Tóm tắt tiếng anh: Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.

Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.Quyền tiếp cận thông tin trong tố tụng hành chính ở Việt Nam.VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN TRUNG THANH RIGHTS OF ACCESS TO THE INFORMATION IN ADMINISTRATIVE PRODECURE IN VIETNAM Major Constitutional and Administra.

VIETNAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

NGUYEN TRUNG THANH

RIGHTS OF ACCESS TO THE INFORMATION IN ADMINISTRATIVE PRODECURE IN VIETNAM

Major : Constitutional and Administrative Laws Major code : 9.38.01.02

SUMMARY OF THE DOCTORAL THESIS IN

JURISPRUDENCE

Hanoi, 2022

THE WORK IS COMPLETED IN

GRADUATE ACADEMY OF SOCIAL SCIENCES

Supervisors 1: Assoc Prof PhD Le Mai Thanh

2: PhD Tran Kim Lieu

Opponent 1 : Prof PhD Pham Hong Thai

Opponent 2 : Assoc Prof PhD Vu Thu

Opponent 3 : Assoc Prof PhD Truong Ho Hai

The thesis will be defended in front of the Academy-level Thesis Assessment Committee held at Graduate Academy of Social Sciences - Vietnam Academy of Social Sciences

At ………., Date …… 2022

The thesis is vailable at:

PREAMBLE

1 The urgency of the thesis

In administrative procedure activity, to ensure the right of access to information means to ensure the sanctity of the law, the fundamental principles of the rule of law, human rights, citizenship rights and to protect social justice The right of access to information of the involved parties is one of the basic conditions to exercise citizenship rights and obligations, to live and work in compliance with the legal provisions, and

to protect legitimate interests recognized by law

However, in reality, the exercise of this right in general and in administrative procedure in particular in our country faces a number of problems and shortcomings, which do not meet the requirements of the new situation It has shown that the information published and provided

by state agencies is not adequate; people still encounter many difficulties when accessing to information On the other hand, the legal system on ensuring and exercising citizens’ right to access information in administrative proceedings still has many shortcomings, the law has not yet ensured the consistency and uniformity between the law on the right

to access information and the right of access to information in administrative proceedings, the provisions of legal responsibilities in ensuring the exercise of the rights and obligations of the litigants to access information are not specific…

Therefore, the PhD student has chosen the thesis on "The right

of access to information in administrative procedure in Vietnam" to

carry out a comprehensive study in terms of theory as well as practice

on the rights of access to information in administrative procedure in Vietnam today

2 The purposes and and tasks of the research

2.1 Research purposes

Assess the actual status of legal provisions and implementation

of legal provisions on the right of access to information in administrative procedure; thereby recommend solutions to ensure the right of access to information in administrative procedure in Vietnam

2.2 Research tasks

- Research and clarify the concept, characteristics, roles and contents of the right of access to information in administrative procedure and the mechanisms to exercise the right of access to information in administrative procedure

- Assess the current status of legal provisions and implementation

of legal provisions on the right of access to information in administrative procedure in Vietnam today

- Propose directions and solutions to ensure the right of access to information in administrative procedure in Vietnam

3 The objectives and scope of the research

3.1 Research objectives

The thesis’s research objectives include:

- Scientific viewpoints, jurisdential thought on the rights of access to information in administrative procedure

- Vietnamese policies and laws to ensure the right of access to information in administrative procedure in Vietnam today

- The practical application of the rights of access to information

in administrative procedure currently in Vietnam

3.2 Research scope

About the content of reserach: The thesis studies the right of access

to information in administrative procedure, focusing on the right of access

to information of individuals who initiate administrative lawsuits

About the location of research: The thesis focuses on researching the

rights of access to information in administrative procedure in Vietnam

About the period of research: From 2015 when the Law on

Administrative Procedure 2015 and Law on Access to Information 2016

was enacted

4 Methodology and Research methods

4.1 Methodology: To achieve the research purpose, the thesis uses

dialectical and historical materialism methodology in combination with human rights-based approach, as well as the idea of establishing Vietnam socialist rule-of-law-state to serve as theoretical basis for the research

4.2 Research method: The PhD student uses the observation,

comparative jurisprudence; analysis, synthesis and specific historical methods to research the contents of the thesis

5 New scientific contributions of the thesis

Firstly, the thesis has researched, developed and given the viewpoint/concept, characteristics, as well as the contents and basic

principles of the right to access information in administrative procedure Secondly, the thesis is the only scientific work on the practice of

ensuring the right to access information in administrative procedure

Thirdly, the thesis has proposed directions and solutions to

improve the law in order to ensure the right to access information in administrative procedure in Vietnam in the coming time

6 Theoretical and practical significance of the thesis

- Theoretical significance: The research results have made

significant contribution to clarifying the concepts, position, role, contents and conditions for ensuring the rights of access to information

in administrative procedure

- Practical significance: The thesis is a valuable reference

material for researching and teaching in administrative law in general

and administrative procedural law in particular

7 Structure of the thesis

Excluding the preamble, conclusion and list of reference materials, the thesis is structured into 4 chapters

