Research to clarify the theoretical basis for inspecting LND issued by provincial authorities. Analyze, evaluate the actual implementation of inspection regime for these documents; identify ongoing problems, thus recommend solutions to improve the inspection regime for LND issued by provincial authorities.
MINISTRY OF EDUCATION AND MINISTRY OF HOME TRAINING AFFAIRS NATIONAL ACADEMY OF PUBLIC ADMINISTRATION TRAN THI THU HUONG THE INSPECTION REGIME FOR LEGAL NORMATIVE DOCUMENTS ISSUED BY PROVINCIAL AUTHORITIES Major: Public administration Code: 62 34 82 01 DOCTORAL THESIS FOR PUBLIC ADMINISTRATION (A SUMMARY) HA NOI – 2019 This thesis has been completed at:……………….……… ………… ……………………………………………………………………… Thesis supervisors: Ha Quang Thanh, Ph.D Nguyen Thi Thuy, Ph.D Examiner 1: …………………………………………………………… ……………………………….…………………………… Examiner 2: …………………………………………………………… ……………………………… …………………………… Examiner 3: …………………………………………………………… ………………………………….………………………… The thesis was be orally defended at the regional Examining Committee Place: Room for defense of Doctoral thesis – Reference room… Building ……, National Academy of Public Administration No 77 - Nguyen Chi Thanh St - Dong Da District - Ha Noi City Time: ………… on …….……… This thesis is available for the purpose of reference at National Library of Vietnam and Library of National Academy of Public Administration ALL PUBLISHED WORKS RELATED TO THE DISSERTATION Tran Thi Thu Huong (2008), Profession of Office Administration, Ho Chi Minh City General Publishing House Tran Thi Thu Huong (2009), The institution of state management in plant protection: Problems and solutions, Lead author of ministerial study, Ministry of Agriculture and Rural Development Tran Thi Thu Huong (Lead author), Pham Thanh Dung, Mang Van Thoi (2011), Techniques of document composition and management, Phuong Dong Publishing House, Ho Chi Minh City Tran Thi Thu Huong (2011), “Strengthen the inspection of state administrative documents nowadays”, State Management Review (189), pp 29 - 31 Tran Thi Thu Huong (2014), Essay: “New policies in Circular No 07/2012/TT-BNV dated Nov 22nd, 2012 issued by Ministry of Home Affairs regarding document composition, management, circulation, archiving and storage at the office”, Seminar of Document and Administrative Technology – National Academy of Public Administration – Ho Chi Minh City campus Tran Thi Thu Huong (Lead author), Pham Thanh Dung, Mang Van Thoi (2014), Techniques of document composition and management, Second edition, Phuong Dong Publishing House, Ho Chi Minh City Tran Thi Thu Huong (2015), “The inspection of legal normative documents: Situation and solutions”, State Management Review (231), pp 55-58 Tran Thi Thu Huong (2015), “Continuous improvement of the legal system in our country”, Journal of Home Affairs Studies (7), pp 5-8,13 Tran Thi Thu Huong (2016), “New features of inspecting legal normative documents issued by local authorities”, Published journal by College of Management for Agriculture and Rural Development II, No.3 in 2016 10 Tran Thi Thu Huong (2017), “Improving the capability of Human resources of implementing the inspection regime for legal normative documents issued by provincial authorities”, Published journal by College of Management for Agriculture and Rural Development II, No.2 in 2017 11 Tran Thi Thu Huong (2018), “Improving the inspection regime for legal normative documents issued by provincial authorities”, Published journal by College of Management for Agriculture and Rural Development II, No.2 in 2018 INTRODUCTION Rationale In order to perform their functions, duties, and authority of the state management in society; the state administration bodies carry out many different executive activities which are displayed on the surface through specific forms One of the forms displaying the Jurisdiction of state administration is published documents To guarantee the quality of published documents, the documents have to be thoroughly inspected Therefore, an inspection regime must be established, especially for the legal normative documents (hereinafter referred to as LND) As per the regulation in Resolution No 51/2001/QH10 dated Dec 25th, 2001 by Standing Committee of the National Assembly, inspecting LND is a duty transferred from The Supreme People’s Procuracy to the system of state administrative agencies The Government assigned the Ministry of Justice in particular to carry out this duty Based on this, the Government issued Decree No 40/2010/ND-CP dated April 12th, 2010 on regulations for inspecting and processing LND Currently, the main and direct legal basis for the authorities to perform the inspection of LND are the 2015 Law on Promulgation of legislative documents, and Decree No 34/2016/ND-CP (dated May 14th, 2016 and effective on July 1st, 2016) by the Government on detailing articles and measures of implementing the aforementioned 2015 Law Despite achieving such important results, there still exist many limitations of inspecting LND The reason is that, regardless of the abovementioned Law and Decree, the inspection regime for LND is incomplete Up to now, no comprehensive inspection regime for documents in general and documents issued by provincial authorities in particular have been established for the inspection to produce meaningful results careless mistakes in the process, and contribute to improve the quality and effectiveness in the promulgation of LND in general CONCLUSION OF CHAPTER From studying the legal frameworks, conduct a survey to examine the actual state of implementing the inspection regime for LND issued by provincial authorities in a few selected provinces, and then recommend inclusive, scientific, objective and practical solutions to improve the self inspection regime of LND issued by provincial authorities GENERAL CONCLUSION By incorporating many research methods to analyze and evaluate the current inspection regime for LND issued by provincial authorities in our country, the thesis has fulfilled the study purpose with results such as: First, study the theoretical and scientific basis for the inspection regime for LND issued by provincial authorities; Secondly, organize and analyze current legal policies