Đảm bảo quyền con người thông qua hoạt động kiểm tra văn bản quy phạm pháp luật ở việt nam hiện nay ttta

After 20 years of implementation, legal document review activities have made an important contribution to protecting the legitimate rights and interests of people and businesses, and hav

VIET NAM ACADEMY OF SOCIAL SCIENCES

GRADUATE ACADEMY OF SOCIAL SCIENCES

NGUYEN THI THU HOE

ENSURING THE HUMAN RIGHTS THROUGH REVIEWING LEGAL DOCUMENTS ACTIVITIES

The work was completed at Graduate Academy of Social Sciences Vietnam Academy of Social Sciences

Science Instructor: Assoc Prof., Dr Bui Thi Dao

Reviewer 1: Assoc Prof., Truong Ho Hai

Reviewer 2: Assoc Prof., Vu Cong Giao

Reviewer 3: Dr Nguyen Linh Giang

The thesis is defended before the Academy-level Thesis Examining Council, meeting at the Academy of Social Sciences

At hour , day month 2023

The thesis can be found at the National Library

and Library of the Academy of Social Sciences

PREAMBLE

1 Urgency of the research topic

Human rights are natural human rights that cannot be taken away by anyone or any regime “In the Socialist Republic of Vietnam, human rights, political, civil, economic, cultural and social rights are recognized, respected, protected and guaranteed according to the Constitution and the law”;

“Human rights and civil rights can only be limited according to the provisions of law in cases of necessity for reasons of national defense, national security, social order and safety, social ethics, and health of the community” (Article 14 of the 2013 Constitution) Furthermore, these rights are also implemented in practice by being institutionalized in specific laws and guided by a system of by-law documents

However, with a multi-layered system of legal documents (legal documents), promulgated by many competent agencies and organizations at both the central and three levels of local government, there are a large number of documents promulgated every year in Vietnam In addition to constitutional and legal documents, there is also a large proportion of documents that do not meet this requirement, among them are regulations significantly violating human rights and basic rights of citizens (for example, the regulation that each person residing in 4 urban districts of Hanoi can only own one motorbike; when holding a wedding, only relatives can be invited) necessary, do not hold wedding parties multiple times, do not invite wedding parties during working hours; each funeral can only use no more than 7 wreaths ) In order to detect and promptly handle illegal contents of documents, to ensure human rights, reviewing legal documents is considered effective and practical Through the review of legal documents, human rights are guaranteed by competent state agencies concluding and handling documents and legal document contents that violate or obstruct human rights and basic rights of citizens Activities of reviewing legal documents began to

be carried out in 2003 according to the provisions of the 1992 Constitution (amended and supplemented in 2001), the Law on Government Organization

2001, and the 2002 Law on Promulgation of Legal Documents and guidance

in Decree No 135/2003/ND-CP dated November 14, 2003 of the Government on review and handling of legal documents Up to now, it has been implemented according to the provisions of the 2013 Constitution and the 2015 Law on Government Organization, Law on Promulgation of Legal Documents 2015 (amended and supplemented in 2020) and Decree No 34/2016/ND-CP dated May 14, 2016 detailing and guiding the

implementation of this Law (amended and supplemented by Decree No 154/2020/ND-CP dated December 31, 2020)

After 20 years of implementation, legal document review activities have made an important contribution to protecting the legitimate rights and interests of people and businesses, and have been supported by public opinion; contributing

to raising awareness and operational efficiency of state management agencies, helping these agencies strictly comply with discipline in the process of drafting and promulgating documents, ensuring legality in directing and administrating activities, ensuring the constitutionality and legality of the legal system, ensuring human rights and basic rights of citizens The participation and intelligence of society in detecting and reflecting on illegal and unfeasible contents of documents are mobilized in activities of reviewing legal documents Through that, citizens have the right to report and request competent authorities to review, handle legal documents, ordinary administrative documents containing legal terms that infringe upon their legitimate rights and interests

as recognized by the Constitution and the law

However, reviewing and handling illegal documents and ensuring human rights in recent times is only the result of the document reviewing activity itself, without the orientation and scope of an activity to ensure human rights Therefore, although it has been implemented for nearly twenty years, in many competent agencies, the implementation is still limited, many people still do not properly understand legal document reviewing activities, so they still have not used or ineffective used this activity in ensuring human rights Therefore, researching and improving the effectiveness of ensuring human rights through reviewing legal documents as an activity to ensure human rights is very necessary, stemming from the need from both sides: the state and the people, especially in the current period, Resolution No.27-NQ/TW dated November 9,

2022 of the 6th Conference of the 13th Party Central Committee on continuing to build and perfect the socialist rule-of-law state Vietnam in the new period with goal: “Improving the Vietnamese socialist rule-of-law state

of the People, by the People, for the People, led by the Communist Party of Vietnam; have a complete legal system that is strictly and consistently implemented; uphold the Constitution and the law, respect, ensure and effectively protect human rights and citizens' rights.” Because of the urgency

of the problem, the author chose to research the topic: “Ensuring human rights through reviewing legal documents in Vietnam” as the doctoral thesis

