Delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in vietnam

Administrative redress and administrative dispute settlement in Vietnam has been a special topic mentioned by Party, State and many legal scholars. Especially, delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative case is always defined as a key factor of administrative dispute mechanism and for ensuring the right to complaint and initiate of individual, organization. However, these two channelshave been carried out and improved separately. Although previous studies mentioned about administrative redress and administrative dispute settlement but did not focus on delimitation of jurisdiction to de al with administrative complaint and jurisdiction to deal with administrative case in Vietnam. However, these studies illustrated arguments, scientific viewpoints related to some contents of this topic. Though studies did not provide comprehensive and consistent arguments, viewpoints however these studies were the grounds for dissertation to analyse, evaluate, and propose comprehensive and coherent recommendations for delimitation of jurisdiction to deal with administrative complaint and jurisdiction to dea l with administrative case in Vietnam. In order to respond fully to the needs of administrative redress, Vietnam and many countries around the world have established and implemented various mechanisms for dealing with administrative disputes. When implementing two channelsfor dealing with administrative disputes, delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative case must be conducted comprehensively by scientific methods in both aspects: legal regulations on scope of administrative disputes and jurisdiction to deal with administrative dispute or jurisdiction to deal with administrative case relatively; and delimitation of jurisdiction to deal with administrative complaint or jurisdiction to adjudicate the specific administrative disputes.

pdf27 trang | Chia sẻ: aquilety | Lượt xem: 1678 | Lượt tải: 0download
Bạn đang xem trước 20 trang tài liệu Delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in vietnam, để xem tài liệu hoàn chỉnh bạn click vào nút DOWNLOAD ở trên
on of power to, and co-ordinate and control tightly among State bodies in exercising legislative, executive and judicial rights in process of dealing with administrative disputes under the rule of law state. These mechanisms also do not create favourable conditions for protecting timely and fully the rights and legitimate interests of individual, organization violated by authority when exercising executive power. However, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam has not yet studied in depth, comprehensively and systematically as a dissertation theme. Therefore, dissertation theme: "Delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam" responds to the urgent needs of Vietnam in both legal theory and practical aspect. 2 2. Subject and Scope of Research Theme Subject of research theme includes: - Legislative perspective, content and methods prescribed by current related legal regulations in Vietnam in comparison with the other countries. - Law enforcement of delimitation of jurisdiction in handling with administrative complaint and lawsuit in Vietnam recently. - People’s opinion and scientific assessments of effectiveness, scope and the ways for determining the jurisdiction in handling administrative complaint and lawsuit in Vietnam. Research theme focuses mainly on study the aspects such as: concept and forms of administrative dispute; concept of jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam; concepts, contents and grounds for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases; administrative disputes which are solved under administrative procedure or administrative court procedure according to current legal frameworks in Vietnam; receipt of case files related to administrative complaint and lawsuit according to current legal regulations in Vietnam. 3. Research objectives and study mission Research aims at analysis both theory and practice of legislation and law enforcement in delimiting the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in order to ensure that: individual/organization can exercise fully their rights to select administrative dispute handling measure; good poits of each handling measure will be ultilized whereas weak points will be minimized; jurisdiction to deal with administrative dispute is coherent and consistent with jurisdiction of court to deal with administrative case; effectiveness of mechanism for dealing with administrative dispute in Vietnam will be enhanced. In order to reach the above mentioned objectives, research includes the following tasks: 3 - Clearly determining the scientific grounds for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam. - Evaluating the current practices in delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in both aspects of legislation and law enforcement. - Proposing the opinions and solutions in both legislation and enforcement aspects for ensuring that the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in coming years, meeting requirements of rule of law state and global integration in Vietnam. 4. Research Methodology Research has been carried out basing on the methodology of Marxism - Leninism, Ho Chi Minh thought, and Vietnam Communist Party’s policy for building rule of law state in open market economy and global integration period. In addition, there are some methodologies such as systems, analysis, comparison, synthesis, statistics, specific historical study and results of social surveys carried out in previous studies. 