of the inspection regime for LND issued by provincial authorities; Thirdly, analyze and review the actual state of implementing the inspection regime for LND issued by provincial authorities; Fourthly, propose comprehensive solutions to improve the inspection regime for LND issued by provincial authorities The aforementioned solutions, if implemented as concerted actions in practice, will produce positive results from inspecting and processing documents; thus contribute to “cleanse” the LND as well as the legal system in the pursuit of social sustainable development and building a socialist state ruled by law of the people, by the people, and for the people./ 28 between the agencies in charge of inspecting and processing documents with agencies of mass media 4.2.3 Improving the capability of staffs in charge of implementing the inspection regime for legal normative documents: First, Department of Justice should pay attention to building an inspection organization of staffs with focus on good professional qualifications and moral values Secondly, improve the implementation mechanism to establish legal titles Thirdly, offer training courses to help improve the capability and skills of staffs in charge of inspecting LND Fourthly, build an assisting team for inspecting LND issued by provincial authorities Fifthly, develop the regulations and methods for the society to participate in the inspection process Sixthly, inspect, examine, and penalize the administration agencies responsible for implementing the inspection regime for LND 4.2.4 Guaranteeing the requirements for implementing the inspection regime for legal normative documents: First, develop and improve the database system used in inspecting LND Secondly, ensure the budget for inspecting LND Thirdly, regulate and ensure the minimum requirements for inspecting LND in practice 4.2.5 Improving the methods and standardizing the procedure of inspecting legal normative documents: Following the solutions to let the Offices of People’s Council and People’s Committee self inspect LND issued by provincial authorities, the procedure of the self inspection shall be implemented in this order: The proposed draft of LND must be posted for 05 days on the information portal of the provincial People’s Committee so that competent agencies and people, especially the experts, can contribute to the proposed daft to ensure the practicality of the published documents Regulations for the procedure of inspecting and processing LND should be promulgated by Department of Justice to reduce the With this meaning and significance, the studying of improving inspection regime for LND is a current issue and requirement demanded by today’s reality; as well as helps to improve the strength and minimize the weakness of the inspection process This is also the reason why I choose to research on: “The inspection regime for legal normative documents issued by provincial authorities” for my doctoral thesis Aims and Objectives of study 2.1 Aims of study: Research to clarify the theoretical basis for inspecting LND issued by provincial authorities Analyze, evaluate the actual implementation of inspection regime for these documents; identify ongoing problems, thus recommend solutions to improve the inspection regime for LND issued by provincial authorities 2.2 Objectives of study: Summarize the literature review related to the thesis topic so as to highlight the questions that this thesis derives from and needs to clarify in its research contents; Discuss, clarify, and codify to illuminate the theoretical basis for inspecting LND issued by provincial authorities in Vietnam; Research the theoretical and scientific framework for inspecting LND; Analyze, evaluate how the inspection regime for LND issued by provincial authorities is implemented in practice, indicate the strengths, limitations, and their excuses; Propose solutions to improve the inspection regime for LND issued by provincial authorities Subject and Scope of study 3.1 Subject of study: The inspection regime for legal normative documents issued by provincial authorities 3.2 Scope of study: From the perspective of state administration, the study was conducted to examine the inspection regime for LND issued by provincial authorities since the effective date of Decree No 40/2010/ND-CP (issued on April 12th, 2010 by the Government) on 27 regulations for inspecting and processing LND From 2014 to 2015, research data were collected under the form of survey with 275 respondents in a limited number of provinces However, the study was being conducted in a transition period when the 2015 Law on Promulgation of legislative documents and Decree No 34/2016/NDCP (effective on July 1st, 2016) were issued Therefore, for the study to be updated, the researcher did another survey in 2018 with 96 respondents in a small number of Central and Southern provinces Methodology and Research methods 4.1 Methodology: The thesis is based on the rationalization and methodology of dialectical and historical materialism from Marxist– Leninist theory; as well as utilizes our Party and Government’s viewpoints and institutions on building a socialist state ruled by law The methodology of dialectical materialism is the main approach throughout the thesis The subject matters of the study (such as LND, the inspection regime for LND, and local authorities) are examined with the focus on mutual interactions in an overall picture with regards to economic-social conditions, request and purpose of state management 4.2 Research methods: For the study, I employ these scientific methods to investigate the research matters: Approaching method, Summary method for practical results, Analysis method, Compilation method, Contrasting method, Expert method, Statistical and survey methods in social research All of these methods are incorporated in the study to guarantee both the generic and specific quality of the research, with the goal of providing a comprehensive evaluation of the inspection regime for LND issued by provincial authorities Scientific hypothesis and Research questions 5.1 Research questions - How is the inspection regime for LND issued by provincial authorities