the topic, thereby drawing out issues that must be further studied; - Developing a theoretical framework for public participation in building legal documents, which identifies the basic issues of participation content, forms of participation, and factors affecting public participation in developing legal documents in Vietnam presently - Analyzing the state of public participation in Vietnam’s current legal documents’ development - Proposing solutions to ensure public participation in the development of Vietnam’s legal documents, with the ultimate goal of improving the quality, effectiveness and efficiency of the legal documents 3.1 Research subject and scope Research subject The research object of the thesis is issues related to public participation activities in developing legal documents 3.2 Research scope - Scope of content: The thesis conducts research on the most basic issues of public participation, in which answers the two most basic issues of participation of the participation content and form of participation - Scope of time: The thesis conducts research on public participation in building legal documents in the period from when the 2015 Law on Promulgation of Legal documents officially came into effect - Scope of the survey object: The thesis selects forms of legal documents: Laws, Decrees and Resolutions of provincial People’s Councils - Spatial scope: The scope of the survey, collection of data on public participation in building legal documents is in provinces and cities across the country (Thai Nguyen, Dak Lak, Son La, Hanoi, Ho Chi Minh City) Approach perspective, methodology and research method of the thesis 4.1 Viewpoints on approaching the thesis research In order to promulgate legal documents of ensuring quality, serving the socioeconomic development and people’s life, the most important way is for the public (as the object directly affected by the draft legal documents) substantially involved in the process of developing the legal documents, has the right to directly influence the content of the draft legal documents However, from the perspective of managing and developing legal documents, it is an activity of state power, carried out by competent state agencies Therefore, in order to effectively develop the legal documents, it is necessary to consider what the public should participate in and how important it is to influence the content of the draft legal documents Therefore, the thesis refers to two basic issues of public participation: what is the public’s participation in and how is the public involved in the preparation of legal documents? 4.2 Methodology The thesis is based on the methodology of Marxism - Leninism, Ho Chi Minh ideology and the Party’s views and guidelines, the State’s policies and laws on people’s participation in state management activities, establishment of legal documents In addition, the thesis also uses interdisciplinary methodology to study public participation in building legal documents 4.3 Specific research methods 4.3.1 Secondary document research method 4.3.2 Practical research methods - Survey and investigation method - Data processing method - In-depth interview method - Method of taking experts’ opinions Research questions and research hypotheses 5.1 Research questions Question 1: What content does the public participate in establishing legal documents? Question 2: How does the public get involved in developing the legal documents? Question 3: What is the actual state of public participation in developing legal documents? Question 4: How to ensure the real public participation in building legal documents? 5.2 Research hypotheses Hypothesis The public needs to be involved in all aspects of the legal documents’ action, including policy formulation (defining the nature of the problem to be addressed, the target of problem solved, the need for establishing policies, formulating policy options and selecting optimal solutions and positive and negative impacts of policies) and normativeizing activities into draft legal documents (determine the legality, logical, the language used in the draft text) Hypothesis There are many forms of public participation in building legal documents, corresponding to the level of participation, in which there are basically five forms of participation: Information - Consultation - Social reviewing - Referendum Initiative on building legal documents Hypothesis In fact, the public does not fully participate in the contents of the development of legal documents, and the current forms of participation in Vietnam are not sufficient and quality insured for the public to effectively use in participating in developing legal documents Hypothesis In order to ensure effective and actual participation, thereby contributing to improve the quality of the legal documents, it is necessary to ensure that the public is involved in determining the contents of the policy-making period and regulatory policies into draft legal documents At the same time, there is a mechanism for the public to effectively use the five forms of participation in Information - Consultation - Social reviewing - Referendum - Initiative for building legal documents New contributions of the thesis 6.1 Theoretical contribution The thesis’s findings will contribute to perfect the theoretical basis of public participation in building legal documents in Vietnam, an area that is still vacant today Identifying the concept of public participation in building legal documents; The concept of public participation in building legal documents; Content of public participation in developing legal documents; The form of public participation in the development of the legal documents (which proposes two forms of public participation in the operation of the non-applicable legal act preparation is the referendum and the Law on Initiatives of the Legal document formation) At the same time, it also identifies factors affecting the public participation in building legal documents in Vietnam today 6.2 Actual contribution The solutions given are based on the theoretical foundation and practical basis, which are meaningful suggestions to agencies and organizations implementing LD preparation activities Specifically, the thesis provides: A Handbook of the contents of public participation in LD preparation activities Sample Questionnaire on issues of public consultation in LD preparation activities These are optional institutional tools to help agencies and organizations to consult and build LD for consultation and use In addition, specific solutions to improve the effectiveness of the application of participation forms such as using social media, prescribing the form of referendum in law formulation, allowing the public to have the right to the initiative to build LD are good suggestions for state agencies to study and put into State regulations The thesis structure In addition to the preface and conclusion, the list of references, the thesis consists of chapters: Chapter Overview of research situation on issues related to the thesis topic Chapter Rationale for public participation in building legal documents