5. Research’s implication in science and practice aspects Dissertation contributes to science in term of determining comprehensively and systematically the jurisdiction in handling with administrative complaint and lawsuit in Vietnam. The dissertation contributes: - The dissertation introduces the concept of administrative redress which includes administrative complaint and initiation of administrative cases. - The dissertation introduces the concepts of jurisdiction to deal with administrative complaints and jurisdiction of courts to deal with administrative cases; points out the trend of diversifying channels for resolving administrative disputes in Vietnam and around the world; and analyses good points and weak points of each channel. 4 - The dissertation defines the concept of delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases; indicates the need as well as the contents and grounds for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases. - The dissertation evaluates the status quo of the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in recent years with regard to legal framewor and practical law application. - The dissertation proposes viewpoints and solutions with regard to legal framewor and practical law application for ensuring the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in coming years, meeting requirements of a rule of law state and global integration in Vietnam. In addition, arguments, evaluations, conclusions and recommendations of the dissertation are reliable and can be good references for researching, teaching and improving the law and promoting the effectiveness of law enforcement in handling with administrative redress and disputes in general and the delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam in particular. CHAPTER 1 OVERVIEW OF STUDIES RELATED TO RESEACH TOPIC Through assessment of previous studies related directly to the scope of this research, the viewpoints of delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam were mentioned in various ways or even conflicted with each other. Therefore, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam has been a significant topic discussed 5 by many scholars. However, this topic has not yet studied comprehensively and systematically. In addition, the recent changes in legislative views and law enforcement for delimitation of jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam. On the other hand, the current changes in legislative views, legal regulations and law enforcement related to jurisdiction to deal with administrative complaint and jurisdiction of court to deal with administrative lawsuit in Vietnam requires to study about delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam as an essential science task during this period. CHAPTER 2 THEORETICAL BASIS FOR DELIMITATION OF THE JURISDICTION TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASE 2.1. Administrative redress and the diversity of jurisdiction to deal with administrative dispute 2.1.1. Administrative redress In order to ensure consistency of terms, "administrative redress" reflects the common features of administrative complaint and administrative case initiation, which includes: Firstly, administrative redress refers to the right of self-defense and self-determination of the object of public administration when executive power was abused. Secondly, objective of administrative redress refers to implementation of executive power (mainly including administrative decision and action). Thirdly, administrative redress can be carried out only in specific conditions determined by laws. Fourthly, administrative redress must be carried out in the forms determined by laws. 6 Fifthly, administrative redress refers to dispute happened between subject and object of public administration. In brief, administrative redress is the right to self-defense and self- determination of object of public administration through requesting in accordance with the laws the competent state organ to handle with administrative dispute in order to protect the right, legitimate interests that are violated illegally or unreasonable in exercising of executive power. Administrative redress includes two forms as follows: - Administrative complaint is the right to self-defense and self- determination of object in public administration through requesting based on laws the competent state organ to handle with administrative dispute by administrative procedure in order to protect the right, legitimate interests that are violated illegally or unreasonable in exercising of executive power. - Administrative case initiation is the right to self-defense and self- determination of object in public administration through requesting the court to handle with administrative dispute by administrative court procedure in order to protect the right, legitimate interests that are violated illegally or unreasonable in exercising of executive power. 2.1.2. Diversity of jurisdicion to deal with administrative dispute 2.1.2.1. Jurisdiction in handling with administrative complaint Through assessment of the legal regulations and law enforcement on jurisdiction to deal with administrative complaint, jurisdition to deal with administrative complaint is carried out under jurisdition of public administration subject when exercising executive power. This jurisdiction is determined by administrative laws in order to solve the administrative complaint under administrative procedure. Hence, settlement of administrative complaint is a channel of solving administrative dispute through exercising executive power, under the motto: use executive power to control executive power. Therefore, the disadvantages inherent in this channel is not ensuring the objectivity and 7 equality between complainant and complained; is not ensuring requirements of "specialized" in process of dealing with administrative dispute. On contrary, this channel also includes many advantages which should be promoted such as: creating a quick and comprehensive mechanism for handling with administrative dispute; strengthening relationship between the subject and object of public administration; promoting the self- management and self-responsibility of the national administration. 