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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES L NGUYEN THI THUY DUNG ADMINISTRATIVE PREVENTIVE MEASURES UNDER THE VIETNAMESE LAW Major: Constitutional Law and Administrative Law Major code: 9.38.01.02 SUMMARY OF THE DOCTORAL DISSERTATION IN LAW Hanoi - 2020 The dissertation completed at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences Supervisor: Assoc Prof Dr Le Thi Huong Reviewer 1: Prof Dr Pham Hong Thai Reviewer 2: Assoc Prof Dr Dinh Xuan Thao Reviewer 3: Dr Nguyen Van Thuan The dissertation will be defended at Graduate Academy Level Council of dissertation assessment at Graduate Academy of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2020 The dissertation may be found at: - Vietnam National Library; - Graduate Academy of Social Sciences Library INTRODUCTION The necessity of the research topic Administrative preventive measures are a group of measures applied by the competent person to prevent violations of law, consequences and damages to ensure that the handling of administrative violations is lawful The application of administrative preventive measures will limit some personal rights and freedoms recognized by the Constitution and laws If the administrative preventive measures are not applied to the right people, it will affect the human rights of the persons to be applied and the prestige of the state agencies, as well as the people’s confidence in the Party’s policy and the state’s law Moreover, these measures are also the legal means to protect legitimate rights and interests of citizens In addition, to implement administrative preventive measure, the state must pay lots of costs for operating of this apparatus Therefore, the administrative preventive measures and the implementation of the measures are always associated with the law, society, economy that the state, organizations and individuals are particularly interested However, to the current administrative law, the importance of administrative preventive measures has not been paid attention and examined satisfactorily Moreover, the provisions of the current law on administrative preventive measures have still many shortcomings In fact, the application of administrative preventive measures has always posed risks of harming human rights and citizens’ rights by the competent subjects From the above analysis and to meet the requirements of the construction of the socialist rule-of-law state of Vietnam, in which the focus is to reform administration, it is necessary to examine intensively and comprehensively the administrative preventive measures Thus, the author has conducted the research titled “Administrative preventive measures under the Vietnamese law” as her doctoral dissertation in Constitutional Law and Administrative Law Research purpose and tasks The study aims to interpret the scientific basis to give views and solutions to improve the law on administrative preventive measures in Vietnam on the basis of clarifying theoretical issues on administrative preventive measures, and assessing the real situation of the law and the application of administrative preventive measures in practice In order to achieve these research purposes, the dissertation tries to solve the following tasks: First, reviewing and assessing scientific works on administrative preventive measures and then it clarifies the theoretical issues related to administrative preventive measures Second, analyzing development of the law on administrative preventive measure over the periods and pointing out the rule of development and inheritance; assessing the real situation of the law on administrative preventive measures, as well as the application of these measures in practice, and the study points out advantages, disadvantages and their causes Third, the study clarifies the needs and viewpoints to improve the law administrative preventive measures in the current context, and then it presents recommendations and solutions to improve the law on administrative preventive measures so to ensure the application of these measures Research subject and scope Research subject of the dissertation is defined as the theoretical and practical issues of administrative preventive measures in Vietnam in terms of both statutory law and the law enforcement Research scope: Regarding the content: Due to the complexity and special coercion of handling of administrative violations, it is impossible to analyze all administrative preventive measures, thus the dissertation just focuses on researching and evaluating preventive measures to deal with administrative violations Spatially, the dissertation seeks to assess the research issues nationwide Regarding time, the study examines administrative preventive measures from 2013 to the present (since the 2012 law on handling administrative violations took effect) Methodology and research methods In addition to methodology of dialectical materialism and MarxistLeninist materialism, the dissertation also bases on theoretical grounds after studying issues related to administrative preventive measures Theory of state power and control of state power; theory of state coercion; theory of human rights and the rights of citizens from perspective of sociology and jurisprudence; theory of nature, role and value of the law in the new era The dissertation utilizes legal methods such as methods of analysis, synthesis, comparative methods, secondary research methods, system methods, forecasts, interpretations, interdisciplinary approach in law New contributions of the dissertation First, the dissertation seeks to review and analyze the existing views on administrative preventive