Chapter Current situation of public participation in building legal documents in Vietnam Chapter Opinion and solutions to ensure the public participation in building legal documents in Vietnam at present Chapter OVERVIEW OF RESEARCH SITUATION ON ISSUES RELATED TO THE THESIS TOPIC 1.1 Overview of research related to the topic 1.1.1 Domestic studies 1.1.1.1 The study of legal documents Studies on LD are quite various, reflecting the interest of researchers as well as inconsistencies in the interpretation of this type of text The first trend, in the study of drafting and processing state management documents by author Nguyen Van Tham [91]; Technique of establishment and regulation of the author Luu Kiem Thanh [90]; Basic knowledge about drafting LD by author Nguyen Minh Phuong [76]; Documents and text work in state agencies by the author Van Tat Thu [96] all use the concept of LD as defined in the Law on Promulgation of LD The second tendency is to discuss the issue of revising the LD concept in the Law on Promulgation of LD, in a series of articles On the concept of LD by Ngo Hong Thuy [97]; Regarding the competence to promulgate LD of People’s Council and People’s Committee by author Pham Tuan Khai [61]; The concept of LD from the theoretical and practical aspects by author Doan Thi To Uyen [103] 1.1.1.2 Researches on the development of legal documents Specific researches on LD building activities in Vietnam are still few Most of the books and textbooks are now as follows: Textbooks for building legal documents of Hanoi Law University [35] Textbook of establishment technology and document issuance of the Academy of Administration [57] Basic knowledge about drafting of author Nguyen Minh Phuong [76] Text and text work in state agencies of the author Van Tat Thu [96]; Luu Kiem Thanh’s establishment and regulation technique [90] only refers to the LD development process and that procedure is based on the Law on LD issuance and guiding documents Almost no books mention and clarify the nature of LD preparation activities from theoretical perspective There are also a number of other studies that address LD building activities 1.1.1.3 The study of public concept The studies refer to the public concept quite a lot, it can list some case studies: People’s participation in the constitutional process - Theory, practice in the world and in Vietnam of the authors’ group Dao Tri Uc, Nguyen Thi Mo, Nguyen Van Thuan and Vu Cong Giao [102]; Report on evaluation of consultation process in legislative and regulative process in Vietnam of the National Legislative Development Project 2015 [44]; Public consultation: assessment of the current situation and proposing the proposed plan of the author Nguyen Duc Lam [63]; The participation of social organizations in the process of law-making of author Dinh Ngoc Quy [88]; The research report on hearings at the Parliamentary Committees and the applicability in Vietnam of the authors Nguyen Duc Lam, Hoang Minh Hieu, John Patterson, Kit Dawnay [64] In the studies of the above authors, they either did not explain the term of public, or when explaining the term, there were many different views 1.1.1.4 The study of the content of public participation in LD preparation There are few studies mentioning the content of public participation in LD preparation In the Report of Proposing appropriate and effective consultation mechanism for small and micro enterprises of Vietnam Chamber of Commerce and Industry (VCCI), the content of public participation should be involved in the entire LD preparation activities [75] In the book of The People’s Participation in Constitutional Process Theory, Practice in the world and in Vietnam [102] mentioning the content of public participation in the constitutional building activities may include defining people’s concerns, desires, and policies in the draft Constitution Or to comment on specific contents of the draft Constitution [:p.53-54] In the Ministry of Justice’s Draft Technical Manual on Drafting, Assessing and appraising the impact of LD, it is said that “Depending on the goals to be achieved and the issues under consideration, opinions on various issues may be collected [11: p.340] 1.1.1.5 The study of the forms of public participation in LD preparation The researches on public participation forms in LD preparation are quite diverse but no in-depth studies The article of People’s participation in the public policy making process by Tran Thi Vanh Khuyen [62]; Promote the depth of democracy and increase the participation of the people in Vietnam in the 2006 Policy Dialogue Document [109]; A series of policy discussion reports on public administration reform and anti-corruption by Sara Dix [105] have mentioned the forms of public participation in state management of which there are two basic forms of participation: direct and indirect participation [103]; The legal basis for the participation of social organizations in law development in Vietnam by Tuong Duy Kien and Cao Thi Quyen [60] has mentioned the form of participation of social organizations as the social reviewers” 1.1.1.6 The studies on factors affecting public participation in building legal documents Studies on the factors affecting people’s participation in LD preparation activities in Vietnam are quite numerous, including some typical case studies: Increasing people’s participation in State management activities by the author Ha Quang Ngoc, Ha Quang Truong (2007) [74]; Public participation in the policy process by the author Vu Thanh Son [89]; Report on Provincial Governance and Public Administration Performance Index (PAPI) in 2015 [5]; “Ensuring the right to participate in the state management of citizens in Vietnam” by Pham Tuan Anh [2]; Public consultation: assessing the current situation and proposing the regulated plan by the author Nguyen Duc Lam [63]; Report Proposing appropriate and effective consultation mechanism for small and micro enterprises by Vietnam Chamber of Commerce and Industry (VCCI); UNDP and OXFAM (2015) [75], Legal assessment of the consultation process by author Dao Thi Hong Minh [68], Marking Vietnam’s civil society space by author Le Quang Binh et al [ 8] 1.1.2 The researches in the world 1.1.2.1 The researches of legal documents In the world, very few countries use the term of LD Author Nguyen Van Cuong [20], [21], 22] has studied the concept similar to the concept of LD in Vietnam in the legal documents of some countries such as England, Canada, USA, Australia The research results show that the Vietnam’s LD term is not used in the laws of other countries But in terms of the nature, characteristics and form, Vietnam’s LD term has content similar to the term “legislation” in English 1.1.2.2 Researches on the development of legal documents In the world, very few countries use the term of LD Therefore, there are not many direct studies on LD, but as a type of state management decision, there are quite a lot of studies on how to build it Referring to the law making from the perspective of management decision making theory, in the doctoral thesis of The use of public involvement in Canadian health policy decision-making by Kathy K Li, B.Sc., M.Sc introduced the concept of policy making as a process related to problem identification and solutions, setting of options, implementation, evaluation and summation”.