2.1.2.2. Jurisdiction to deal with administrative case Through assessment of the legal regulations and law enforcement on jurisdiction to deal with administrative case, jurisdiction to deal with administrative case is carried out under the jurisdiction of court to adjudicate administrative dispute under the administrative court procedure. Therefore, administrative case adjudication is a channel of solving administrative disputes through exercising the judicial power; under the motto: use judicial power to control executive power. Hence, the disadvantages inherent in this channel are: not ensuring the settlement of administrative dispute quickly; not allowing review and adjudicate the reasonability of the implementation of executive power, or the internal work of public administration; not able to restore directly the rights and legitimate interests of individual/organization which have been violated by exercising executive power; not ensuring the "specialized" element in handling with administrative dispute. However, the advantages of this channel must be utilized such as: settlement of administrative dispute is independently; the equality between the petitioner and petitioned person is ensured; subject’s responsibility in exercising and dealing with administrative dispute will be enhanced. 2.1.2.3. Jurisdiction of administrative tribunals to deal with administrative dispute Administrative tribunals for dealing with administrative dispute is defined as a combining channel of the implementation of executive and judicial power. This tribunal is established on the basis of notion: national 8 public administration is combined of two components: public administration and administrative tribunals. Therefore, the administrative tribunals not only ensures the requirement of "specialized" to deal with administrative disputes but also consists of many advantages of the two channels to deal with administrative complaint and cases. However, the administrative tribunals channel also raises some challenges such as: Firstly, administrative tribunals may interfere deeply into the works related to public management. Secondly, administrative tribunals may face with difficulty in training the their professional staffs who affect directly to the quality of settlement of administrative dispute. 2.1.2.4. Jurisdiction of mediation organ to deal with administrative dispute Settlement of administrative dispute by mediation organ refers to channel which combines a half nature of state power activity and a half of social activity. Therefore, administrative dispute settlement which under the jurisdiction of mediation organ can overcome the common disadvantages of the other channels to deal with administrative disputes under jurisdiction of executive organs, courts and administrative tribunals. However, the administrative dispute resolution of mediation organ also faces with the most difficulty in training and maintaining arbitrators who have appropriate professional skills, experiences, capacities, and reputation for proposing reasonable and acceptable recommendations to the both complainant and complained as well as the other competent organs such as court, executive organs, and administrative tribunals. Therefore, diversifying jurisdiction to handle with administrative disputes is a common trend in countries around the world. However, Vietnam is not able to set up channels to deal with administrative disputes by adminitrative tribunals or mediation organs dute to the lack of capacity. Therefore, dissertation only focuses on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with 9 administrative cases in Vietnam which combines two measures carried out under administrative procedure and administrative court procedure. 2.2. The viewpoints of delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases In Vietnam recently, there is a viewpoint such as: on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases is mentioned in a case when a dispute over jurisdiction between two channels: administrative complaint settlement and administrative case adjudication. This dispute is happened when individual/organization exercise the right to complaint cannot get agreement in selecting the channel to deal with administrative dispute. This viewpoint does not reflect fully the relationship between two channels: administrative complaint settlement and administrative case adjudication based on a holistic unified mechanism of administrative dispute resolution. This dissertation defines the concept of delimitation of jurisdiction based on the viewpoint of delimitation such as: delimitation is a clear division and determination of jurisdiction as well as the analysis of jurisdiction to handle with administrative complaint and jurisdiction of court to adjudicate administrative case mentioned in section 2.1.2.1 and 2.1.2.2 of dissertation, on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases defined in a broad concept is the division of administrative dispute into groups corresponding to jurisdiction on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases and to the specific determined jurisdiction cases as prescribed by laws. 2.2.1. Content of delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases 10 According to broad concept, on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases includes two elements: first, delimitation is a division of administrative disputes into groups corresponding to jurisdiction on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases (it refers to jurisdiction which defined by specific cases); second, delimitation is a determination of jurisdiction in specific cases prescribed by laws (it refers to case in which state organ recieves administrative dispute basing on the competence prescribed by laws). These are two important elements which interact each other in the process of handling with administrative dispute. When exercising executive power, state organ holds power to provide legal regulations independently for deviding administrative disputes into groups corresponding to jurisdiction to deal with administrative complaint or jurisdiction of court to deal administrative lawsuit. However, the responsibility to implement these regulations belongs to executive organs and judicial organs, firstly the responsibility of executive organ in receiving administrative complaint and the responsibility of court in receiving lawsuit. Therefore, the interacted relationship between two elements of delimitation of jurisdiction as mentioned above indicates the unity of state power in legislation, execution and judiciary in the field of administrative dispute resolution. Consequently, receiving administrative complaint must comply with legal regulations on scope of jurisdiction to deal with administrative complaint; receiving administrative lawsuit must follow legal regulations on scope of jurisdiction of court to deal with administrative lawsuit; provisions which define the scope of administrative disputes corresponding to jurisdiction of administrative complaint resolution and jurisdiction of court to deal with cases must relevant to practice of receiving these administrative disputes. On contrary, these provisions on 11 jurisdiction will not come to effect if the administrative disputes are not received in practice. 2.2.2. Ground for on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases Reasonable on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases is a ground not only for ensuring the effectiveness and coherence of administrative dispute resolution mechanism but also for ensuring the right to complain or initiate. It also contributes to ensure that the executive power is exercised legally and reasonably. In order to reach this aim, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases must be conducted on the basis of the following grounds: Firstly, the needs of administrative complaint and lawsuit. Secondly, the specific features of jurisdiction to deal with administrative complaint and lawsuit. Thirdly, the organization and operation of the current national public management and court system Fourthly, the viewpoints of distribution of state functions in administrative dispute resolution mechanism. CHAPTER 3 CURRENT PRACTICE OF DELIMITATION OF THE JURISDICTION TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASE IN VIETNAM 3.1. Administrative disputes are under jurisdiction of administrative complaint resolution and jurisdiction of court according to current legal regulations in Vietnam 3.1.1. Disputes are under jurisdiction of administrative complaint resolution 12 In Vietnam today, Law on Complaint, Decree No.75/2012/ NĐ-CP and the other related legal documents do not provide directly the disputes which are under jurisdiction of administrative complait resolution. This jurisdiction is provided indirectly through regulations on the objectives of complaint and the transfere of authority in handling with administrative complaint in public management. The scope of administrative complaint objectives and the transfere of authority in handling with administrative complaint are determined by various legal documents basing on the different contents, methods and legislative views, such as: Firstly, the laws define many types of administrative complaint objectives; do not determine clearly the objectives of the first and the second administrative complaint settlement; do not determine differences between the objectives of the administrative complaint with the administrative complaint settlement decision and the acts related to unsolving administrative complaint. Therefore, individual/organization may face with difficulty in exercise the right to complaint. Secondly, transfer of authority in handling with administrative complaint is inconsistent, incomplete and unreasonable. Therefore, it not only creates a burden of work load in administrative dispute resolution but also limits the rights to complain of individual/organization as a object of public management. Thirdly, individual/organization is not allowed to complain about decision or acts of Prime Minister in exercising executive power because the laws do not provide the jurisdiction of Prime Minister to deal with administrative complaint. This issue is a main shortcoming of decentralization of jurisdiction to deal with administrative complaint second time. 3.1.2. Disputes are under administrative jurisdiction of court Assessments of the current legal regulations in Vietnam related to scope of jurisdiction to deal with administrative complaint and jurisdiction of court, reveals that: 13 Firstly, disputes which are under jurisdiction to deal with administrative complaint but not under jurisdiction of court include: decision in resolving competition case; administrative decision, administrative act of organ in charge of election; decision and act of civil enforcement of re-enforced person and chief of re-enforced office; disciplinary decision of civil servant; dismisal from office decision of civil servant (excluding the dismisal from office decision of civil sevant who holds position from Director General and equivalent or lower). Secondly, disputes which are under jurisdiction of court but not jurisdiction of administrative complaint resolution organs/competent person include: complaint settlement decision on decision in resolving competition case; administrative act of General State Audit; administrative decision of State Audit and the competent persons in this organ; administrative decision, administrative