interpreted? Why should the inspection regime for LND 4.2.1 Improving the inspection regime for legal normative documents”: First, improve and unify the institutional policies; improve the legal basis for the authority of inspecting and processing documents; improve the legal institutions regarding inspection subjects, contents, procedures, and the compensation responsibility for the physical and mental damage to persons or organizations caused by unlawful LND; promulgate a standard procedure of inspecting LND Secondly, Department of Justice should help the Government with advices on promulgation of recruitment standards for staffs with legal background to be in charge of inspecting LND Thirdly, promulgate detailed regulations regarding responsibilities of the competent agencies and people who refused to handle the unlawful LND or failed to handle them in compliance with the law Fourthly, Department of Justice should help the Government with advices on promulgation of budget management for inspecting and processing documents; replacing the Joint Circular No 122/2011/TTLT-BTC-BTP dated August 17th, 2011 on the estimation, management, use and finalization of expenses for inspection, handling, revision and systemization of LND; to guarantee the consistency with Decree No 34/2016/ND-CP and updates with reality, create favorable conditions for inspecting and processing documents 4.2.2 Improving the organizations in charge of implementing the inspection regime for legal normative documents: First, consolidate organizations and staffs for inspecting LND in a timely manner Join the Delegation of the National Assembly with the Offices of People’s Council and People’s Committee Secondly, improve the coordination mechanism among competent subjects in charge of inspecting LND Thirdly, develop a collaborative relationship between the inspection agencies and the promulgation agencies of LND Fourthly, effectively utilize the relationship 26 there are many limitations beside the positive results: the mechanism and regime of document inspection are not consistent and still lacking; organizations of inspection are incomplete; there is a shortage of staffs in charge, and they lack professional qualifications and inspection skills; no comprehensive penalty policies for subjects in charge of issuing unlawful documents; requirements for inspecting documents are not fulfilled All of these factors were considered in the surveys before and after the effective date of the 2015 Law, so that the study could provide a general outlook of the transition period From this, solutions to improve the inspection regime for LND issued by provincial authorities would be suggested in the next chapter CHAPTER DIRECTION AND SOLUTIONS TO IMPROVE THE INSPECTION REGIME FOR LEGAL NORMATIVE DOCUMENTS ISSUED BY PROVINCIAL AUTHORITIES 4.1 Directions to improve the inspection regime for legal normative documents issued by provincial authorities Improving the inspection regime for documents is guaranteeing to follow these directions: First, firmly and thoroughly understand and institutionalize strategies and policies of Communist Party and the State in local administration; Secondly, improve the inspection regime for LND issued by provincial authorities; Thirdly, ensure the objective and scientific approach in implementing the inspection regime for LND; Fourthly, improving the inspection regime for LND includes guaranteeing the participation of all agencies, units and individuals in compliance with the law; Fifthly, the inspection regime must lead to action Sixthly, the inspection regime for LND must connect to institution on building a socialist state ruled by law 4.2 Solutions to improve the inspection regime for legal normative documents issued by provincial authorities be created and implemented? What is included in the inspection regime for LND issued by provincial authorities? - What is the position of inspection regime for LND issued by provincial authorities in the general regime of state management? What are the factors impacting the inspection regime for LND issued by provincial authorities? - How the inspection regime for LND issued by provincial authorities is implemented in practice? What are the results, limitations, and their causes? - How can the inspection regime for LND issued by provincial authorities be improved? 5.2 Scientific hypothesis: The study is based on the hypothesis that so far the inspection regime for LND issued by provincial authorities has not been properly implemented in many aspects, such as: the administrative agencies in charge of it, the methods and process of implementing it, the requirements for it, and the ineffective results from implementing it The inspection regime for LND issued by provincial authorities plays an important role as a stage of state management If the regime was improved and refined, inspecting LND by provincial and municipal authorities in Vietnam would be much more effective, thus contribute to complete the legal system in the pursuit of building a socialist state ruled by law Scientific significance and Practical value of study 6.1 Contributions of study Inspecting documents is not a new issue, but inspecting LND issued by provincial authorities demands better and more systemic regulations, which is the new angle the study focuses on The regulations mention that inspecting documents is a form of displaying the Jurisdiction of state administration However, these regulations are scattered among many articles of law, whereas they 25 should have been compiled as a whole Further, the steps and forms of implementing LND are not clearly determined As a result, from the perspective of state management and the doctoral thesis outlook of public state administration, evaluating theoretical and legal basis of the inspection regime for LND can help to organize and categorize these steps; which is also a new aspect of the thesis The third new aspect of the thesis is that the solutions advised by the thesis are all accompanied by new proposals for each solution on the meaning, implementing terms and conditions; which will guarantee the practicality of these solutions 6.2 Scientific significance and