[145] 1.1.2.3 Researches refers to public term There are quite a lot studies that refer to the term of public In the book of Successful transport decision-making A project management and stakeholder engagement handbook (GUIDEMAPS, 2004) [142], Users and implementers of innovative concepts Stakeholder analysis and recommendations for uptake by Buhrmann et al (2009) have defined the public in broad meaning of “The public is any individual, group or organization that is affected by or may affect a draft project and project implementation” [126: p.2] Cary Coglianese, Heather Kilmartin, Evan Mendelson (2008) in the study of Transparency and Public Participation in the Rulemaking Process, A Nonpartisan Presidential Transition Task Force Report, has narrowed the public audience by eliminating state agencies and organizations and only refers to participation in the drafting phase of the regulatory draft, [128: p.2] 1.1.2.4 The researches on the public participation content in building legal documents The researches of the public participation content in management decision-making is well researched, typically The public participation handbook - Making better decisions through citizen involvement by James L Creighton [147], Users and implementers of innovative concepts Stakeholder analysis and recommendations for uptake by Buhrmann et al (2009) [126] and public opinion should be involved in all stages of decision-making 1.1.2.5 The researches on the public participation forms in building legal documents The researches mention a lot of forms of public participation in law making activities Examples of the following are: A Ladder of Citizen Participation by Sherry R Arnstein (1969) [116]; A New Ladder of Citizen Participation by Desmond M Connor (1988) [136]; A guide to effective participation, David Wilcox [135]; Active public participation of OECD; Spectrum of Public participation (Scope of public participation) by IAPP [157]; The public participation handbook - Making better decisions through citizen involvement by author James L Creighton [147] The researches have suggested a participatory model with different types of participation 1.12.6 The researches on the factors affecting the public participation in building legal documents Worldwide, the researches on the factors affecting public participation are diverse In the thesis “Public participation in the making and implementation of policy in Mauritus with reference to Port Louis’s local government” by Sanjiv Kumar Babooa, the subjective influences of participants such as: not desiring to change, not knowing about needs; environmental disapproval, poor response, conflict have been mentioned [160] In the research “An evaluation of public participation theory and practice: The Waterloo Region case” by Galina Miroshnikova (2014) pointed out the reasons for delaying the process of public participation [140] 1.2 Comment on research results and issues 1.2.1 Comment on research results Through the review of the research on LD, LD preparation and the public’s participation in LD preparation show that, although LD concept has been legalized, there are still many debates about the content in reality of concepts and giving different perspectives Secondly, on the issue of LD preparation, LD preparation is often seen from a legal perspective, as the process and procedures for issuing documents that get little attention from the perspective of establishment management decision theory Thirdly, the researches related to public participation in LD preparation are exploited at many research viewpoints Firstly, for the current public concept, although it has been widely used in research by researchers as well as practical activists, who is the public yet to have a unity and there is no official regulation on public concept in legal documents Secondly, the researches on the content of public participation to answer the question of what the public participating in LD establishment activities are currently not specific Thirdly, the researches on public participation patterns show that many types of participation reflect the level of public participation in policy and law making activities Fourthly, on the researches of factors affecting public participation, many factors were identified, from the perspective of state agencies, individual factors of participants, factors under legal institutions At the same time, there are a number of technical reasons, how to organize participation activities 1.2.2 Issues that need to be raised for further research Firstly, it is necessary to have a unified view of LD that comes from management science, from an essential perspective that a particular type of state management decision has an important meaning in proposing a mechanism to elaborate and promulgate quality and effectiveness assurance of this type of document Secondly, on preparation activities, LD needs to recognize that it is essentially a management decision-making activity This explains the public participation in LD preparation activities as a way to ensure the quality, validity and feasibility of documents Thirdly about the concept of public participation in LD preparation, there are many notions about public subjects, so it is necessary to clearly identify who the public is Because only when clearly identifying the public audience it can ensure the participation as well as having an effective way to attract the effective participation of the public subjects Fourthly, regarding the content of participation Fifth, on identifying the forms of participation The level of participation reflects the actual public participation in LD preparation activities In order to provide the participation model, theoretical research as well as practical evidence is required Therefore, it is necessary to concretize and institutionalize this content in order for the public participation to be effective and actual Sixthly, it is necessary to study the factors affecting the public participation in establishing LD as a basis for completing the theoretical basis and proposing solutions to improve the effectiveness of participation Conclusion of chapter In Chapter 1, the author has summarized the domestic and international researches that are directly related to the thesis’s research issues, ie LD issues, LD preparation activities and public participation in LD development (which explores specific issues on public term, concepts of participation, content of participation, form of participation, factors affecting participation) The research results show that there are many researches on public participation in the world today However, for the issue of public participation in LD preaparation in Vietnam, the researches are only in the form of articles, summarized reports but no theoretical and practical research to answer these basic questions of participation of: Who is the public? What is public