act of President Office, National Assembly Office, People’s Procuracy, People’s Court and the competent persons in these organs; administrative decision, administrative acts of organ (excluding decision on handling with land dispute of People’s Committee). Thirdly, some of disputes are not under jurisdiction of administrative complaint resolution organ as well as the jurisdiction of court such as: disputes related to administrative policy making decisions; legal normative decisions; decisions of Government, Prime Minister, President... In general, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases as mentioned above has not yet based on the natures and features of these channels; has not yet promoted the advantages or limited disadvantages of each measures; has not yet ensured interacted relationship between two channels as well as responded to the requirements of reasonable distribution of state functions in administrative dispute resolution. 3.2. Acceptance of administrative dispute according to current legal regulations in Vietnam 14 3.2.1. Acceptance of administrative complaint according to current legal regulations in Vietnam In Vietnam today, acceptance of administrative complaint is carried out basing on the conditions which prescribed in different legal documents. Through examining these regulations, conditions for receiving administrative complaint are extracted from provisions on unaccepted complaint. Almost unaccepted complaints are not provided reasonably and coherently with other regulations on the objectives of administrative complaints, scope of disputes are under jurisdiction of administrative complaint resolution organ, conditions for administrative complaint, and form of administrative complaint. In addition, laws do not define fully the unaccepted cases. On the other hand, Annual report of Government, Government Inspectorate and the results of social surveys of previous studies have revealed the status of complaint, result of receiving administrative complaint, and result of resolving administrative complaint as follows: Firstly, although there are fluctuations from year to year but needs of administrative complaint still very high; the number of administrative complaint cases accepted annually still maintains at high level. The mains reasons are: the laws do not provide fully and reasonably the cases which are not accepted for settlement; regulations on jurisdiction to handle with administrative complaint at two levels and the law enforcement on receiving and handling with administrative complaint are not strict enough. Secondly, the imbalance between the needs of administrative complaint of the people and the capacity of public administration organs have affected negatively to the psychological and legal awareness of both the complainant and the competent person in process of administrative complaint resolution. Some issues have happened increasingly such as: "wish for lucks" complaint, illegal complaint, or complaint with aggressive, negative attitude; avoidance of responsibility; and non-complied with laws of administrative complaint settlement person. 15 3.2.2. Acceptance of administrative cases according to current legal regulations in Vietnam In Vietnam today, receipt of administrative case is mainly carried out basing on regulations provided by Law on Administrative Court Procedure and Resolution No.02/2011/NQ-HĐTP. Through examining these regulations, it is seen that: Firstly, the conditions for acceptance of the administrative case are found indirectly through regulations on the cases of transfering lawsuit petitions or returning lawsuit petitions. Secondly, transfering of lawsuit petitions may cause problems such as: pushing responsibility of the courts in accepting cases; accepting cases become more complicated; and inconsistent with principle of ensuring the right to make decision and right to self-determine of petitioners. Thirdly, regulations on returning petitions are not clear, coherent, and hardly to apply or even conflict with the other regulations on conditions, form of petitions and jurisdiction in adjudicating administrative lawsuit. Fourthly, law on administrative court procedure provides the cases of returning petitions fully and tightly rather than the regulations on acceptance of administrative complaints. Fifthly, laws do not define clearly the cases of sharing information, cooperation between the authority person who is responsible for handling with administrative complaint and court in process of receiving, resolving, and accepting administrative complaint. Consequently, pushing of responsibility in receiving administrative dispute has happened between the authority person who is responsible for handling with administrative complaint and the courts. On the other hand, annual report of People’s Supreme Court, People’s Supreme Procuracy and results of social surveys of previous studied on the petition status, results of acceptance and settlement of administrative case in Vietnam resently, have indicated that: Firstly, the needs of petition and the number of accepted administrative 16 cases annually have tendency to increase but still limit in comparison with the needs of complaint and the number of accepted administrative complaint cases (in 2012, courts at all levels accepted under jurisdiction 6.177 administrative cases, increased 166% in comparison with 2011; however, this number only accounts for 10,53% of total number of accepted administrative complaints in the year 2012). Secondly, petitioners often prepare carefully about information and neccessary legal grounds for protecting their rights and legitimate interests. [in 2009, percentage of returning petitions of administrative cases (13,46%) was significant lower than percentage of unlawful administrative complaint cases (56,93%). Thirdly, result of administrative lawsuit settlement