Practical value The study findings contribute to improve the cognitive theory on the inspection regime for LND issued by provincial authorities The thesis conclusion and recommendations are drawn from the research results supported by theory and reality Therefore, this thesis is a source of reference material for the policy makers and researchers to consider, and can be applied to various authorities in creating and implementing the inspection regime for LND This thesis can also serve as research, teaching and study material Organization of study: Beside Introduction, Conclusion, and Bibliography, the thesis includes chapters in this order: Chapter Literature review on the inspection regime for LND issued by provincial authorities; Chapter Scientific basis of the inspection regime for LND issued by provincial authorities; Chapter The actual state of implementing the inspection regime for LND issued by provincial authorities; Chapter Direction and solutions to improve the inspection regime for LND issued by provincial authorities CHAPTER LITERATURE REVIEW 1.1 Foreign and domestic studies and publications related to the thesis topic 3.2 General review of implementing the inspection regime for legal normative documents issued by provincial authorities 3.2.1 Strengths 3.2.1.1 Creating the inspection regime for legal normative documents: Based on LND promulgated by state agencies, local authorities have these documents localized in accordance with their features and situations 3.2.1.2 Implementing the inspection regime for legal normative documents: Organizing the units and staffs for inspecting documents, ensuring requirements are met for successfully inspecting and sending LND for inspection 3.2.2 Limitations and causes 3.2.2.1 Creating the inspection regime for legal normative documents: First, guidelines for inspecting and processing documents issued by local authorities are not promulgated in a detailed and timely manner Secondly, there are no regulations regarding the recruitment standards for staff with legal background to be in charge of inspecting LND Thirdly, there are no detailed regulations for dealing with the agencies and people in charge who are responsible for composing, signing on and promulgating unlawful documents Fourthly, there are obstacles and difficulties in regulating budget management for inspecting and processing LND Fifthly, the mechanism of inspecting LND does not include regulations on a standard procedure for inspecting LND 3.2.2.2 Implementing the inspection regime for legal normative documents: The regime is incomplete, lacking the organization of inspection staffs The staffs’ capability does not meet the standards and requirements for the inspection regime are not fulfilled CONCLUSION OF CHAPTER The conclusion from studying the actual state of implementing the inspection regime for LND issued by provincial authorities is that 24 Regime implementation skills: Training courses mostly concentrate on new legal policies and professional knowledge There is no training course for regime implementation skills such as: coordination skills, teamwork skills, conflict resolution skills in the process of inspecting and handling documents; so that the staffs in charge can improve the implementation of the inspection regime for LND in practice The coordination among subjects in charge of inspecting legal normative documents: In practice, there is not a lot of emphasis on the coordination mechanism between Board of Legal Affairs, Department of Justice and other Departments and Divisions in inspecting and processing LND As a consequence, the effectiveness of document inspection is limited 3.1.3 Methods and procedure of inspecting legal normative documents 3.1.3.1 The result of inspecting and processing legal normative documents: Actual collected data confirm that a high number of unlawful LND were detected Nevertheless, there is no focus on how to deal with the competent agencies, people in charge or advisors who were responsible for the composition of unlawful LND, or who detected the unlawful LND but failed to handle the cases or mishandled them 3.1.3.2 The procedure of inspecting legal normative documents: In practice, the procedure of inspecting LND has not been promulgated in a cohesive and detailed format by any state agencies For that reason, local authorities studied and issued the procedure of document inspection on their own 3.1.4 Requirements for inspecting legal normative documents Evaluating the actual state of fulfilling the requirements for inspecting LND, including: budget, database system for inspecting and processing documents; facilities and equipment 1.1.1 Foreign studies: In addition to studies on the inspection regime for LND issued by provincial authorities in Vietnam, I also searched for foreign documentation on the same subject for reference Nevertheless, there is almost no research paper on the inspection regime for LND issued by provincial authorities that is equivalent to Vietnam within the foreign publications that I had the chance to review Consequently, it is plausible to say that the inspection regime for LND issued by provincial authorities is exclusive to Vietnam 1.1.2 Domestic studies: Other than law and regulations for inspecting LND, nowadays there are many social studies and publications related to this topic Specifically, I categorize those material into these subjects: Studies on local authorities, Studies on LND, Studies on the inspection process and regime; and into these types: monographs, social research projects, journal articles, and dissertations 1.2 Review of studies and publications related to the thesis topic After reviewing other studies, my observation is as below: First, other abovementioned books, research projects, and dissertations discussed and studied in depth regarding theory, inspection and processing of LND, etc However, they haven’t mentioned the topic of the inspection regime for LND, which will be the theoretical center of the thesis Secondly, further as their research studies have touched on these topics, there still exist many unclear issues: the role of provincial authorities in inspecting LND, the inspection regime for LND