measures so as to make the concept of administrative preventive measures and pointing out the characteristics and roles, as well as classifying administrative preventive measures and make sure to implement these measures Second, by analyzing comprehensively the real situation of provisions of the existing law and applying the law on administrative preventive measures, the dissertation points out the shortcomings, limitations and causes of these limitations so as to assess the reality of implementation of the law on administrative preventive measures Third, by determining the need to improve the law on administrative preventive measures, the dissertation presents a system of views and solutions to complete the provisions of the law on administrative preventive measures, as well as opinions and solutions to ensure the application of administrative preventive measures Theoretical and practical significance of the dissertation Theoretically: the dissertation contributes to deepening the theoretical issues on administrative prevention, as well as improving the law on administrative preventive measures The research findings can be seen as reference for researching, teaching and learning at the institutions training law Practically, the dissertation can be used as reference for the competent state agencies to study and improve the law on handling administrative violations Structure of the dissertation Besides the introduction, conclusion and references, the dissertation includes chapters: Chapter 1: Literature review Chapter 2: Theoretical issues on administrative preventive measures Chapter 3: The reality of administrative preventive measures in Vietnam Chapter 4: Improving the law and ensuring the application of administrative preventive measure in Vietnam today Chapter LITERATURE REVIEW 1.1 Research works related to the dissertation 1.1.1 Theoretical research works on administrative preventive measures First, research works on the nature, concepts, characteristics of administrative preventive measures such as “Administrative sanctions: theory and practice” by Assoc Prof Dr Vu Thu, Hanoi, 1996; “Vietnamese administrative law” by Assoc Prof Dr Nguyen Cuu Viet, 2010; “Vietnamese administrative law” by Prof Dr Pham Hong Thai (ed.), Hanoi National University Publishing House; Administrative coercion: Theory and practice” by Tran Thi Lam Thi, Doctoral dissertation in Law, GASS; “Administrative preventive measures under the Vietnamese law” by Nguyen Thi Bich Ngoc, 2017 Second, regarding classification of administrative preventive measures including “Vietnamese administrative law”, Hanoi National University Publishing House, 2010 This book divides administrative preventive measures into groups: (1) administrative preventive measures aim to suspend law violations; (2) administrative preventive measures aim to ensure administrative sanction; (3) to prevent consequences caused by violations “Russia administrative law” by L.P Luzkov, Moscow Publishing House, 1981 This book points out that administrative prevention is classified in administrative coercive measures with basic groups: administrative prevention, administrative deterrent, handling of administrative violations and administrative procedure support measures 1.1.2 Research works on the reality of the law and practice of applying administrative preventive measures First, research works on the reality of the provisions of the law on administrative preventive measures: “Vietnamese administrative law”, Hanoi Law University, People’s Security Publishing House, 2013; “Scientific commentary on handling of administrative violations 2012” (Vol 2) by Nguyen Canh Hop (ed.), National University Publishing House, HCMC, 2015 “Administrative law of the Republic of France” by Martine Lombard & Gilles Dumont, Judicial Publishing House, 2007; “Improving the law on measures to prevent administrative violations and ensure the handling of administrative violations” by Truong Thi Phuong Lan, Journal of Legislative Studies, No 20/2011; “Ensuring civil rights in the law on custody of people according to administrative procedures” by Assoc Prof Dr Bui Thi Dao, Journal of Law, No 4/2011; “Law on handling of administrative violations and ensuring rights and interests of citizens” by Assoc Prof Dr Le Vuong Long, Journal of Law, No 5/2014 “Improving measures to prevent and guarantee the handling of administrative violations in the 2012 according to the UN Convention against torture and brutal and inhumane punishments or humiliating other persons” by Dr Cao Vu Minh Second, research works on applying administrative preventive measures such as “On the legal basis of measures to impound traffic means” by Nguyen Hoai Nam, Journal of Legislative Studies, No 5/2007; assessments of applying administrative preventive measures in the doctoral dissertation “Administrative coercion: Theory and practice” by Tran Thi Lam Thi; “The form of expulsion penalty in Vietnamese law” by Dr Cao Vu Minh, The National Political Publishing House, 2018 1.1.3 Research works on solutions of improving the provisions of the law on administrative preventive measures “Comments and recommendations on bill on handling of administrative violations of Vietnam”, United Nations, Workshop agenda to get feedback on regulations on administrative handling measures in bill on handling of administrative violations, 8/2011; “Ensuring civil rights in the law on custody of people according to administrative procedures” by Assoc Prof Dr Bui Thi Dao, Journal of Law, No 4/2011; “Improving measures to prevent and guarantee the handling of administrative violations in the 2012 according to the UN Convention against torture and brutal and