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Trách nhiệm chứng minh trong giải quyết khiếu nại hành chính từ thực tiễn tỉnh Hà Nam.Trách nhiệm chứng minh trong giải quyết khiếu nại hành chính từ thực tiễn tỉnh Hà Nam.Trách nhiệm chứng minh trong giải quyết khiếu nại hành chính từ thực tiễn tỉnh Hà Nam.Trách nhiệm chứng minh trong giải quyết khiếu nại hành chính từ thực tiễn tỉnh Hà Nam.Trách nhiệm chứng minh trong giải quyết khiếu nại hành chính từ thực tiễn tỉnh Hà Nam.Trách nhiệm chứng minh trong giải quyết khiếu nại hành chính từ thực tiễn tỉnh Hà Nam.

VIET NAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

Truong Van Truong

THE BURDEN OF PROOF IN THE SETTLEMENT OF ADMINISTRATIVE COMPLAINS FROM PRACTICE

The thesis is complete at Graduate academy of social sciences

Supervisor: Prof Dr Thai Vinh Thang

Reviewer 1: Assoc.Prof., Dr Vu Trong Lam

Reviewer 2: Assoc.Prof., Dr Truong Ho Hai

Reviewer 3: Dr Nguyen Tuan Khanh

Specialized major: Constitutional Law and Administrative Law Code: 9380102

The thesis shall be defended in front of the Thesis Committee

at Academy Level at At hour date month year 2022

The thesis can be found at

INTRODUCTION

1.The necessity of the thesis

Complaints are one of the basic rights of citizens, a tool toprotect and restore the rights and interests of citizens, agencies andorganizations; Complaint settlement in accordance with theConstitution and the law will contribute to the protection of humanrights and citizens' rights, well settle the relationship between thestate and citizens, and ensure administrative justice is carried out inthe country reality.Therefore, when a complaint arises, it means that anadministrative dispute needs to be resolved, but the outcome of thesettlement depends on the disputing parties proving the truth of the case

In accordance with the law and in accordance with reality, the proof isthe responsibility of the parties involved in the complaint settlementprocess As a basis for deciding to settle complaints, however, thisactivity in practice still has many shortcomings, first of all, the currentlegal system on complaints of our country already has regulations.Regarding the burden of proof, these regulations are still not really clear,scattered, lack of systematicity, asynchronous in the responsibility ofproof in the settlement of administrative complaints In theory, the act ofproof in administrative complaint settlement mainly applies the theory

of other branches of law, there have not been many studies on theburden of proof in administrative complaint settlement

In Ha Nam, in recent years, the implementation of the burden

of proof in the settlement of administrative complaints has seen manypositive changes, notably the issue of democratic publicity and equality

in the complaint settlement process in general and the proof process inparticular is guaranteed However, practice still reveals many

shortcomings, limitations in theory, and arbitrary status in theperformance of the burden of proof in the settlement of specificadministrative complaints Therefore, the graduate student chooses

the research "The burden of proof in settlement of administrative complaints from practice in Ha Nam province" as the topic of his

doctoral thesis

2.Research purpose and resarch task

2.1.Research purpose: The thesis systematically studies the

theoretical and practical issues of implementing the burden of proof

in the settlement of administrative complaints in Ha Namprovince From there, propose solutions to ensure the implementation

of the burden of proof in the settlement of administrative complaints

in Vietnam today

2.2.Research task: The thesis studies a number of domestic

and foreign scientific researches related to the topic Research on thetheoretical issues of the burden of proof in the settlement ofadministrative complaints Research on the legal status of the burden

of proof in administrative complaint settlement and theimplementation of the burden of proof in administrative complaintsettlement in Ha Nam province from 2012 to 2021 Thereby, givingviewpoints and solutions to ensure the fulfillment of the burden of proof

in the settlement of administrative complaints

3.Research subject and research Scope

3.1.Research subject: The research object of the thesis is

the theoretical issues of the burden of proof in the settlement ofadministrative complaints; legal status and the implementation of theburden of proof in the settlement of administrative complaints frompractice in Ha Nam province

3.2.Research Scope

-Content scope: studying the performance of the burden ofproof in complaint settlement in the stages of administrativecomplaint settlement from the receipt and handling of the application

to the final stage of the decision to settle the case ;

-Spatial scope: research on Ha Nam province;