Chapter 1: Overview of the research situations and issues raised

1.1 Overview of the research situation

It can be seen that there has not been many studies directly deal with the right of access to information in administrative procedure However, in certain aspects, other studies have partly mentioned the theoretical issues, the current status and solutions about the right of access to information in administrative procedure Previous studies are an important foundation to study and clarify the fundamental theoretical issues about the rights of access to information in administrative procedure

1.2 Some issues have not been properly studied in relation with the thesis contents

Currently, most studies only stop at the right of access to information from the perspective of a civil and political right In term of

information provision responsibility, the majority of domestic studies mainly focus on a sole subject: the State With regards to the content of the right of access to information, the other authors have not yet given convincing arguments

The previous studies had very few systematic research in terms of theory and practice for the right of access to information in administrative procedure in Vietnam today Some have initially assessed the status of the right of access to information in administrative procedures, but only briefly mentioned in a number of journal articles

or in theises and scientific reports from certain research perspectives; they have not deeply evaluated the current situation and proposed useful solutions to ensure the right of access to information in administrative procedure

1.2.3 Issues that need to be resolved in the thesis

Firstly, analyze and clarify the theoretical basis, characteristics

and contents of the right of access to information in administrative procedure

Secondly, assess the legal actual status and implementation of the

law on the right to access information in administrative procedure, point out the advantages and limitations in organization to exercise this right

in Vietnam today

Thirdly, propose some directions and solutions to improve

policies and laws in order to ensure the right of access to information in administrative procedure in Vietnam in the coming time

1.3 The research’s theoretical basis, hypothesis and questions

1.3.1 The research’s theoretical basis

The thesis uses the theoretical basis of human rights, mainly the human rights-based approach

1.3.2 The research’s hypothesis and questions

The research’s hypothesis:

Currently, the right of access to information in administrative procedure are not fully identified from the perspective of the subject, scope, content and method of exercising the rights

In fact, the right of access to information in administrative procedure have not been ensured in terms of both legal provisions and enforcement, and it is essential to propose comprehensive and appropriate solutions to ensure the right of access to information in administrative procedure in Vietnam today

Improvement of the law and enhancement of the efficiency of enforcement of the law on the right of access to information in administrative procedure in Vietnam today

The research’s questions:

- What are the right of access to information in administrative procedure? What are the characteristics, roles, contents, principles to ensure the right of access to information in administrative procedure?

- What is the current status of the right of access to information in administrative procedure in Vietnam today?

- What are the directions and solutions to ensure the right of access to information in administrative procedure in Vietnam today?

CHAPTER 2 THEORETICAL ISSUES OF THE RIGHT OF ACCESS TO INFORMATION IN ADMINISTRATIVE PROCEDURE

2.1 The concepts, characteristics and roles of the right of access to information in administrative procedure

2.1.1 The concepts of the right of access to information in administrative procedure

2.1.1.1 The concepts of the right of access to information

The right of access to information is the citizens’ rights to seek, receive and impart the information promulgated and preserved by the state competent authorities in compliance with the legal provisions

2.1.1.2 The concepts of administrative procedure

Administrative procedure is the handling order of administrative cases in compliance with the legal provisions at the court in order to settle complaints against administrative decisions and actions of state agencies, civil servants and competent officials

2.1.1.3 The concepts of the right of access to information in administrative procedure

The the right of access to information in administrative procedure

is the involved parties’ rights to seek, take note, copy, impart and make use of documents and evidences from competent agencies, organizations and individuals in order to protect their own legitimate rights and interests when participating in administrative procedure

2.1.2 Characteristics of the right of access to information in administrative procedure

Firstly, the right of access to information in administrative procedure

is one of the basic rights of the involved parties stipulated and recognized by the law

Secondly, subjects related to the right of access to information in

administrative procedure include those that exercise their right of access

to information, those that ensure their right of access to information and those providing information

Thirdly, the scope of information to be accessed in administrative

procedure includes information about evidences in administrative cases, information about the rights and obligations of subjects participating in administrative procedure, information about trials, enforcement of administrative judgments

Fourthly, the right of access to information is the right that can be

restricted by law

2.1.3 The role of the right of access to information in administrative procedure

Firstly, the right of access to information in administrative

procedure contributes to ensuring human rights, legitimate rights and interests of citizens toward establishing a socialist rule-of-law state

Secondly, the right of access to information in administrative

procedure contributes to conducting the State's responsibilities to citizens, thereby enhancing the State's prestige for the people and the society

Thirdly, the right of access to information in administrative

procedure contributes to the prevention and combat against corruption and negative behaviours in the operations of the state apparatus, officials and civil servants

Fourthly, the right of access to information in administrative

procedure contributes to improving the efficiency of state’s administrative management activities