issued by provincial authorities, the factors affecting the inspection of LND issued by provincial authorities Despite the well-discussed theory structure of documents from the aforementioned works, these three issues need to be clarified in view of scientific and legal basis This is 23 the background for the theoretical chapter that the thesis will focus on later Thirdly, since there is no theoretical reference to the inspection regime for LND, there is also no practical evaluation of these particular matters: the lack of codification for legal basis of inspecting documents; the lack of evaluation of provincial authorities’ implementation of inspection regime for LND to identify the strengths, limits and their causes; other proposed solutions to improve published documents but not the inspection regime for LND Fourthly, most of other research studies put the emphasis on the theory and reality of state agencies or local authorities in general There is no comprehensive research paper on the inspection regime for LND issued by provincial authorities These observations are the focal points of my thesis After reviewing other aforementioned works, I can affirm the topic that I choose for my doctoral thesis does not overlap with other published research papers 1.3 Main problems to be solved in the study This thesis puts the focus on solving these particular research problems: First, the definition, nature, necessity and requirement for creating and implementing the inspection regime for LND issued by provincial authorities; Secondly, regarding the institutions of the inspection regime for LND issued by provincial authorities, organizing and analyzing the current legal policies of the inspection regime for LND issued by provincial authorities; Thirdly, regarding the inspection agencies, including the structure of organization and implementation team, the coordination between agencies in charge of inspecting LND issued by provincial authorities in order to identify the strengths and limitations of this process and also their causes; Fourthly, the implementing methods and requirements of the inspection regime for LND issued by provincial authorities; Fifthly, Order, procedure, display format and technique 177 64,36 Effect 153 55,64 Source: Survey data collected in 2014-2015 The table 3.4 shows that 200 out of 275 respondents (72.73% in total) considered the legal basis of published documents; 201 out of 275 respondents (73.09% in total) reviewed the competence to promulgate documents; 196 out of 275 respondents (71.27% in total) considered if the document contents conform to the laws or not; 177 out of 275 respondents (64.36% in total) reviewed the order, procedure, display format and technique of documents; 153 out of 275 respondents (55.64% in total) reviewed the effect of documents The table 3.6 shows that 61 out of 96 respondents (63.54% in total) considered the legal basis of published documents; 56 out of 96 respondents (58.33% in total) reviewed the competence to romulgate documents; 73 out of 96 respondents (76.04% in total) considered if the document contents conform to the laws or not; 56 out of 96 respondents (58.33% in total) reviewed the order, procedure, display format and technique of documents; out of 96 respondents (2.08% in total) reviewed the effect of documents Table 3.6 The amount and ratio of requirements staffs reviewed when inspecting legal normative documents Unit: % Inspection requirements Amount Ratio Legal basis 61 63.54 Competence to promulgate documents 56 58.33 Document content conform to the laws 73 76.04 Order, procedure, display format and technique 56 58.33 Effect 2,08 Source: Survey data collected in 2018 Two tables above confirm that the inspection staffs have a fairly good knowledge of requirements for document inspection, including elements such as document legitimacy and reasonability 22 total), and only 23 staffs majored in Public Administration (23.96% in total) out of 96 respondents Table 3.2 The amount and ratio of staffs in charge of inspecting LND with their professional majors after 2015 Law Unit: % Workplace Professional major Law Public Other Administration Amount Ratio Amount Ratio Amount Ratio People’s Council People’s Committee Department / Division Other Total recommending some solutions to improve the inspection regime for LND issued by provincial authorities Total Ratio 10,8 13,8 8,5 20,4 26,2 10 13,7 23 63,4 15 44,6 23 67,5 61 5,4 26 27,08 8,33 14 14,58 63,54 15,4 10,3 13 13,54 23 23,96 47 48,96 96 100 Source: Survey data collected in 2018 In summary, from the survey data, only 50% of staffs in charge of document inspection in provincial People’s Councils and People’s Committees have Legal and Public Administration qualifications However, it also demonstrates that the focus on professional qualifications of the inspection staffs has been emphasized more than before The capability of the subjects in charge of inspecting legal normative documents: Table 3.4 The amount and ratio of requirements staffs reviewed when inspecting legal normative documents Unit: % Inspection requirements Amount Ratio Legal basis 200 72,73 Competence to promulgate documents 201 73,09 Document content conform to the laws 196 71,27 21 CONCLUSION OF CHAPTER In other social studies, many authors have discussed different aspects of inspecting LND Nonetheless, their discussion only included some specific aspects, not fully and thoroughly every aspects of inspecting LND, especially the inspection regime for LND issued by provincial authorities For that reason, a systemic and comprehensive study of the inspection regime for LND issued by provincial authorities is a current requirement Comparing with other studies, the thesis “The inspection regime for legal normative documents issued by provincial authorities” fully utilizes the perspective of state administration Furthermore, the thesis provides an evaluation of how the inspection regime for LND issued by provincial authorities is implemented in practice; from which the strengths and limitations of this process can be highlighted, and solutions which not overlap with other studies can be suggested to improve it CHAPTER SCIENTIFIC