-Time range: the study covers the period from 2012 to 2021

4.Theoretical basis and research methodology

4.1.Theoretical basis: The thesis is researched based on the

point of view of Marxism-Leninism, Ho Chi Minh's thought and theParty and State's views on the state and law, on justice; "rights-basedapproach" (HRBA), the theoretical system of the Constitutional Lawand the Administrative Law, in which the theory of complaints andsettlement of administrative complaints play the leading role, serving

as the basis of the thesis research

4.2.Research Methodolody

4.2.1.Methodology: The thesis is researched on the basis of

dialectical materialism and historical materialism of Marxism Leninism and Ho Chi Minh's thought, the viewpoints and lines of theCommunist Party of Vietnam on building Socialist rule of law, onadministrative reform strategy, on complaints and administrativecomplaint settlement In which, dialectical materialism is the mainmethod, used throughout the thesis

-4.2.2.Research Methodology: To achieve the research

objectives set out, the PhD student uses the current popular socialscience research methods as follows: analysis, synthesis andcomparison methods; ph run summarizing legal practice; p incenseinvestigation measures (expert interview),

5. New scientific contributions of the thesis: The thesis

contributes to the theory of the burden of proof in the settlement ofadministrative complaints in our country and the practice ofamending and supplementing a number of provisions of the currentLaw on Complaints and other legal documents relevant to theexercise of the burden of proof in the settlement of administrativecomplaints Proposing solutions to ensure the implementation of theburden of proof in the settlement of administrative complaints inVietnam in the current period

6.Theoretical and practical contribution of the thesis

- In terms of theory, the thesis contributes to building thetheory and legal basis for the burden of proof in the settlement ofstate administrative complaints ;

-In practice, the competent authorities can exploit and apply

to improve the quality and efficiency of performing the responsibility

of proof in the settlement of administrative complaints in the locality

as well as in the whole country

7.Structure of the thesis: addition to tracking the index, the

list of abbreviations and reference lists, thesis layout consists of 3parts, including the preamble; The thesis content has 04 chapters, thelast part is the conclusion

Chapter 1 The situation of scientific research related to thethesis; Chapter 2 Theoretical issues about the burden of proof in thesettlement of administrative complaints; Chapter 3 Actual situation

of the law and implementation of the burden of proof in thesettlement of administrative complaints in Ha Nam province;Chapter 4 Viewpoints and solutions to ensure the fulfillment of theburden of proof in the settlement of administrative complaints

Chapter 1 THE SITUATION OF SCIENTIFIC RESEARCH

RELATED TO THESIS

1.1.The situation of scientific research related to the burden of proof in the settlement of administrative complaints

1.1.1.Status of scientific research in the country

- A group of research works related to the theory of the burden of proof in the settlement of administrative complaints

In Vietnam so far, there are not many documents and researchworks on the theory of the responsibility of proof in the settlement ofadministrative complaints A number of research works directlyrelated to this issue of the Government Inspectorate and other researchinstitutions basically only deal with this issue as a part wheninterpreting rights and interests the obligations of the subjectsparticipating in the administrative complaint settlement process,typically some inspection documents of the School of Inspectors, orthe textbook on inspection and settlement of complaints anddenunciations of the Inspector General Hanoi Law University, andscientific articles However, the research results of these works have

an important reference value, which is one of the bases for researchers

to build a theoretical framework on the burden of proof inadministrative complaint settlement

-Group of other related research works

The PhD student focuses on researching scientific works onthe burden of proof in the process of resolving legal disputes in thefields of criminal proceedings, civil proceedings, administrative

proceedings and evaluation documents Practical evaluation of theperformance of the burden of proof in administrative complaintsettlement in Ha Nam province from 2012 to the end of 2021.Thereby inheriting the common problems of the burden of proof inother legal disputes and comparisons Compare and contrast theburden of proof in the settlement of administrative complaints todevelop theoretical problems and solutions to ensure effectiveimplementation in practice.

1.1.2.The situation of scientific research abroad: Withinthe scope of the thesis topic, the author studies a number of theories aswell as foreign scientific works that are directly or indirectly related tothe burden of proof in the settlement of administrative complaints Theresearch works focus on clarifying the performance of the burden ofproof in the settlement of administrative complaints based on theprovisions of the law; The implementation of the burden of proofdepends on the legal system of each country, there are specificprovisions on the form of legal dispute resolution between the stateand the people, which is carried out by a particular body, according tothe law There is a stipulation on the burden of proof of compliance

1.2.Evaluation of the research situation related to the thesis topic: The research work abroad has provided the PhD student

with a comprehensive view of the point of view of the burden ofproof in the resolution of legal disputes carried out by differentprocedures (within there is an administrative complaint settlementprocedure) Domestic research works have provided graduatestudents with initial awareness of the burden of proof inadministrative complaint settlement in Vietnam From there, inheritthe clarified issues and continue to study the unresearched issues

1.3.Issues that need further research: On the basis of

absorbing and inheriting research results of previous studies, the thesiscontinues to study the following contents:

Firstly, the theoretical issues of the law on the burden of

proof in the settlement of administrative complaints;