inhumane punishments or humiliating other persons” by Dr Cao Vu Minh “Scientific commentary on handling of administrative violations 2012” (Vol 2) by Nguyen Canh Hop (ed.), National University Publishing House, HCMC, 2015 This study also provides recommendations to improve the provisions related to each specific administrative preventive measure 1.2 General assessment 1.2.1 The research results are inherited by the dissertation Theoretically: previous works have clarified the relationship between administrative coercion and administrative prevention Some studies have shown characteristics of administrative preventive measures and researchers have classified administrative preventive measures based on the purpose of application Regarding the reality of the law on administrative prevention: previous studies have basically evaluated the provisions of the past law and the existing law on administrative preventive measures Since then, they have pointed out the inadequacies of the law as well as problems in applying administrative preventive measures Regarding solutions of improving the law on administrative prevention: specific recommendations to complete the provisions of the law on each administrative preventive measure: the way of implementing, procedures and authority to apply, especially, recommendations to supplement further coercive measures At the same time, previous studies have also presented recommendations to ensure the implementation of administrative preventive measures such as training, disseminating and educating law; building a system of guiding documents, supervision and inspection, as well as mobilizing financial resources, human resources, regimes, polices and facilities 1.2.2 The pending questions that need to be solved in this dissertation Theoretically: the study presents the concept of administrative preventive measures and clarifying the nature of administrative preventive measures At the same time, the dissertation seeks to clarify the difference among groups of administrative preventive measures and the role of each group in the trend of building a rule-of-law state today The study also analyzes issues related to human and citizen’s rights in the process of implementing administrative preventive measures including principles, competence, procedures for implementation of administrative preventive measures, as well as implementing these measures in practice; it also examines factors affecting the application of the law on administrative prevention Regarding the reality of the law and applying administrative preventive measures in practice: it is necessary to clarify the provisions of the existing law on administrative preventive measures and point out the actual figures reflecting the advantages and disadvantages of the provisions on administrative preventive measures Thenceforth, the study presents more comprehensive and insightful comments on applying these measures Regarding solutions to improve the law on administrative preventive measures: the study presents recommendations to improve the law on administrative preventive measures It also recommends solutions to ensure the application of the law on administrative preventive measures and guarantee social order, the benefit of state administrative management, and ensuring human and citizen’s rights 1.3 Research questions and hypotheses 1.3.1 Hypotheses Administrative preventive measures under the Vietnamese law have been shaped but still have gaps and lack of realizing With the changes of social life and the need for administrative reform as well as ensuring the rule-of-law, the administrative preventive measures are showing inadequacies and limitations in terms of awareness and implementation in practice Thus, it is necessary to be fully aware and ensure the implementation of administrative preventive measures as one of the decisive factors in the process of building and completing Vietnamese law, contributing to the success of renovation in Vietnam today 1.3.2 Research questions (1) What are administrative preventive measures? What is the role of administrative preventive measures? What are the guarantees for implementing administrative preventive measures? What is the reality of the provisions of the law on administrative preventive measures, as well as the practice of applying these measures in Vietnam? What are the advantages and limitations of these measures? What are the causes of these limitations? (3) Which are the bases for improving the provisions of the law on administrative preventive measures and ensuring the application of these measures in Vietnam? What are solutions to improve the provisions of the law on administrative preventive measures and ensuring the application of these measures in Vietnam today? Chapter THEORETICAL ISSUES ON ADMINISTRATIVE PREVENTIVE MEAUSRES 2.1 The concept, characteristics and role of administrative preventive measures 2.1.1 The concept of administrative preventive measures Administrative preventive measures are state coercive ones to be implemented by competent subjects under the provisions of administrative law to individuals and organizations to terminate law violations and prevent consequences caused by administrative violations and ensure the handling of administrative violations 2.1.2 Characteristics of administrative preventive measures First, administrative preventive measure is a coercive one to be applied in the field of state administration; Second, the purpose of in order to apply immediately administrative preventive measures, the competence of applying these measures is empowered to the competent person on duty 2.3.3 Procedures for applying administrative preventive measures