participation? What is the need and benefit of participation? What does the public participate? Are there any forms of participation in LD preparation? Therefore, through the overview of the research situation, it is shown that the thesis research is necessary and sound Chapter THEORETICAL BASIC FOR PUBLIC PARTICIPATION IN BUILDING LEGAL DOCUMENTS 2.1 Legal documents and legal documents development 2.1.1 Legal documents LD is a concept of a general nature, used to refer to a group of state management documents that share certain characteristics Although this concept is defined in the Law on Promulgation of LD, this concept is still controversial and has been studied from different viewpoints General approach from three approaches, within the scope of the thesis’s study, “Legal documents are a type of management decision, issued by a competent state agency, to regulate the general code of conduct, which contains the common will of the State and society and obligatory in general, to regulate social relations within the scope of functions and duties of the state” 2.1.2 Development of legal documents 2.1.2.1 Concept of establishment of legal documents Developing the LD as “activity of powerizing social standards” [24] is an important form of the state’s operation in the implementation of its functions and duties Currently LD development concept is approached from many different viewpoints Approaching from the perspective of LD as a type of decision, so “LD develoment is a decision-making process, which includes specific activities: identifying problems to be solved; the need to issue policies, LD goals to be achieved; building the plan; identifying positive and negative impacts of options; selecting the optimal plan and interpreting the policy content into LD.” 2.1.2.2 The contents of LD development activities Firstly, it is policy making In which, the policy making process includes basic activities: problem identification, identification of problem-solving goals, identification of solutions, selection of optimal solutions [50] Secondly, the drafting activities (codifying policy into LD) 2.2 Definition, characteristics and requirements of public participation in building legal documents 2.2.1 Public concept and public participation in building legal documents The public is a broad concept with many meanings and up to now there is no unified understanding and not specified in the legal documents Within the scope of the thesis’s study, The public needs to be involved in identifying what is the nature of the problem to be solved? In order to understand the nature of the problem to be solved, the state agency needs to clearly identify the problem: what is the problem to be solved? What causes problems to be solved? Who is the main entity generating the problem to be solved? * Participate in identifying the need for new policy proposals The identification of the need to promulgate legal documents is very important because each policy issue requires a lot of effort and change State agencies need to ask the public about the following contents: Does the current legal document solve the problem generated? Is it necessary to promulgate a new policy? Why? * Participate in identifying objectives of policy The objective of the policy is the result or value that the state wishes to achieve when promulgating legal documents Therefore, state agencies need to clearly identify issues for the public to participate in building policy objectives in the draft legal document: What is the objective of the policy? Why does the state choose objective for this policy? * Participate in proposing options to resolve policy issues and select policy solutions The solution is the way to solve the problem to achieve objectives of policy [50: p.23] Therefore, public agencies need to identify the contents for public participation including: Are there any options to solve policy issues? Which option is optimal? * Participate in identifying positive and negative impacts of the policy Public participation in identifying the positive or negative impact of a policy on its rights and interests is important in influencing the content of the policy in a draft legal document Therefore, in this content, state agencies need to ask the public questions: how will the upcoming policy affect the lives of the people? What are the public's wishes and aspirations for solving problems in draft legal documents? * Participate in commenting on the legality of the draft legal document The public who is involved in identifying the legality of draft legal documents is to give their opinions on issues such as: form, content of draft legal documents in accordance with the authority of the subject issued? Is the draft legal document content in accordance with the provisions of the current legal documents with higher legal value? Does building legal documents comply with the order and procedures prescribed in laws promulgating legal documents? * Participate in commenting on the reasonableness of the draft legal document Reason is "reasonable, suitable with the logic of things" [39: p.486] The rationality of the draft legal documents is reflected in the conformity of the legal documents with the law of objective advocacy of things, phenomena and processes related to the contents of the draft legal documents under defined conditions and circumstances, while also ensuring the feasibility of the document * Participate in commenting on the language of the draft legal document The contents that need public participation in language include: Is the content of draft legal documents reasonable, scientific? Is the language used in the draft legal document clear, easy to understand or create ambiguity, confusing? 2.3.2 Forms of public participation in building legal documents 10 2.3.2.1 Opinions propose forms of public participation in building legal documents Different forms of participation are to meet the different levels of public participation in building legal documents because ultimately participation is the external manifestation, mechanism, and way for the public to use their right to participate at the proposed levels Therefore, the opinion on proposing the forms of participation is based on the level of public participation in building legal documents Summary of models defining the level of public participation in law-making activities shows that basically the public participating in law-making activities has four basic levels: Information - Consultation - Voting rights Each level of participation corresponds to specific types of participation and the purpose of the state Level of participation Form of Target oriented of State participation To be informed about When the state wants to inform the public activities of building legal Information about the content of the upcoming legal documents document To be consulted about the content of legal documents To be voted when the State consults When the state wants to seek additional information to complete the draft legal document Consultation Social criticism When the government wants to make the process of developing legal documents transparent