Secondly, analyze and evaluate the legal status of the burden

of proof in the settlement of administrative complaints and thepractice of performing the burden of proof in the settlement ofadministrative complaints in Ha Nam province (since 2011) until theend of 2021);

Thirdly, give opinions and solutions to improve the law,

ensure the implementation of the burden of proof in the settlement ofadministrative complaints

Chapter 2 THEORETICAL ISSUES ABOUT THE BURDEN OF PROOF

IN SETTLEMENT OF ADMINISTRATIVE COMPLAINTS

2.1.The concept, characteristics, meaning and basis of the

burden of proof in the settlement of administrative complaints

2.1.1 The concept of administrative complaints and settlement of administrative complaints

- Administrative complaints are the individuals, agenciesand organizations that require the agency managing the stateadministrative review of administrative decisions, administrative acts

or disciplinary decisions of officials and servants when there aregrounds to believe that such decisions or acts are illegal, directlyinfringing upon their legitimate rights and interests

-Settlement of administrative complaints means the handling,verification, conclusion and decision-making on complaint settlement

It can be seen that, stemming from the protection of theirlegitimate rights and interests, the subjects participating in theprocess of settling administrative complaints are guaranteed by law

to exercise their rights associated with the responsibility to clarify thefacts of the case to serve as a basis for settlement

2.1.2.The concept of burden of proof in administrative

complaint settlement

-Proof in administrative complaint settlement is a process bywhich the subjects prove on the basis of the provisions of law oncomplaints and administrative complaint settlement to detect, collect,

examine and evaluate and use that evidence as a basis to determinethe objective truth about the content of the case to be resolved.

- The burden of proof in the settlement of administrativecomplaints is understood as the obligation of the complainant, thecomplainant, the complaint settler, and the person with related rightsand obligations to clarify the details and facts to determine theobjective truth of the case to be resolved

- Characteristics of the burden of proof in the settlement of

administrative complaints, including: firstly, the burden of proof

in the settlement of administrative complaints prescribed by the law

on administrative complaints; secondly, the burden of proof in the

settlement of administrative complaints appears when the

complainant exercises his or her right to complain; thirdly, the

complainant is always the first person responsible for proving at the

settlements; Fourthly, the burden of proof is done in a sequence, strict procedures; Fifthly, carrying out the burden of proof in the

settlement of administrative complaints is not only to protectpersonal interests but also to protect public interests

-The meaning of the burden of proof in the settlement of administrative complaints: performing well the responsibility of

proof contributes to ensuring democracy in the settlement ofadministrative complaints; ensure the implementation of theprinciple of presumption without administrative violations; is themost important basis for assessing the legitimacy and rationality ofthe complained administrative decision or administrative act

2.1.3.The basis of the burden of proof in the settlement

of administrative complaints

a)Scientific basis: The burden of proof in the settlement of

administrative complaints has the following scientific bases:

- Firstly, the reflection of information on the case of

administrative law violation;

- Secondly, the law on the formation, repetition, existence

and disappearance of information about the administrative lawviolation case;

-Thirdly, Reliable laws exist and disappearance of information on

cases of violation of administrative law

b) Methodological basis: The burden of proof in the

settlement of administrative complaints has a methodological basis

as follows:

- Firstly, the principle of the ability to perceive the truth in

the settlement of administrative complaints;

-Secondly, the principle of objectivity and comprehensiveness;

-Thirdly, the principle of movement and development ;

-Fourthly, specific historical principles.

c) The legal basis for the performance of the burden of proof in the settlement of administrative complaints

2.3.Subjects, contents and subjects are responsible for proving and evidence to prove it

2.3.1.Proving subject

- The subject of proof in the settlement of administrativecomplaints is the synthesis of actual facts and circumstancesreflecting the legitimacy and rationality of the complainedadministrative decision or administrative act, serving as a basis forthe settlement of administrative complaints The settlement of the

administrative complaint case should be determined by evidenceduring the settlement of the administrative complaint case.

-Subjects of proof include:

+ Firstly, the group of object prove valuable to clarify status of

complaints;

+ Second , the group of objects of valuable evidence to

clarify the legitimacy of the complained administrative decision oradministrative act;

+ Third, the group of objects of valuable evidence to clarify

the correctness (reasonability) of the complained administrativedecision or administrative act

b)Issues to be proved as a basis for assessing the legitimacy

of the complained administrative decision or administrative act

- For the complained administrative decision, the subjectswith the burden of proof must prove the following basic

issues: firstly, on the authority to issue the decision ; h who, on the

statute of limitations, duration, order and procedures for issuingdecisions

- For complained administrative acts : including acts of actionand acts of inaction