In general, procedures for applying these measures based on ground, authority, and purpose of each specific administrative preventive measure, and going through the stages of administrative procedures such as initiating the case, reviewing and issuing a decision to resolve the case, enforcing the decision, appeal, resolving the complaint and reviewing the issued decision 2.4 Guaranteeing the implementation of administrative preventive measures 2.4.1 Legal guarantee The dissertation focuses on the most basic elements in the legal system to implement administrative preventive measures, which are (1) Administrative preventive procedures; (2) Competence to prevent administrative violations; (3) Organizational structure and coordination mechanism to implement administrative prevention among agencies; (4) Capacity and professional qualifications of the competent persons in formulating and enforcing the law on administrative prevention; (5) Monitoring and inspection mechanism; (6) Liability and mechanisms for handling of violations while implementing administrative prevention 2.4.2 Other guarantees Other guarantees including assurance of awareness, economy and facilities 11 Chapter THE REALITY OF ADMINISTRATIVE PREVENTIVE MEASURES IN VIETNAM 3.1 The reality of the law on administrative preventive measures 3.1.1 The law on administrative preventive measures from 1945 to the promulgation of Law on handling of administrative violations 2012 3.1.1.1 Administrative preventive measures between 1945 and 1954 The administrative preventive measures of this stage were formed in wartime condition, so the building of law is still quite new Moreover, the awareness of lawmakers is still simple There is no clear distinction in applying administrative preventive measures and sanctions 3.1.1.2 Administrative preventive measures between 1954 and 1986 The administrative preventive measures of this stage are full, coherent and more uniform However, the law does not have a unified document on administrative preventive measures There is also not clear distinction between administrative preventive measures and criminal preventive measures, and they are stipulated in a document similar to the previous preventive system 3.1.1.3 Administrative preventive measures from 1986 to the promulgation of the law on handling of administrative violations The issue of the Ordinance on sanctioning of administrative violations on December 7, 1989 marked an importance progress in the legal system of administrative preventive measures as a premise for creating the legal documents on administrative preventive measures later On June 20, 2012, the National Assembly passed the Law on handling of administrative violations, marking an important milestone in the history of regulations on administrative preventive measures Accordingly, the administrative preventive measures are distinguished from preventive measures in criminal proceedings and are more specific, clear and complete 3.1.2 The existing law on administrative preventive measures 3.1.2.1 Principles, competence and procedures of applying administrative preventive measures 12 In four principles of the law on handling of administrative violations, the second principle is generally stipulated by law The content of this principle aims to prevent competent persons use casually the law, leading to the infringement of legitimate rights and interests of objects who violate administration In terms of content, “if necessary” or “if not necessary” is quite general, leading to apply randomly regulations may violate the principle of ensuring human rights while applying administrative preventive measures Restrictions on procedures and competence to prevent administrative violations are expressed in each specific measure 3.1.2.2 The detention of people The provisions of the existing law on the detention of people according to administrative procedures have some limitations such as the current provisions have supplemented acts as basis for detaining people but still not enough The provisions of the law are not specific and it is hard to apply them in practice A number of contents are not feasible The law does not stipulate responsibility of higher authorities when their subordinates violate the law 3.1.2.3 Escorting violators There are still limitations of the law on administrative preventive measures such as the existing law does not have full provisions on measures of escorting violators Although Article 25 of Decree 112/2013/ND-CP has clearly mentioned competence to escort violators, this mention is not really comprehensive The existing law does not have specific regulations on procedures for escorting violators and it also does not have specific regulations for cases of using weapons and supported instruments when escorting violators 3.1.2.4 Confiscating material evidences, means, licenses and certificates of people violating administration Compared with the 2002 Ordinance on handling of administrative violations, the law has expanded the scope of applying measures of confiscating material evidences and certificates under the administrative procedures In addition to the progress, the law still has some 13 shortcomings such as some contents are not specific and clear, the provisions are still not consistent with reality 3.1.2.5 Body cavity searches If it is necessary to conduct body cavity searches, the competent person won’t need to issue a written decision but he/she then must submit report to his/her leader who has the right to apply measures of taking person into custody However, the law does not specify the period of time to submit this report In addition, when officers and soldiers of the Border