and ready to receive public comments Referendum When the state desires to get the public's consent on the content of legal documents To be empowered to propose building legal documents Initiative When the state wants to seek policy ideas on building to build legal documents from the public legal documents Table 2.1 The table shows the relationship between the level of participation, the form of participation and the purpose of the State towards public participation in building legal documents 2.3.2.2 Forms of public participation in building legal documents * Information Information is one of the basic forms of participation, the first and the most important premise for the public to participate at higher levels This type of participation provides one-way information flow, from agencies and organizations to the public * Consultation According to the Vietnamese dictionary "Consultation" is to ask or express opinions for reference (often an important issue) [113] Therefore, it is very necessary to understand correctly, thereby moving to the formal mechanism of this form of participation and in which the inner meaning of the form of consultation is determined, 11 including the following contents: Firstly, the state agency has the authority to ask the public to comment on draft legal documents Secondly, the competent state agencies listen and receive public comments Thirdly, competent state agencies explain the receipt or non-acceptance of public comments * Social criticism Social criticism can be realized only when the following three contents are ensured: Firstly, the drafting agency must request the criticism against the draft legal document Secondly, the public prepares content for criticism Thirdly, there is an exchange and debate between competent state agencies and the public to reach a consensus * Referendum In English, referendum is the introduction of a document of the legislature, a proposal to amend the constitution or an important national issue for the entire people to decide in the form of voting In French, referendum (référendum) is a procedure that allows citizens of a country to show their approval or rejection of a measure (solution) offered by state agencies through voting [47] * Initiative on building legal documents The initiative on building legal documents is a form of participation based on the form of the agenda initiative - one of the four forms of direct democracy [102: p.10.11] In this form of participation, the public has the right to propose initiatives to develop legal documents, this is a type of subject rights recognized by law, the competent state agencies have to consider propose initiatives to develop legal documents of citizens to be included in the program of developing legal documents 2.4 Factors affecting public participation in building legal documents 2.4.1 Objective factors * Institutions * Building civil society * Building social networks * Factor of participation culture 2.4.2 Subjective factors * The group of factors belongs to the capacity of state agencies * The group of factors belongs to the capacity of the public Sub-conclusion of Chapter Chapter has addressed the theoretical issues of public participation in building legal documents Explain basic issues of legal documents, activities of developing legal documents, requirements of public participation in building legal documents and the central content of chapter is the proposal of a theoretical framework for public participation with two issues: the content of public participation in building legal documents, answering questions What is the public participation and the form of public participation in building legal documents, answering the question of how the public participates The content of public participation reflects issues in which the public contributes opinions when drafting legal documents From the theory of participation, the public should be involved in all stages of building legal documents, thereby proposing five forms of public participation in writing activities Legal documents include: information - consultation - social criticism - referendum and initiative on building legal 12 documents At the same time, we also study the factors affecting the public participation in building legal documents PARTICIPATION Theory of building rational decision Theory of decisionmaking with participation Form of participation Theory of direct democracy Content of participation Nature of the problem to be solved Objective of solving problem The need to promulgate legal documents Develop and select a plan Positive and negative impacts Legality Reasonability Languages used Information Consultation Social criticism Referendum Initiative on building legal documents Factors affecting - Objective - Subjective Figure 2.2 Diagram showing the theoretical framework for public participation in building legal documents Chapter CURRENT SITUATION OF PUBLIC PARTICIPATION IN BUILDING LEGAL DOCUMENTS IN VIETNAM AT PRESENT 3.1 The current situation of the law stipulates the public participation in building legal documents in Vietnam at present 13 3.1.1 Legal documents regulating public participation in building legal documents 3.1.2 General assessment of legal regulations on public participation in building current legal documents Firstly, current regulations of law still limit the right of public participation in building legal documents Secondly, the current laws are limiting the level of public participation in building the third legal documents, a very important issue that needs to be institutionalized In the context of public participation, the law on the promulgation of legal documents 2015 only stated the general principle "to clearly define each policy in the proposal to ask for comments in accordance with the object to get opinions" for the period of making proposal to build legal documents In the drafting stage, there is no regulation on the content of participation 3.2 Current situation of public participation in building legal documents 3.2.1 Current situation of the number of public participation in building legal documents 3.2.1.1 Number of public participation in building legal documents The survey results of the public participation in building legal documents show that the general situation is that very few people participate in building legal documents although the draft legal documents have a direct impact on the lives of people 3.2.1.2 Survey results of the reasons why public does not participate in building legal documents a) Survey results and assessments of officials and civil servants on the reasons for not participating in building legal documents Figure 3.2: Survey results of the public not participating in building legal documents Unit: % (Source: Survey of author, Sentence 8, Appendix I, II) b, Survey results on people's assessment of the reasons not to participate in building legal documents 14 A similar survey of the reasons for not participating in building legal documents of the population group also showed a similar assessment with the group of officials and civil servants 3.2.2 Current situation of public