BASIS OF THE INSPECTION REGIME FOR LEGAL NORMATIVE DOCUMENTS ISSUED BY PROVINCIAL AUTHORITIES 2.1 Provincial authorities and legal normative documents issued by provincial authorities 2.1.1 Provincial authorities In our country, the term “local authority” is commonly used in daily life, science, politics, law studies, studies of public administration, in many of the Party’s publications, as well as the state legal documents Our Constitution and national legislation defined two agencies as local authorities, including People’s Council 10 as the state power body and People’s Committee as the state administration body The 2013 Constitution and 2015 Law on Local Government Organization defined local government as People’s Council and People’s Committee which are operating at certain administrative levels in the Socialist Republic of Vietnam For that reason, the provincial authorities include People’s Councils and People’s Committees of provinces and municipalities 2.1.2 Legal normative documents issued by provincial authorities Definition of legal normative documents: In state management, the administrative subject needs to solve many particular problems, hence also needs to make up administrative decisions Generally speaking, an administrative decision is a solution selected to solve a problem (or a collection of problems) in administration Administrative decisions take the form of published documents, including normative decisions and non-normative decisions The 2015 Law separated the definitions of LND and legal norms as: “LND are documents consisting of legal norms, promulgated by a competent state agency in appropriate forms, orders and procedures as defined in this Law”; while “Legal norm means a general rule of conduct, commonly binding on and applied repeatedly to agencies, organizations and individuals nationwide or within a certain administrative unit, promulgated by a competent state agency or person defined in this Law, and the implementation of which is guaranteed by the State.” Definition of legal normative documents issued by provincial authorities: “LND issued by a provincial-level People’s Council or People’s Committee are documents consisting of a general rule of conduct, commonly binding on and applied repeatedly to agencies, organizations and individuals within a provincial-level unit, promulgated by People’s Council or People’s Committee in 11 To sum up, organizations in charge of document inspection have been founded However, the names of this specialized unit are not consistent among the provinces 3.1.2.2 Personnel in charge of implementing the inspection regime for legal normative documents: Professional qualification of people in charge of inspecting legal normative documents: The period before the 2015 Law went into effect: Table 3.1 The amount and ratio of staffs in charge of inspecting LND with their professional majors before 2015 Law Unit: % Workplace People’s Council People’s Committee Department / Division Other Total Professional major Public Other Administration Amount Ratio Amount Ratio Amount Ratio Law Total Ratio 10 10,8 13,8 10 8,5 29 10,55 19 20,4 17 26,2 16 13,7 52 18,91 59 63,4 29 44,6 79 67,5 167 60,7 93 5,4 10 15,4 12 10,3 27 9,82 33,82 65 23,63 117 42,54 275 100 Source: Survey data collected in 2014-2015 The collected data show that 93 staffs majored in Law (33.82% in total), and only 65 staffs majored in Public Administration (23.64% in total) out of 275 respondents in the survey for staffs in charge of inspecting LND The period after the 2015 Law went into effect: From the survey results in the above table regarding the professional majors of staffs in charge of inspecting LND, 26 staffs majored in Law (27.08% in 20 The period before the 2015 Law went into effect: Based on the government documents, provincial authorities promulgated regulations for inspecting and processing documents, regulations for assisting teams of document inspection, regulations on required budget for document inspection as the foundation for self-inspection of LND in their locality The period after the 2015 Law went into effect: Based on the government documents, 100% of provinces promulgated detailed documents on the order and procedure of inspecting and processing LND; the organization of staffs, budgets and other requirements for carrying out the inspection in their locality 3.1.1.3 The consistency of current legal system: For the inspection regime for LND to be well-implemented, the key role is a consistent and cohesive legal system to guarantee the efficiency of the inspection regime for LND 3.1.2 Subjects in charge of implementing the inspection regime for legal normative documents 3.1.2.1 Organizations in charge of implementing the inspection regime for legal normative documents: Up to now, 51 out of 63 provincial Departments of Justice have set up a Department of Legal document inspection, or Department of Legal document inspection and compliance, or Department of Legal document formulation and inspection About to staffs with professional qualifications were assigned to this department to help the Chairman of provincial People’ Committee with the document inspection process in compliance with their competence in provinces such as: Ha Noi, Vinh Phuc, Hai Duong, Thai Binh, Nghe An, Thua Thien Hue, Dak Lak, Khanh Hoa, etc Other provinces delegated the inspection task to their Department of Legal Documents, for example: Da Nang, Quang Ngai, Binh Dinh, Gia Lai, An Giang, etc appropriate forms, orders and procedures as defined in Law on Promulgation of legislative documents, and the implementation of which is guaranteed by the State.” The definition of LND fully includes elements such as: the promulgator, order and procedures, document content of general rules of conduct, and the mechanism to guarantee the implementation Forms of LND issued by provincial authorities: The 2015 Law defined the forms of LND issued by provincial People’s Councils and People’s Committees as: “Resolutions of People’s Councils of provinces and municipalities; Decisions of provincial-level People’s Committees.” 