Guard Command perform body cavity searches under administrative procedures, they must immediately submit report to their leader The leader of a group, the department head or commanders have rights to sanction of administrative violations but they are not people who specified in Clause 1, Article 123 of the law on the handling of administrative violations 3.1.2.6 Searching transport means and objects according to administrative procedures The authority of applying this measure is for those who are competent to body cavity searches The law also extends the authority to search transport means and objects in case of urgency “if the search is not conducted immediately, the material evidence will be dispersed and destroyed” However, it can be seen that a limitation of the current law is that there is not specific regulation on the period of time to search and whether the authority has the right to search transport means and objects at night or not 3.1.2.7 Searching places where material evidences and means of administrative violations are hidden Limitations and inadequacies of this law are that the law has not specified clearly where is hidden material evidences and means of administrative violations In addition, regulations on the consent of the Chairman of the District People’s Committee for a search of place is not feasible, in many cases, it may be considered an obstacle to a search 3.1.2.8 Managing foreigners who have violated Vietnamese law during the time of carrying out the expel procedures 14 The existing law expresses humanity in the provisions on the rights of expelled-persons However, the Government’s Decree No 112/2013/ND-CP stipulates further measures of forcing them stay at the accommodation managed by the Ministry of Publish Security is contrary to the provisions of the law on the handling of administrative violations In addition, one of the conditions for applying the above management measures to foreigners during the time of carrying out the expel procedures is that when there are grounds to believe that such persons will escape or hinder the execution of the decisions However, the existing law has not specific regulations which subjects will have authority to prove this evidence In addition to the above administrative preventive measures, there are also a number of administrative preventive measures that not specified by the law such as forcing to stop the violations The law does not recognize this measure as an administrative preventive one showing a lack of current regulations of Vietnam on coercive measures to prevent administrative violations 3.2 Practical application of administrative preventive measures in Vietnam 3.2.1 Practical application of preventive measures to terminate violations and prevent consequences caused by violations The detention of people according to the administrative procedures: There are not many data on this preventive measure In fact, this measure is rarely used due to the law on handling of administrative violations has limited acts of violations The fact also shows that the law enforcement forces are not enough and there are still inadequacies in the propagation and dissemination of the law on the detention of people according to the administrative procedures In addition, another inadequacy is that the compliance with the provisions of the law on detention of people To ensure the time of detention, the authority “must arrest people in the morning but making a record in the afternoon” In many localities, conditions for detainees and facilities for this work, as well as the rights of detainees has not been paid attention 15 Escorting violators: The application of measures of escorting violators according to administrative procedures does not ensure proper procedures and processes In fact, with the characteristics of the border guards, they must work regularly in the locality, so there are places where detect violations often far from their units When violators fail to voluntarily comply with the requests of border guards, they must apply measures of escorting the violators In order to carry out this authority, the border guards on duty must issue a decision to escort the violators in writing and must deliver a copy to the escorted person In fact, the issuance of this decision is not effective because the border post is far away from the place that violator was detected, so it could not get the unit’s seal in time to escorting violators Forcing to terminate violations: in fact, when organizations and businesses violating administration, they just pay fines but not comply with the temporary termination of contract, as well as overcoming consequences, this leads to the state’s goal has not yet achieved effectively The current regulations not have measures of enforcing administrative prevention, in such cases, the law enforcement agencies must stop supplying electricity and water However, this measure has not been prescribed in current legal documents 3.2.2 Practical application of preventive measures to ensure the sanctioning of administrative violations Body cavity searches; Searching transport means and objects according to administrative procedures; Searching places where material evidences and means of administrative violations are hidden The biggest obstacle is the overlap, contradiction, and lack of tightness in regulations on competence, procedures, subjects of application, and the application of competent authorities also affects human rights and the rights of citizens While conducting this work, there are also many obstacles on authority and procedures, not in compliance with the provisions of the law that is to ensure the sanctioning of administrative