participation in building content of legal documents 3.2.2.1 Current situation of posting documents of request for elaboration of legal documents on the web portal of the drafting agency 3.2.2.2 The need to identify the content of public participation in building legal documents a) Survey results of officials and civil servants on the need to determine the content of public participation in building legal documents Figure 3.4 Survey results of officials and civil servants on the need to determine the content of public participation in building legal documents Unit: % (Source of survey: Survey of author, Appendix I, Sentence 8) b, Survey results of people on the need to determine the content of public participation in building legal documents The survey results showed that people also assessed the content of the dissertation as "very necessary" and "necessary" at a very high rate 3.2.2.3 The purpose of identifying the content of public participation in building legal documents a, Assessment of officials and civil servants on the need to apply forms of public participation in building legal documents The survey results show that, with six meanings of identifying the content of participation, there are very high selection rates b, People's assessment of the need to apply forms of public participation in building legal documents The survey is similar to the group of people, the rate of assessment of the purpose and significance of identifying the purpose of identifying the content of public participation in building legal documents at "Very true" and "true" are also very high 3.2.2.4 Current situation of public participation in identifying contents of legal documents-making activities a) Current situation of officials and civil servants participating in identifying the contents of building legal documents 15 Figure 3.8 Survey results of the current situation of officials and civil servants involved in identifying the contents of the activity of building legal documents Unit: % (Source: Survey of author, Question 10, Appendix I) b, Current situation of people participating in identifying the contents of building legal documents Figure 3.9 Survey results on the situation of the people involved in identifying the contents of building legal documents Unit: % (Source: Survey of author, Sentence 10, Appendix II) 3.2.3 Situation of the use of public participation in building legal documents 3.2.3.1 Survey results of the need to apply the forms of public participation in building legal documents 16 a, Assessment of officials and civil servants on the need to apply forms of public participation in building legal documents Figure 3.10 Survey results of officials and civil servants about the need to use the forms of Public participation in building legal documents Unit: % (Source: Survey of author, Sentence 11, Appendix I) b, People's assessment of the need to apply forms of public participation in building legal documents On the people's side, the rate of assessment of the need to use the forms of public participation in building legal documents is very high 3.2.3.2 Current situation of using the form of information in the activity of developing legal documents a, Survey results on the level of public access to information about building legal documents through the web portal b, Survey results on how the public access to information on building legal documents * For officials and civil servants, the survey results show that finding information about building legal documents through the information channels specified in the law on promulgation of legal documents The law is very few * For the survey group who are residents, the percentage of people who participate in the "regular" survey of information on the construction of legal documents is also very low, on average (10.1%) 3.2.3.3 Current situation of using public consultation in building legal documents a, Assessment of officials and civil servants on the use of consultation in building legal documents 17 Figure 3.14 Survey results on the status of officials and civil servants using the form of public consultation in building legal documents Unit: % (Source: Survey of author, Sentence 13,14,15, Appendix I) b, Assessment of people on the use of consultation in building legal documents Figure 3.15 Survey results on the current situation of people using public consultation in building legal documents Unit: % (Source: Survey of author, Sentences 13,14,15, Appendix II) 3.2.3.4 Current situation of using social criticism a, Assessment of officials and civil servants on the application of social criticism Regularly Sometimes Being explained to receive critics 17.5 38 Prepare content for review 7.7 30 Recommended to join the review 20 24.8 Seldom 24.5 40 Never 30 22.3 52.2 Figure: 3.16 Survey results on the current situation of officials and civil servants Unit: % (Source: Survey of author, Sentences 16, 17.18, Appendix I) b, People's assessment of the application of social criticism 18 40 20 55 53 60 16 36.2 22.425.4 Regularly 28 20.1 15.3 11.6 11 Sometimes Seldom Recommended Prepare content Being explained to join the review for review to receive critics Never Figure: 3.17 Survey results on the current situation of people using social criticism Unit: % (Source: Survey of author, Sentences 16, 17.18, Appendix II) c, Results of current situation on survey using social criticism * Current situation of using social criticism method of officials and civil servants The Survey results on the current situation of using social criticism show that, among the three methods of organizing social criticism activities, the most commonly used form of social criticism conference * Current situation of using social criticism of people 18.6 Organize direct dialogue 20.8 23.4 23.2 17.4 Send text directly Conference 28 7.8 18 Never 32.6 Seldom 36 Sometimes 74.2 Regularly Figure 3.19 Survey results of the extent to which people use social critical methods Unit: % (Source: Survey of author, Sentences 19, Appendix II) 3.2.3.5 Current situation of using the form of referendum The results of public surveys on the need to apply a referendum in building legal documents show that up to (89.6%) of officials and civil servants rated them as "very necessary" and "necessary" This percentage is even higher for the group of people, with (96.6%) of the respondents assessed that it is necessary to referendum at the "necessary" and "very necessary" level No comments rated "unnecessary" 3.2.3.6 Current situation of using the form of initiative on building legal documents Currently, the law on promulgating legal documents in 2015 has stipulated that in addition to competent subjects such as the National Assembly, the government, the President, the Vietnam Fatherland Front and its member organizations, there are already provisions Specifically on the rights and mechanisms to ensure the right of legislative initiatives of the National Assembly while people as subjects directly affected by legal documents are not regulated 3.2.4 Impact of factors affecting public participation in building legal documents 3.2.4.1 Assessment of