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.
Trang 1VIET 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
Trang 2The 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
Trang 31.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
3
Trang 4shortcomings, 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 thesettlement of administrative complaints in Ha Nam province.From there, propose solutions to ensure the implementation of theburden of proof in the settlement of administrative complaints inVietnam today
2.2 Research task: The thesis studies a number of domestic and foreign
scientific researches related to the topic Research on the theoreticalissues of the burden of proof in the settlement of administrativecomplaints Research on the legal status of the burden of proof inadministrative complaint settlement and the implementation of theburden of proof in administrative complaint settlement in Ha Namprovince from 2012 to 2021 Thereby, giving viewpoints and solutions
to ensure the fulfillment of the burden of proof in the settlement ofadministrative 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 of administrativecomplaints; legal status and the implementation of the burden ofproof in the settlement of administrative complaints from practice in
Ha Nam province
Trang 53.2 Research Scope
- Content scope: studying the performance of the burden of proof incomplaint settlement in the stages of administrative complaintsettlement from the receipt and handling of the application to thefinal 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 the Partyand 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 the CommunistParty of Vietnam on building Socialist rule of law, on administrativereform strategy, on complaints and administrative complaintsettlement In which, dialectical materialism is the main method,used throughout the thesis
4.2.2 Research Methodology: To achieve the research objectives set out,
the PhD student uses the current popular social science researchmethods as follows: analysis, synthesis and comparison methods; phrun summarizing legal practice; p incense investigation measures(expert interview),
Trang 65.New scientific contributions of the thesis: The thesis
contributes to the theory of the burden of proof in thesettlement of administrative complaints in our country andthe practice of amending and supplementing a number ofprovisions of the current Law on Complaints and otherlegal documents relevant to the exercise of the burden ofproof in the settlement of administrative complaints.Proposing solutions to ensure the implementation of theburden of proof in the settlement of administrativecomplaints in Vietnam in the current period
6 Theoretical and practical contribution of the thesis
- In terms of theory, the thesis contributes to building the theory andlegal basis for the burden of proof in the settlement of stateadministrative complaints ;
- In practice, the competent authorities can exploit and apply toimprove the quality and efficiency of performing the responsibility ofproof in the settlement of administrative complaints in the locality aswell as in the whole country
7.Structure of the thesis: addition to tracking the index, the
list of abbreviations and reference lists, thesis layoutconsists of 3 parts, including the preamble; The thesiscontent has 04 chapters, the last part is the conclusion
7.1.1.Chapter 1 The situation of scientific research related to
the thesis; Chapter 2 Theoretical issues about the burden of proof inthe settlement of administrative complaints; Chapter 3 Actualsituation 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
Trang 71.1.1 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
7.1.5.In Vietnam so far, there are not many documents and
research works on the theory of the responsibility of proof in thesettlement of administrative complaints A number of research worksdirectly related to this issue of the Government Inspectorate and otherresearch institutions 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, and
7.1.6.scientific articles However, the research results of these works
have an important reference value, which is one of the bases forresearchers to build a theoretical framework on the burden of proof inadministrative complaint settlement
- Group of other related research works
7.1.7.The PhD student focuses on researching scientific
works on the burden of proof in the process of resolving legaldisputes in the fields of criminal proceedings, civil proceedings,administrative
Trang 87.1.8.proceedings and evaluation documents Practical evaluation of
the performance 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: Within
the scope of the thesis topic, the author studies anumber of theories as well as foreign scientific worksthat are directly or indirectly related to the burden ofproof in the settlement of administrative complaints.The research works focus on clarifying the performance
of the burden of proof in the settlement ofadministrative complaints based on the provisions ofthe law; The implementation of the burden of proofdepends on the legal system of each country, there arespecific provisions on the form of legal disputeresolution between the state and the people, which iscarried out by a particular body, according to the law.There is a stipulation on the burden of proof ofcompliance
1.2 Evaluation of the research situation related to the thesis topic:
The research work abroad has provided the PhD student with acomprehensive view of the point of view of the burden of proof inthe resolution of legal disputes carried out by different procedures(within there is an administrative complaint settlement procedure).Domestic research works have provided graduate students withinitial awareness of the burden of proof in administrative complaintsettlement in Vietnam From there, inherit the clarified issues and
Trang 9continue to study the unresearched issues.
Trang 101.3 Issues that need further research: On the basis of absorbing and
inheriting research results of previous studies, the thesis continues to studythe following contents:
1.4 Firstly, the theoretical issues of the law on the burden
of proof in the settlement of administrative complaints;
1.5 Secondly, analyze and evaluate the legal status of the
burden of proof in the settlement of administrative complaints andthe practice of performing the burden of proof in the settlement ofadministrative complaints in Ha Nam province (since 2011) until theend of 2021);
1.6 Thirdly, give opinions and solutions to improve the
law, ensure the implementation of the burden of proof in thesettlement of administrative complaints
Trang 111.8.
1.9.
1.10 Chapter 2 1.11.THEORETICAL ISSUES ABOUT THE BURDEN OF PROOF IN SETTLEMENT OF ADMINISTRATIVE
COMPLAINTS 1.12.
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, agencies and
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
1.13 It can be seen that, stemming from the protection of
their legitimate 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 by which thesubjects prove on the basis of the provisions of law on complaintsand administrative complaint settlement to detect, collect,
Trang 12- examine and evaluate and use that evidence as a basis todetermine the objective truth about the content of the case to beresolved.
- The burden of proof in the settlement of administrative complaints isunderstood as the obligation of the complainant, the complainant, thecomplaint settler, and the person with related rights and obligations
to clarify the details and facts to determine the objective truth of thecase 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 complaintsappears 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
Trang 13a) 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 administrative complaints isthe synthesis of actual facts and circumstances reflecting thelegitimacy and rationality of the complained administrative decision
or administrative act, serving as a basis for the settlement ofadministrative complaints The settlement of the
Trang 14- administrative complaint case should be determined byevidence during 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 complainedadministrative decision or administrative act
2.3.2 Proving content
a) Issues to prove about the complaint conditions, including: proving
the eligibility of the complainant; demonstrate eligibility for thecomplaint procedure and demonstrate that the statute of limitationsfor filing a complaint remains within the statute of limitations
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 subjects with 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 issuing decisions
- For complained administrative acts : including acts of action and acts ofinaction