violations 16 Managing foreigners who have violated Vietnamese law during the time of carrying out the expel procedures: the data on the management of foreigners during the time of carrying out the expel procedures are almost unavailable This is because the application of expulsion sanction is also limited by many reasons 3.2.3 Practical application of mixed preventive measures Regarding the handling of material evidences and transport means, currently, there are many unsettled dossiers, the parking lots to be increasingly overloaded and lasting for many years, causing great waste for society There is not software in handling of administrative violations in the field of traffic order and safety so as to monitor and connect the sanctioning of violations with vehicle registration, and it does not have the connection among police units nationwide In addition, some localities not meet properly the paperwork procedures for detention under the law 3.3 General assessment of the law and practical application of administrative preventive measures in Vietnam today The amendment of the law for administrative preventive measures is increasingly completed for both bases, authority, and application procedures This demonstrates the basic rights of citizens and increasingly ensure democracy, openness and transparency in the state administrative management However, there are still some defects, namely: In the provisions of the law on administrative preventive measures: First, some provisions are not consistent with the reality, leading to the application of the law is not feasible Second, some provisions are not specific and clear, leading to many different interpretations Third, the administrative preventive measures are poor and not have enough grounds of application as well as the applied authority Fourth, there is no clear-cut between administrative preventive measures and other coercive measures Fifth, the provisions of the existing law on administrative preventive measures are quite arbitrary, especially the authority to prevent administrative violations Sixth, the provisions are contradictory and inconsistent Seventh, the provisions of 17 the existing law not have a specific division of preventive measures that apply for different subjects In fact, the competent agencies have not strictly complied with the principle “they just apply preventive measures when they have necessary evidences”, and the application of administrative preventive measures is not right for the purpose of each specific measure The reality of the provisions and the application of the above measures, the author thought that there are the following causes: first, the awareness of competent people Second, the issues of management and institutions Third, organizational work and people Fourth, due to economic constraints Chapter IMPROVING THE LAW AND ENSURING THE APPLICATION OF ADMINISTRATIVE PREVENTIVE MEASURES IN VIETNAM TODAY 4.1 The demand for improving the law and ensuring the application of administrative preventive measures 4.1.1 Strengthening management and administration reform Administration reform is a general trend of many countries in the world this requires firstly institutional reform of administrative coercion including administrative prevention 4.1.2 Stemming from the reality of the law and the application of administrative preventive measures in Vietnam today The need of improving the law also comes from the intrinsic inadequacies of coercive measures which require changes to overcome those inadequacies 4.1.3 Guaranteeing human rights and the rights of citizens in applying administrative preventive measures It is necessary to improve the provisions of the law and ensuring the law enforcement associated with civil rights and human rights in building a socialist rule-of-law state 18 4.1.4 Stemming from the forecasts of administrative violations and the demand for ensuring safety of social relations in conditions of socialist-oriented market economy In the future, administrative violations are likely increasing in quantity and in all areas of social life From this increase as well as the reality of applying administrative preventive measures, it is necessary to heighten the safety of social relations in the condition of socialistoriented market economy 4.2 Viewpoints to improve the provisions of the law and ensuring the application of administrative preventive measures 4.2.1 Ensuring the uniformity and feasibility of solutions of improving the law and ensuring the application of administrative preventive measures The process of improving the law on administrative preventive measures must have the consistency between the law stipulating the administrative preventive measures and specific documents, guiding the law enforcement in state management; the consistency and synchronization between the legal system of administrative deterrence and the application of such law in practice 4.2.2 Improving the law and ensuring the application of administrative preventive measures consistent with international commitments on human rights which Vietnam as its member It is necessary to adjust the provisions of the law in accordance with international principles of human rights However, it is also consistent with circumstance of Vietnam 4.2.3 Ensuring the compatibility and harmony between the efficiency of state management and the guarantee of human rights and citizens' rights The state is entitled to use administrative preventive measures in certain cases to maintain management and protect the legitimate interests of the state, organizations and individuals but it is necessary to determine scope of adjustment, as well as the limit of applying