officials and civil servants on the impact of factors affecting public participation in building legal documents 19 Very Affect Affect Seldom affect 87.4 77.6 28.6 7.2 3.2 19.4 22 14 2.8 9.2 3.4 5.6 78.4 76.2 71.4 61 Non affect Institutions Participatory The The The capacity culture development of development of of the drafting civil society social networks agency 10.27.2 4.2 Capacity of public participation Figure 3.20 Survey results and assessments of officials and civil servants on factors affecting the public participation in building legal documents Unit: % (Source: Survey of author, Sentence 20, Appendix I) 3.2.4.2 People's assessments on the impact of factors affecting public participation in building legal documents 88 77 Very affect 77.2 72.4 62 affect 46.4 37.2 14.8 8.2 Institutions 16.2 0.2 22.4 11 22.4 4.6 7.4 4.6 17.8 1.2 Participatory The The The capacity of Capacity of culture development of development of the drafting public civil society social networks agency participation seldom affected no affect Figure 3.21 Survey results on people's assessment of factors affecting public participation in building legal documents Unit: % (Source: Survey of author, Question 20, Appendix II) 3.3 General assessment of the current situation of public participation in building legal documents 3.3.1 Positive points Assessing the current situation of public participation in building legal documents from the perspective of content of participation, the actual results show that: Firstly, in terms of the number of people participating in building current legal documents, at a very low level (only from 9.6% to 31.2%) (Figure 3.1), there have been significant changes compared to with similar survey results in the Provincial Governance and Public Administration Index (PAPI) 2015 Secondly, in terms of the participation in building the content of legal documents, survey results on the situation of the public's participation in building the content of legal documents show that the majority of the public are well aware of the need to develop contents for the public to contribute their opinions about contents of draft legal documents Thirdly, in terms of the use of public participation in building legal documents, a positive point in the survey results about the use of public participation in building legal 20 documents is that the public is well aware of the need to increase deeper participation in activities of building legal documents 3.3.2 Limitations Firstly, the number of people participating in building legal documents is very low (from 9.6% to 31.2%) Secondly, the current situation of the public to comment on the contents of the draft legal document, the survey results indicate the fact that the public rarely gives comments on the contents of draft legal documents Third, the application of current forms of participation is not effective 3.3.3 Cause of the current situation Firstly, in terms of institution, the state agencies have been conscious of clearly defining the scope of participation so that the public can easily identify the content of participation However, the above regulations are not sufficient to enforce as well as guide the agencies in charge of drafting legal documents to design a set of criteria on the contents of participation, which are essentially the principles for public participation They have the basis to participate Secondly, it is due to the subjective factor of the agency conducting public consultation Thirdly, from the public's own understanding, the capacity to participate in building legal documents of the public An understanding of the content of the draft determines the opinion Therefore, people feel interested in what content they contribute to that issue, leading to the situation of "fortune teller watching elephant" in comments, reviews and suggestions on the content of draft legal documents ongoing consultation 3.3.4 Assessment of factors affecting public participation in building legal documents 3.3.4.1 The influence of objective factors In general, the objective factors affect the public participation in building legal documents in both positive and negative aspects Besides, these influencing factors have not yet played an active role in promoting participation 3.3.4.2 Influence of subjective factors Subjective factors also have a two-sided effect on public participation On the positive side, the capacity of officials and civil servants, particularly the awareness of officials and civil servants on the meaning and effects of public consultation on state management activities, has also been changed At the same time, officials and civil servants had a more sincere attitude and demand in receiving comments from people Sub-conclusion of Chapter The content of Chapter conducts an assessment of the current situation of public participation in building legal documents in Vietnam The state of public participation is assessed on two basic issues: the content of participation and the form of participation Results of the current situation survey on participation in the content of legal documents-making activities show In terms of the form of public participation in building current legal documents, there are only three forms of information, consultation and social 21 criticism that are regulated and implemented in practice, while the two forms of participation in referendums and initiatives to develop legal documents are: new proposal The results of the current situation survey on the application of both forms of quantitative methods (primary and secondary data surveys), both qualitatively (pvs) show two problems Firstly, the public also thinks that the proposed forms of participation are necessary for the public to have a diverse and effective mechanism of participation Secondly, the current situation with the forms of participation being used as information - consultation - social criticism is not effective Assessing the causes of the current situation, the thesis has pointed out many causes leading to the failure to identify the content of participation, the people did not contribute comments on the content of legal document activities and the current participation methods have not been effective In addition, the survey also examines the impact of factors affecting public participation in building legal documents, thereby assessing the positive and negative impacts of factors affecting efficiency of Public participation in building legal documents Chapter OPINIONS AND SOLUTIONS TO ENSURE THE PUBLIC PARTICIPATION IN BUILDING LEGAL DOCUMENTS IN VIETNAM AT PRESENT 4.1 Opinion ensuring public participation in building legal documents 4.1.1 Ensuring public participation in building legal documents is aimed at promoting democracy, building a true state of the people, by the people and for the people 4.1.2 Ensuring public participation in building legal documents is aimed at building a system of legal documents of quality, validity and efficiency, ensuring feasibility 4.1.3 Ensuring public participation in building legal documents needs to take into account convenience and maximum conditions for people