2.2 The inspection regime for legal normative documents issued by provincial authorities 2.2.1 Inspecting legal normative documents, the inspection regime for legal normative documents issued by provincial authorities 2.2.1.1 Definition of inspecting, inspecting legal normative documents From many viewpoints of inspection, a definition of inspection can be summarized as: “Inspection is the process of evaluating the practical results and contrasting with the standards in an attempt to find out the deviations and their cause, which helps to provide solutions to correct them on time and guarantee the original principle.” On the topic of inspecting LND, at present there are many terms related to inspection that require us to consider and compare: supervise, investigate, review, appraise, verify Inspecting LND can be interpreted as: “The act of considering and evaluating the document form, content, and authority; in order to determine the constitutionality, legality, and consistency of the 19 12 inspected LND; as well as detect unlawful content, and timely suspend, modify, nullify a part or all of the unlawful document.” 2.2.1.2 The inspection regime, the inspection regime for legal normative documents The inspection regime is: “a structure of regulations, institutions, and working methods which serves as references and ensures the operation of administrative authorities to be effective and comply with the Constitution and the law.” Within the scope of the study, the inspection regime for LND can be interpreted from the definition of inspection and the above analysis of inspecting LND as: “the summary and classification of regulations, institutions, organizations, content, and working methods defined by the law; which serve as references for the administrative subject to evaluate and determine the constitutionality, legality, and consistency of published LND, as well as handle the unlawful ones.” 2.2.1.3 The inspection regime for legal normative documents issued by provincial authorities From the above definition of inspection regime for LND, the inspection regime for LND issued by provincial authorities can be interpreted as: “the summary and classification of contributing elements such as institutions, subjects, requirements, and working methods of factors defined by the law; which serve as references for the administrative subject to evaluate and determine the document constitutionality, legality, and consistency with Resolutions by People’s Councils and Decisions by People’s Committees of provinces and municipalities, as well as detect and handle the unlawful documents.” The general definition of the inspection regime for LND issued by provincial authorities consists of the following meaning: First, the connotation of this regime guarantees the principle of inspecting and 40/2010/ND-CP as the base for inspection, no comprehensive inspection regime for LND issued by provincial authorities has been established yet for the inspection to produce practical and positive results Consequently, studying theoretical and scientific basis of the inspection regime for LND; organizing and analyzing current law of the self-inspection regime for LND suggest the theoretical framework for analyzing and evaluating the regime implementation in practice, hence providing solutions to improve the inspection regime for LND issued by provincial authorities in the upcoming chapter of this thesis 13 18 CHAPTER THE ACTUAL STATE OF IMPLEMENTING THE INSPECTION REGIME FOR LEGAL NORMATIVE DOCUMENTS ISSUED BY PROVINCIAL AUTHORITIES 3.1 The actual state of implementing the inspection regime for legal normative documents issued by provincial authorities 3.1.1 Institution of inspecting legal normative documents 3.1.1.1 Government documents The period before the 2015 Law on Promulgation of legislative documents went into effect: Legal policies of inspecting and processing LND have been a concern for a long time, ever since the first Constitution of Democratic Republic of Vietnam in 1946 to the 1992 Constitution and the latest 2013 Constitution; all of which are the foundation to promulgate Law on Promulgation of legislative documents in 1996, 2001, 2008 and many other minor sources of law The period after the 2015 Law went into effect: The thesis was being conducted in the transition period when the 2015 Law and Decree No 34/2015/ND-CP went into effect on July 1st, 2015 As a result, it inherited with updates from new policies in Decree No 34 3.1.1.2 Documents issued by provincial authorities Beside the factors of institutions, organization of agencies in charge, and requirements for the inspection regime for LND; the factors of inspection methods and procedure must be noticed in the process of inspecting LND 2.2.4.4 Requirements for implementing the inspection regime for legal normative documents Beside the factors of institutions, organization of agencies in charge, there are other requirements for the inspection regime for LND, including the budget, the condition of facilities – equipment, and the database system so that the process of inspecting LND can be effectively implemented 2.3 Factors affecting the inspection regime for legal normative documents issued by provincial authorities 2.3.1 Objective factors: The consistency of current legal system, the relation among elements of the inspection regime for documents 2.3.2 Subjective factors: The competence of subjects in charge of inspecting documents, the coordination among them, the discipline of overseeing results of inspection LND 2.4 The experience of other countries in creating and implementing the inspection of LND issued by provincial authorities After reviewing the experience of some countries such as China, Russia, France; the author of this thesis drew some lessons that can be applied in Vietnam: standardizing the regulations for creating and implementing the inspection regime; creating a structure of document inspection; improving the penalty policy for unlawful documents, as well as openly penalizing the agencies and individuals at fault CONCLUSION OF CHAPTER The system of LND regarding the inspection of LND is the legal basis for effective implementing the inspection regime for LND As mentioned above, regardless of the 2008 Law and Decree no handling unlawful