administrative prevention in the state management 19 4.2.4 Completing the law and ensuring the application of administrative preventive measures based on the basic attributes of modern state governance such as respect the law, transparency, accountability and democracy The state should create a fair legal framework and make a habit for people to live and work by the law The process of promulgating and implementing administrative preventive measures must ensure the people’s right to access to information At the same time, for those who hold and exercise state power need to accountability For example, responsibilities of subordinates to superiors (internal responsibilities) and responsibilities of public authorities to society 4.3 Solutions of improving the provisions of the law on administrative preventive measures and ensuring the application of administrative preventive measures in our country today 4.3.1 Regarding awareness First, regulations on administrative preventive measures must be established based on the principle of equality Second, it is necessary to be aware of the ability to flexibly apply administrative preventive measures and the administrative violations in social life Third, it is necessary to be aware of stability of the administrative preventive measures Fourth, it is necessary to define clearly the boundary between administrative prevention and criminal prevention Fifth, it is necessary to change the perception of people who apply the law while applying administrative sanctions 4.3.2 Solutions of completing the provisions of the law on administrative preventive measures 4.3.2.1 Criteria for completing the law on administrative preventive measures The quality of the legal system of administrative prevention shows that its content is consistent with the Party's views, guidelines and policies in preventing administrative violations; consistent with the principles and requirements of building a rule-of-law state in Vietnam; consistent with political and socio-economic conditions, and international 20 treaties on human rights which Vietnam as a member, and must be consistent with Vietnam’s tradition and politico-economic conditions; must ensure the comprehensiveness, unification and synchronousness 4.3.2.2 Completing the provisions of the law on administrative preventive measures First, completing the provisions of the law on administrative preventive measures, namely: 1) Amending and supplementing regulations related to measures of body cavity searches, searching transport means, objects, and places where material evidences and means of administrative violations are hidden: It is necessary to supplement the regulations on the period of time to submit report of body cavity searches In addition, the searches can be conducted at night but there must be a clear and specific time At the same time, the law on handling of administrative violation 2012 should have an article to explain where is hidden material evidence in order to avoid confusing for the subject 2) Amending regulations related to measure of detaining people and escort violators: for the detention of people, it is necessary to supplement regulations on this measure; should stipulate that the time of detention of people is counted from holding people (having decision on detention of people at this time); should have appropriate provisions on custody period To escort violators, it is necessary to supplement regulations explaining the term escort in order to avoid mistaking In addition, supplementing competence to escort in case the detained person as the “commander of the aircraft and the captain” 3) Amending regulations on the management of foreigners during the time of carrying out the expel procedures and confiscating material evidences, means, licenses and certificates of people violating administration: the law should specifically explain how is ground considered as the person evades or hinders the execution of deportation decisions At the same time, it is necessary to specify which subjects will have competence to prove the above contents Regarding the expenses, the law can be amended in such a way that if the expelled person does 21 not have money to pay for the cost of the vehicle, he/she will have to sell his/her assets to pay such cost Regarding regulations of confiscating material evidences, means, licenses and certificates of people violating administration: It is necessary to supplement specific provisions on duration of custody, return, order and procedures for returning means, licenses, and certificates For violations with large sanctioning levels, the material evidences and means of violations must be seized immediately without keeping papers related to such material evidence and means Second, controlling the “discretionary” issue in regulations on administrative preventive measures (1), we need to establish a legal framework for the implementation of administrative discretion (2) selecting substantially and effectively managers in which pay attention to the capacity and responsibility in exercising discretionary rights Third, adjusting regulations related to the issue of empowerment in the application of administrative prevention: it is necessary to amend and supplement a specific regulation on the responsibility of the chief (the delegator) and subordinates (empowered persons) in the law on handling of administrative violations Fourth, completing regulations on procedures of applying administrative preventive measures: the law should supplement regulations on the application of judicial procedures such as the detention of people and managing foreigners during the period of carrying out the expel procedures