is better than the results of administrative complaint resolution (in 2006, the number of decisions of administrative complaint settlement which are proposed to abolish, revise, additional accounted for 30,94%; the number of judgements and court’s decisions for abolishing accounted for 6,2%; for revising accouted for 4,7%; in which, the number of judgements and court’s decisions of the first-trial which was abolished in order to re-adjudicate accounted for 9,3%, and 7% was revised). Fourthly, pushing of responsiblity between the competent persons/organs that are responsible for handling with administrative complaint and the court is still a common issue. In brief, although Law on Complaint and Decree No.75/2012 NĐ-CP were promulgated after the Law on Administrative Court Procedure and Resolution No.02/2011/NQ-HĐTP but: the contents and methods of promulgating the current legal regulations on: objectives of administrative lawsuit, disputes on jurisdiction of administrative case adjudication; acceptance of administrative cases are more advantages than the contents and methods of promulgating the current legal regulations on: objectives of administrative 17 complaint; disputes on jurisdiction of administrative complaint settlement; acceptance of administrative complaint. Although the channel for handling with administrative complaint established (23/11/1945) was sooner than the channel for adjudicating the administrative lawsuit (01/07/1996) but the quality of initation, acceptance, and adjudication of administrative cases is better than the quality of complaint, acceptance, settlement of administrative complaint. Although in Vietnam, the channel of administrative lawsuit adjudication has more advantages than the channel of administrative complaint settlement but the needs of initiation and the number of administrative lawsuit accepted annually is so few in comparison with the needs of complaint and the number of administrative complaint. CHAPTER 4 VIEWS AND SOLUTIONS FOR DELIMITATION OF THE JURISDICTION TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASE IN VIETNAM 4.1. Views on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative case in Vietnam Firstly, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam needs to carry out based on the policy and viewpoints of administrative dispute settlement mentioned by Communist Party’s resolutions and documents. Secondly, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases needs to implement based on comprehensive theoretical and practical grounds in order to utilize fully advantages as well as to minize disadvantages of each measure of resolving administrative complaint and adjudicating lawsuit. 18 Thirdly, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases needs to carry out based on the common viewpoints in order to ensure administrative dispute settlement coherently, consistently, and to comply with principle of distribution of state functions. Fourthly, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases needs to respond to the needs of administrative complaint-petition in society in accordance with current practice of national public administration and capacity of court system in Vietnam. Fifthly, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases needs to harmonize with the other measures of examination and supervision of public administration. Finally, delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam needs to carry out in parelell implementation of both measures of administrative dispute settlement (administrative complaint resolution and administrative lawsuit adjudication). 4.2. Solutions for delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases 4.2.1. Concerning to aspect of legislation Dissertation proposes to revise and add some contents and methods of promulgation of legal regulations related to delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases, in specific as follows: First, amending and adding regulations on right to complain and right to initiate a case in order to ensure harmonization of objectives, subjective 19 and grounds for exercising the right to complain and right to initiate unreasonable administrative decision, action. Second, amending and adding regulations on concept of complainant- petitioner in order to distinguish the subjects having the right to complain - initiate with the subjects exercising this right. Third, the forms of administrative complaint are determined consistently with the forms of initiation of administrative lawsuit and ensuring the implementation of direct complaint. Fourth, the objectives of administrative complaint and objectives of administrative lawsuit are determined consistently as follows: - Adminstrative decision which is a written decision issued by a competent organ, organization or individual prescribed by laws applies once to one or several particular objects for a specific matter in the administrative management activities. - An administrative act which is expressed in action or inaction of a state organ, organization or a competent person prescribed by laws relates to the rights and legitimate interests of one or several particular individuals, organizations in the administrative management activities. Fifth, defining clearly objectives of administrative complaints with the objectives of administrative complaint settlement; objectives of administrative lawsuit with the objectives of administrative lawsuit adjudication. Sixth, determining consistently regulations on administrative decisions, administrative acts defined as state confidential scope in national defence, public security, foreign affairs issued by National Assembly or Standing Committee of National Assembly because they are not objectives of administrative complaint-initiation. Seventh, providing the internal administrative decisions and administrative