documents; Secondly, the content of this regime include the complete contributing elements such as: institutions, subjects, working methods, and requirements of factors defined by the law; which serve as references to evaluate and determine the constitutionality, legality, consistency and coordination of LND issued by provincial-level People’s Councils and People’s Committees; Thirdly, this regime highlights the operating methods in compliance with the law, and ensures that the state agencies perform their functions, duties, and authority in an effective way under the inspection and supervision of other competent agencies and the people; Fourthly, the inspection regime for LND was closely implemented by subjects which are competent state agencies and individuals defined in the law Regarding the authority of provincial agencies in implementing the inspection regime for LND: The thesis only discusses the provincial-level People’s Councils and People’s Committees’ self inspection of their own published documents in the scope of the study: “People’s Councils and People’s Committees have the obligation to self inspect their own published documents, etc When they detect any sign of unlawfulness in their own published documents, they have the obligation to nullify a part or all of those documents.” [Bibliography 16, 19, 61] 2.2.2 The urgency of creating and implementing the inspection regime for legal normative documents issued by provincial authorities In state management, local authorities must perform their functions through promulgation of LND to regulate the relations developing in every aspect of local social life It is crucial to create and implement the inspection regime for LND, so that provincial authorities can create a system of LND with guaranteed constitutionality, legality, consistency and in compliance 17 14 with the current legal framework 2.2.3 Requirements for creating and implementing the inspection regime for legal normative documents 2.2.3.1 Requirements for creating the inspection regime for legal normative documents: No 1, ensure that there are sufficient legal policies of inspecting LND issued by provincial authorities; No 2, regulate the social relations developing in the process of inspecting LND, and guarantee the practicality of those documents; No 3, ensure the inspection regime for LND to be comprehensive, consistent, straightforward, and easy to understand and implement; as well as the right of individuals and organizations to report and summit proposals for the regime; No 4, guarantee the coordination between the inspection regime for LND issued by provincial authorities and the local conditions and resources 2.2.3.2 Requirements for implementing the inspection regime for legal normative documents: No 1, the regime requests officers and staffs of competent state agencies to frequently and timely inspect LND; No 2, ensure the implementation of the inspection regime for LND to be objective in compliance with the law; No 3, ensure to handle the documents consisting errors in a timely and thorough manner; No 4, ensure the inspection regime for LND to be interconnected, updated and accurate with close cooperation among agencies who involve in inspecting documents; No 5, the inspection regime for LND must protect the public interests 2.2.4 Contents of the inspection regime for legal normative documents issued by provincial authorities 2.2.4.1 Institutions of the inspection regime for legal normative documents: The most important institution for making the regulations on inspecting LND in details is the Constitution With regards to particularizing principles stipulated by the Constitution, state agencies have the authority to promulgate LND of inspecting LND Legal policies of inspecting LND, including LND issued by local authorities are defined in Law on Local Government Organization, Law on Promulgation of legislative documents; the state Decree, instruction circulars and joint circulars on inspecting and processing LND; documents on inspecting LND promulgated by competent provincial People’s Councils and People’s Committees in their locality as defined in the law and other related documents 2.2.4.2 Subject in charge of implementing the inspection regime for legal normative documents Organization of agencies in charge of document inspection: The subject in charge of self-inspecting LND issued by provincial authorities are Director of Legal and Compliance Department under People’s Council and Director of Department of Justice; who are also leading provincial People’s Council and People’s Committee in selfinspecting their own documents Depending on the functions, duties, quantity, nature and characteristics of their local management; Chairman of People’s Committee is obligated to arrange an appropriate organization (department, division, group or specialist) and personnel to perform the task of inspecting LND Inspection team: including public servants and officers in charge of document inspection, and an assisting team of document inspection The people in charge of legal and compliance work must be guaranteed to meet the proper qualifications Besides, it is important for the inspection team to complete professional and special training courses; as well as develop these skill sets: coordination skills, teamwork skills, conflict resolution skills in the process of inspecting and handling documents; so that they can improve the implementation of the inspection regime for LND in practice 2.2.4.3 Methods and procedure of implementing the inspection regime for legal normative documents 15 16 ... IMPROVE THE INSPECTION REGIME FOR LEGAL NORMATIVE DOCUMENTS ISSUED BY PROVINCIAL AUTHORITIES 4.1 Directions to improve the inspection regime for legal normative documents issued by provincial authorities. .. 2.2.1.3 The inspection regime for legal normative documents issued by provincial authorities From the above definition of inspection regime for LND, the inspection regime for LND issued by provincial. .. with other studies, the thesis The inspection regime for legal normative documents issued by provincial authorities fully utilizes the perspective of state administration Furthermore, the thesis