Fifth, adjusting, abolishing, and rearranging a number of regulations related to administrative preventive measures: It is necessary to separate regulations on how to handle acts against officials on duty as criminal offenses from the regulations on how to handle acts against persons on duty in administrative violation At the same time, stipulating properly the content of handling acts against persons on duty corresponds to the administrative preventive measures stipulated by the law on handling of administrative preventive measure 2012 At the same time, it is necessary to abolish the regulations of “forcing to stay at accommodation managed 22 by the Ministry of Public Security” that stipulated at Point d, Clause 2, Article 30 of Decree No 112/2013/ND-CP Sixth, it is necessary to supplement administrative preventive measures, namely, prohibiting the control of transport means and suspending violations Additionally, it is necessary to stipulate the measure of suspending the supply of electricity, water and other services” as a coercive measure to ensure the implementation of administrative prevention, and supplementing the provisions related to juveniles in the process of applying administrative preventive measures Seventh, improving the law on accountability of competent entities in implementing administrative prevention: it is necessary to add more explanatory grounds because all administrative prevention activities cannot be explained immediately In addition, the time for direct explanation should not be longer than the time of implementing administrative preventive measures, and should specify clearly the right to accountability for each individual, organization Eighth, improving the organizational structure as well as the coordination between agencies and organizations in applying administrative preventive measures: the law should have specific regulations on the responsibility of agencies, organizations and individuals in the process of enforcing law on administrative prevention, their liability when failing to comply with or failing to fully comply with authorities’ requests Ninth, Improving the mechanism of handling complaints and denunciations in the state administrative agencies: Reviewing documents, amending and supplementing inconsistent contents on administrative prevention to reduce complaints Continuing to improve the Law on complaints and denunciations by providing simpler and clearer procedures so that citizens exercise their rights together with specific sanctions when state agencies delay the process of dealing with complaints and denunciations of citizens 4.3.3 Solutions of ensuring the application of administrative preventive measures 23 - Enhancing the professional capacity and public duties of competent persons in applying administrative preventive measures - Strengthening dissemination, propaganda and education of the law to raise the awareness, capacity to use and protect the legitimate rights and interests of citizens and organizations who are the subjects using administrative preventive measures - Strengthening supervision and inspection of implementing the law on administrative preventive measures - Strengthening the role of the Court in controlling administrative decisions and acts to protect citizens' basic rights in the field of administrative prevention - Strictly handle violations while enforcing law on administrative preventive measures - Accelerating research and reviewing the adjustments of the law and applying administrative preventive measures - Strengthening facilities and equipment for those who apply administrative preventive measures CONCLUSION The dissertation has reviewed literature, thenceforth, it has pointed out the contents that it can inherit as well as the issue that need to be examined in this dissertation By studying the theoretical issues and the reality of administrative preventive measures, the author hopes that the research findings of the dissertation will be a significant contribution to the improvement of the law and ensuring the application of administrative preventive measures so as to protect the socialist legislation, maintaining social order and safety, as well as protecting the legitimate rights and interests of citizens and to successfully build a socialist rule-of-law state in Vietnam 24 The author’s published-papers list related to the dissertation Nguyen Thi Thuy Dung (2017) Administrative preventive measures in the Vietnamese administrative law, Journal of People's Court, No 2, p 20 Nguyen Thi Thuy Dung (2019) Discussing the concept of “administrative preventive measures”, Journal of Social Science Manpower, No 06, p 19 Nguyen Thi Thuy Dung (2019) Confiscating material evidences, means, licenses and certificates according to administrative procedures, Journal of Democracy and Law, No.7, p 49 Nguyen Thi Thuy Dung (2019) The detention of people according to administrative procedures and the issue of ensuring human rights and the right of citizens The human rights over years of implementing the 2019 Constitution 25 ... also bases on theoretical grounds after studying issues related to administrative preventive measures Theory of state power and control of state power; theory of state coercion; theory of human... of Social Sciences, Vietnam Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time: ………… date ……… month …… …year 2020 The dissertation may be found at: - Vietnam National Library;... administrative preventive measures Theoretical and practical significance of the dissertation Theoretically: the dissertation contributes to deepening the theoretical issues on administrative
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