to participate substantially and effectively 4.1.4 Ensuring public participation in building legal documents must be placed in the context of national culture and traditions 4.2 Group of solutions to ensure public participation in building legal documents 4.2.1 Group of solutions to improve institutions on public participation in building legal documents 4.2.1.1 Simultaneous use of mandatory and non-mandatory institutional tools for public participation in building legal documents 4.2.1.2 Supplementing regulations on the process of public participation in building legal documents 4.2.1.3 Supplementing provisions on legal responsibilities to agencies responsible for drafting legal documents in receiving and explaining public comments 4.2.2 Group of solutions to ensure quality of participation in the content of legal documents 22 4.2.2.1 Building a Handbook to guide the content of public participation in building legal documents 4.2.2.2 Supplementing the summary of issues to be commented by the public is a mandatory document in the Request for comment form 4.2.3 Group of solutions to improve the effectiveness of participation forms 4.2.3.1 Using social media to provide information on building legal documents 4.2.3.2 Using intermediary public consultation 4.2.3.3 Expanding the right of social criticism to social organizations (not members of the Vietnam Fatherland Front) 4.2.3.4 Institutionalizing the form of referendum on law-making activities 4.2.3.5 Allowing people to have the right to initiative in building legal documents 4.2.4 Group of solutions to improve the capacity of civil servants and the public 4.2.4.1 Improving accountability of officials and civil servants 4.2.4.2 Improving the capacity of public participation 4.2.5 The group of solutions to build the foundation for public participation in building legal documents 4.2.5.1 Encouraging development of civil society 4.2.5.2 Building a culture of participation 4.3 The relationship between the solutions The above solutions may not cover all necessary contents in ensuring the public participation in building legal documents However, these solutions are necessary to attract participation and ensure effective and effective participation in order to improve the quality of legal documents Each solution has certain advantages and limitations At the same time each solution must be implemented in specific conditions, with specific objects But solutions must be implemented systematically and synchronously, which makes little sense when done individually 4.4 Survey the necessity and feasibility of solutions to ensure public participation in building legal documents 4.4.1 The need for the solution Survey results on the need for solutions to ensure public participation in building legal documents show that, out of the 12 specific solutions proposed, the public are evaluated Very high prices at the "very necessary" and "necessary" levels 4.4.2 The feasibility of solutions to ensure public participation in building legal documents Most of the assessments identified the proposed solutions as feasible, in which the solutions were evaluated by the number of officials and civil servants highly feasible (including feasible and very feasible) Thus, although the assessment of the necessity and feasibility of the solutions is different, but in general, the opinions are all that the above 11 solutions are necessary and feasible in the implementation process Most of the public support the measures to ensure the public participation in building legal documents proposed by the author is required 23 CONCLUSION An overview of the research on public participation in building legal documents shows that there is no basic and in-depth research in Vietnam at present on public participation in building legal documents With the research problem, it aims to set the initial basis for the issue of public participation in building legal documents The thesis has developed and explained the basic issues of participation such as: Firstly, identifying the public audience as organizations and individuals directly affected by the draft legal document Secondly, on what the public participates in building legal documents The thesis has identified eight issues that the public should participate in building legal documents: identifying issues to be solved; causes of problems to be solved; the need to issue policies; policy problem solving goals; problem-solving options and optimal options; Positive and negative impacts of policies; Legality; rationality, feasibility and language used in legal documents Thirdly, on the issue of how the public participates in building legal documents, the thesis has identified forms that the public can use when participating in building legal documents : - 1, information; - 2, consultations; - 3, social criticism; - 4, referendum; - 5, initiative on building legal documents In addition, the thesis also identifies two groups of objective and subjective factors affecting the guarantee of public participation in building legal documents Assessing the current situation of public participation in building legal documents in Vietnam shows the following issues: firstly, identifying the contents for public participation is very necessary and brings a lot of practical meaning in ensuring public participation However, the current situation agencies have not identified the contents for public participation to comment on building legal documents Thus it leads to the fact that the public does not comment on the content to contribute comments but mainly based on individual subjectivity Secondly, with the mentioned forms of participation, the survey results show that the public assesses the need to apply these forms to ensure the real public participation in building legal documents Based on the assessment of the current situation and causes of the public participation in building current legal documents; at the same time, based on the views of the party and the state on ensuring and promoting the public's participation in building legal documents, the thesis has developed solutions to ensure the participation Public participation in building legal documents includes groups of solutions: complete the institution on public participation in building legal documents; ensure quality participation on content; improve the efficiency of public participation forms; capacity building of public officials and the public, and solutions to build the foundation of public participation in building legal documents 24 ... author Dinh Ngoc Quy [88]; The research report on hearings at the Parliamentary Committees and the applicability in Vietnam of the authors Nguyen Duc Lam, Hoang Minh Hieu, John Patterson, Kit Dawnay... processing state management documents by author Nguyen Van Tham [91]; Technique of establishment and regulation of the author Luu Kiem Thanh [90]; Basic knowledge about drafting LD by author Nguyen... seen from a legal perspective, as the process and procedures for issuing documents that get little attention from the perspective of establishment management decision theory Thirdly, the researches