actions that are objectives of administrative complaint but not objectives of administrative lawsuit. Eighth, determining consistently the objectives of administrative complaint- 20 initiation which exclude decision of administrative complaint settlement and administrative action of non-settlement of administrative complaint during the time limit as prescribled by laws. Ninth, defining the procedure of administrative complaint-initiation: Individual, organization have a right to complain an administrative decision and action to the competent person who is responsible for the first resolving administrative complaint settlement or to petition this administrative decision and action to the court when he/she does not agree with this decision or action. In process of the first complaint settlement, complainant has a right to withdraw his/her complaint in order to exercise the right to institute administrative case at competent court if the statute of limitation for initiation is still available. In process of adjudicating administrative lawsuit under the first- instance court procedure, petitioner has a right to withdraw his/her petition in order to exercise the right to complain to competent person for the first administrative complaint settlement, if the statute of limitation for complaint is still available. In the case of disagreement with decision of the first administrative complaint settlement, or a complaint is not settled from the date of expiry of the settlement time limit, individual, organization has right to institute administrative case at competent court prescribed by Law on Administrative Court Procedure; or has a right to complain to the competent person who has responsibility for second administrative complaint settlement if that decision/action is not under jurisdiction of court. Second complaint or initiation of administrative case must be carried within 30 days since individual, organization received the first decision of administrative complaint settlement or since a complaint is not settled from the date of expiry of the settlement of time limit prescribed by Law on Complaint. Tenth, using qualitative methods in accordance with excluded methods replace for methods of making a list as current in order to decentralize the 21 competence in resolving administrative complaint and adjudicating administrative lawsuit. Eleventh, defining principles for determining jurisdicion of the first administrative complaint settlement for all administrative disputes provided by Law on Complaint and providing the other cases by specialized legal documents. Twelfth, defining jurisdiction to deal with administrative complaint second time of of the head of organ, organization at direct higher level of the fisrt complaint settlement person if these disputes are not under jurisdiction of court. Thirteenth, decentralization of jurisdiction to deal with administrative case bases on the following principles: Court at district level has function of the first-instance court to adjudicate the administrative cases if petitioner that is organ, organization from district to lower level or a competent person of this organ, organization. Court at provincial level has function of the first-instance court to adjudicate administrative cases which are not under jurisdiction of the district court. Administrative cases related to petitioned person that is organ/ organization at local level or competent person of this organ/organization will be under jurisdiction of court area where decision was issued or action was conducted. Administrative cases related to petitioned person that is organ/ organization or competent person of this organ/organization at central level will be under jurisdiction of court of area where petitioner is resident, works, or where headquarters is located. If petitioner does not have specific living, working address or headquarters is located in territory of Vietnam, the jurisdiction to deal with administrative cases belongs to the court of area where decision was issued or action were conducted. In case the place of issuing decision or conducting action is outside of Vietnam’s territory, jurisdiction to handle with this case belongs to Court of Hanoi or Hochiminh city. 22 In the case, if the procedure conducting persons of district court and provincial court have to refuse to participate in dealing with this case or are changed, Chief Judge of the court which is responsable for dealing with this case has to report to the Chief Judge of the higher court in order to transfer the other procedure conducting persons of other courts to deal with this case. Fourteenth, providing comprehensively the cases which are not accepted in accordance with regulations on conditions, forms of administrative redress and decentralization of jurisdiction to handle with administrative dispute. Fifteenth, providing specific and reasonable mechanism for exchanging information, cooperating between competent person of administrative complaint settlement and the courts in process of receiving, handling and accepting administrative dispute. 