2.2 Contents of the right of access to information in administrative procedure

2.2.1 The right to seek information in administrative procedure

The right to seek information refers to the ability of the “right holder” to be permitted to request the “obligation holder” to provide the information that he or she needs or is interested in, to the extent prescribed by law This right is associated with the information provision

responsibility by the “obligation holder” at the request of the “right holder” The right to seek information is considered as one of the conditions in ensuring the receipt of information The reason is that, other than the information published in accordance with legal provisions, a lot

of information will only be provided at the request of individuals and organizations because such information may only related to the rights and interests of a number of individual and organization The right holders

of the information can only search and collect information upon their request to the competent state agencies that store such information In term of administrative procedure, the information that the involved parties have the right to actively collect are documents and evidences directly related to the administrative case During the process of seeking information, the court is responsible for supporting and conducting collection and verification of evidence; or requesting agencies, organizations and individuals to provide documents and evidences to the Court or involved parties

2.2.2 The right to receive information in administrative procedure

The right to receive information indicates that individuals, organizations and agencies have the right to receive information that is correct, sufficient and timely and easily accessible The right to receive information requires the information holding agencies to be responsible for disclosing information as well as creating favorable condition to the receiver of such information The subjects who are entitled to receive information include: individuals, agencies, organizations The subjects who are responsible to disclose information are state agencies that have created information or obtained information while performing their task

2.2.3 The right to impart information in administrative procedure

The involved parties’ right to impart information in administrative procedure is the process of the involved parties disclosing documents and evidences to the Court and establishing a shared access to documents and evidences between involved parties in preparation for the judgment of administrative cases The involved parties’ right to impart information also includes the process of sharing information with other involved parties about the documents and evidences that he/she has collected The involved parties and the defence councels of their legitimate rights and interests have the right

to collect, hand over and provide documents and evidences at the

begining of the administrative case and are obligated to notify each other of the submitted documents and evidences

2.3 Principles to ensure the right of access to information in administrative procedure

- All subjects are equal in the access to administrative procedural information

- Information provided in administrative procedure must be provided in an accurate, complete and transparent manner

- Information in administrative procedure must be provided timely

- Privacy, State secrets and limits of human rights must be ensured and respected

2.4 Conditions and mechanisms to ensure the right of access

to information in administrative procedure

2.4.1 Conditions to ensure the right of access to information in administrative procedure

- Awareness of the right to access the information in administrative procedure

3.1.1 The current status of legal provisions and the implementation of the right to seek information in administrative procedure in Vietnam today

3.1.1.1 Legal status of the right to seek information in administrative procedure

First of all, the right to seek information of the involved parties is reflected through the initiative in collection of documents and evidences This is stipulated in Clause 1 Article 9 and Clause 2 Article 18 of the Law

Measures to seek information: The Law on Administrative

Procedures 2015 stipulates measures to collect evidences from individuals, agencies and organizations to ensure that involved parties have enough evidence to provide to the Court as well as to ensure that such evidences are legal, including: Collection of readable, audible, and visible documents, electronic data messages; Collect evidences; Identify witnesses and obtain witnesses' confirmations; Request the Court to collect documents and evidences if the involved parties cannot collect them

Other than the involved parties of the administrative case, the defenders of the involved parties' rights and interests are also entitled to seek and collect documents and evidences such as: examiners, prosecutor, lawyers, legal assistants or legal assisting participants in accordance with the law on legal assistance, witness, appraisal

3.1.1.2 Exercising the right to seek information in administrative procedure in fact

According to the data collected from the report of the Supreme People's Court on the performance of the Court from 2016 to 2021, it can

be seen that administrative cases in recent years have increase in number,

mainly related to complaints about administrative decisions and administrative actions on land management such as land acquisition, site clearance, compensation, resettlement support thereby showing the compliance with the law, the understanding of the law on administrative procedures is increasingly improving

While participating in administrative procedure, the involved parties are explained by the People's Court about their rights and obligations, including the rights to seek information to discover the objective truth of the administrative case in an accurate, prompt and correct manner However, in practice, the right to seek information of the involved parties in administrative procedure still faces certain difficulties One of the three biggest problems in settling administrative cases is that: the involved parties’ ability to collect information; some agencies and organizations have not fully cooperated with the Court, even neglected their responsibilities in providing documents, evidences, verifications, participating in evaluation of properties as requested; The involved parties cannot seek information and collect evidences by themselves to protect their legitimate rights and interest

3.1.2 Current status of legal provisions and the application of the right to receive information in administrative procedures in Vietnam today

3.1.2.1 Current status of legal provisions on exercising the rights

to receive information in administrative procedures

Citizens' right to receive information is recognized in Clause 1, Article 29 of the Law on Access to Information 2016; Clause 8 Article

55 of Law on Administrative Procedure 2015

Some specialized laws have mentioned the right to receive information such as:

The right to receive information publicly announced by state agencies is reflected in a number of documents such as: Article 131 of Law on

Environmental Protection 2014; Clause 2, Article 55 of the Law on Promulgation of Legal Documents in 2015 and its amendment and supplement

in 2020; Clause 1, Article 31 of the Law on Accounting in 2015

The right to receive information through requesting for infcormation from state agencies: Article 14, Law on Anti-Corruption

2018; Article 38, Article 39 of the Law on Press 2016,