4.2.2. Concerning to aspect of law enforcement Dissertation proposes some necessary solutions for promoting law enfocement related to delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative cases, which includes: First, enhancing the leading role of Communist Party in process of dealing with administrative dispute. Second, promoting capacity of state organs to deal with administrative disputes. Third, promoting co-operation among state agencies in process of administrative dispute settlement. Fourth, enhancing effectiveness of examination, supervision, detection and settlement of violations in process of receiving, accepting, and handling with administrative dispute. Fifth, raising public legal awareness in administrative redress and administrative dispute settlement. Sixth, enhancing implementation of practical statistic on delimitation of jurisdiction to deal with administrative complaint, and jurisdiction to deal with administrative case. 23 CONCLUSION Administrative redress and administrative dispute settlement in Vietnam has been a special topic mentioned by Party, State and many legal scholars. Especially, delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative case is always defined as a key factor of administrative dispute mechanism and for ensuring the right to complaint and initiate of individual, organization. However, these two channels have been carried out and improved separately. Although previous studies mentioned about administrative redress and administrative dispute settlement but did not focus on delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative case in Vietnam. However, these studies illustrated arguments, scientific viewpoints related to some contents of this topic. Though studies did not provide comprehensive and consistent arguments, viewpoints however these studies were the grounds for dissertation to analyse, evaluate, and propose comprehensive and coherent recommendations for delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative case in Vietnam. In order to respond fully to the needs of administrative redress, Vietnam and many countries around the world have established and implemented various mechanisms for dealing with administrative disputes. When implementing two channels for dealing with administrative disputes, delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative case must be conducted comprehensively by scientific methods in both aspects: legal regulations on scope of administrative disputes and jurisdiction to deal with administrative dispute or jurisdiction to deal with administrative case relatively; and delimitation of jurisdiction to deal with administrative complaint or jurisdiction to adjudicate the specific administrative disputes. 24 Delimitation of jurisdiction to deal with administrative dispute and jurisdiction to deal with administrative case in Vietnam today has not yet implemented basing on the grounds of consistent science viewpoints; has not yet utilized advantages and limited disadvantages of each channel; has not yet responded to the needs of administrative redress which are increased annually and become more complicatedly; has not yet focused on harmonious interaction of two channels; has not yet met requirements including: reasonable delegation of power, essential co-ordination and tight supervision of state organs, and methods of administrative dispute settlement mechanism in rule of law state. Law on Complaint and Law on Administrative Court Procedure were just promulgated and come into effect recently. Good points of these laws, especially the contents, methods of legislation and successful application of these law into practice indicate the effort of Communist Party, State and legal scientists in Vietnam in reforming national public administration, justice system in order to build sussessfully rule of law socialist state that of the people, by the people, and for people. However, experiences of advanced countries around the world indicate that establishing and improving mechanism for administrative dispute settlement is a process that includes many stages in accordance with development process of all aspect of social-economic life, development process in comprehending fully administrative dispute and administrative dispute settlement. Research’s result indicate that: reforming contents, methods of providing legal regulations, and law enforcement related to delimitation of jurisdiction to deal with administrative complaint and jurisdiction to deal with administrative court is the most important task for building a rule of law state and global integration in Vietnam./. 25 CANDIDATE’S PUBLICATIONS RELATED TO THE THEME OF DISSERTATION 1. LLM. Nguyen Manh Hung (2005), "Defining the right to prosecute administrative case of Procuracy is necessary or not?", Jurisprudence Journal, (3), page. 15 - 20. 2. LLM. Nguyen Manh Hung (2007), "Ensuring the right to complaint and initiate administrative case and the issues of pre-court proceedings", Legal Professions Review, (3), page. 29 - 33. 3. LLM. Nguyen Manh Hung (2007), "Determining the petitioned person in administrative", Journal of Democratic and Legal (A Series of administrative complaint and redress), page. 7 - 9. 4. LLM. Nguyen Manh Hung (2009), "To improve legal regulations on conditions for accepting administrative complaint in public", Legal Professions Review (5), page. 52 - 58. 5. LLM. Nguyen Manh Hung (2010), "Shortcomings of legal regulations on settlement of land complaint", Inspective Journal, (6), page. 16 - 18; (7), page. 20 - 22. 6. LLM. Nguyen Manh Hung (2011), "Jurisdiction of the fisrt - instance court to deal with administrative case according to Law on Administrative Court Procedure - inheritance, development and issues improvement needed", Jurisprudence Journal, (9), page. 33 - 39. 7. LLM. Nguyen Manh Hung (2011), "Continuing to improve decentralization of jurisdiction of the first-instance court to deal with administrative case", Journal of democratic and legal, (9), page. 29 - 33. 8. LLM. Nguyen Manh Hung (2012), "Diversifying channels for resolving administrative disputes in Vietnam", Jurisprudence Journal, (9), page. 19 - 26. 9. LLM. Nguyen Manh Hung (2013), "Improving legal regulations on the case of returing petition in administrative case", Jurisprudence Journal, (2), page. 32 - 37. 10. LLM. Nguyen Manh Hung (2013), "Administrative complaint are not accepted according to Law on Complaint - Shortcoming and Improvement Solutions", Inspective Journal, (8), page. 9 - 11; (10), page. 41 - 43.

Các file đính kèm theo tài liệu này:

  • pdftom_tat_luan_an_ts_hung_tieng_anh_1228.pdf
Luận văn liên quan