2 Research purpose and tasks

2.1 Purpose of the thesis

Based on theoretical research and practical assessment of ensuring human rights through review of legal documents in Vietnam today, the thesis

recommends solutions to improve the effectiveness of ensuring human rights people through the review of legal documents, making the review of legal documents truly a tool to ensure human rights, making a worthy contribution to the process of building socialist rule-of-law state rights in Vietnam

2.2 Thesis mission

- Clarifying the concept of ensuring human rights through activities of reviewing legal documents and the relationship between activities of reviewing legal documents and ensuring human rights on a theoretical basis, practical implementation of the review of legal documents in Vietnam over the past time;

- Assessing the current situation of ensuring human rights through reviewing legal documents in Vietnam today (results, limitations and inadequacies of current legal regulations and practical implementation of legal documents) protect human rights through the review of legal documents, the causes of limitations and inadequacies in ensuring human rights through the review of legal documents);

- Proposing solutions to improve the effectiveness of ensuring human rights through the review of legal documents in Vietnam today

3 Object and scope of research

3.1 Research subjects

- The thesis focuses on theoretical research on human rights, ensuring human rights in the development and improvement of the law; reasoning on legal documents, reviewing legal documents, ensuring human rights through review of legal documents; the relationship between reviewing legal documents and ensuring human rights;

- Practical activities of reviewing legal documents and ensuring human rights through review of legal documents in Vietnam today

3.2 Research scope

- The human rights mentioned and analyzed in the thesis are human rights, basic rights of citizens recognized in Chapter II of the 2013 Constitution and concretized in legal documents; The research focus of the thesis is the role of reviewing legal documents in ensuring human rights as a mechanism to ensure that regulations on human rights in the national legal system become a unified whole, not contrary to the Constitution - the original law on human rights

- The current status of legal document review activities in Vietnam is considered on the basis of the results of legal document review conducted by competent agencies across the country from 2017 to 2017 2021 is shown in the Reports on results of nationwide document review carried out by the Ministry of Justice for 5 years (from 2017 to 2021) and the practical

implementation of legal document review activities in the Department of Legal Document Review - Ministry of Justice

4 Research methodology and methods

4.1 Methodology

The thesis is researched on the basis of Marxist-Leninist philosophical methodology, expressed in dynamic approach, historical approach and practical approach At the same time, as a research work on an activity in the process

of building and perfecting the law, the thesis uses an approach based on human rights, the theory of human rights, good governance and the state legislation

4.2 Research Methods

To carry out the thesis, the author used research methods including: dialectical materialism method, logical reasoning method, analytical method, comparative jurisprudence method, and synthesis method

5 New scientific contributions of the thesis

The thesis has contributed to clarifying and supplementing theory on legal documents, reviewing legal documents, human rights and ensuring human rights, and the role of reviewing legal documents law to ensure human rights At the same time, build a basic theoretical system on ensuring human rights through document review activities, including: subjects responsible for ensuring human rights, subjects guaranteed human rights, content content, process and aspects of ensuring human rights through review of legal documents The thesis establishes criteria for evaluating the effectiveness of ensuring human rights through reviewing legal documents; The thesis analyzes the current situation of ensuring human rights through the review of legal documents in Vietnam today on the basis of the results of the review of legal documents From there, assessing the effectiveness of ensuring human rights through the review of legal documents, pointing out the shortcomings and limitations in ensuring human rights through the review of documents and principles causes of such existences and limitations;

The thesis builds a system of viewpoints and proposes solutions to improve the effectiveness of ensuring human rights through the review of legal documents in Vietnam today

6 Theoretical and practical significance of the thesis

- The research results of the thesis can be used as reference material for policy makers and state managers when considering, evaluating, and researching the construction and improvement of state apparatus organization, organize power, build and improve the legal system, build and improve mechanisms to ensure human rights, mechanisms to protect the constitution, and organize law enforcement

- The thesis can be used for reference in the process of teaching about document creation, developing and perfecting laws, ensuring human rights and other related issues

7 Structure of the thesis

In addition to the introduction, conclusion, list of author's published works related to the thesis, list of references and appendices, the thesis is structured in 4 chapters, 12 sections

Chapter 1

OVERVIEW OF RESEARCH SITUATION

1.1 Literature Review

1.1.1 Studies on human rights

Research on human rights both domestically and abroad is very rich in genre, profound in content, demonstrating humanity's development in the process of recognizing and practicing human rights

1.1.2 Studies on ensuring human rights

Similar to research on human rights, research on ensuring human rights both domestically and abroad is also very rich and profound in terms of genre and content of research on mechanisms to ensure human rights

1.1.3 Studies on the role of law in ensuring human rights

Studies on the role of law in ensuring human rights are in-depth research Studies have shown that besides the function of regulating social relations, the law has another specific purpose, which is to protect individuals in relation to the state The law in the rule of law is the law that protects and guarantees human rights

1.1.4 Research on legal documents

Research on legal documents is an in-depth study In Vietnam, studies

on this content were published after the 1996 Law on the Promulgation of Legal Documents and focused on analyzing and clarifying the values and characteristics of legal documents

1.1.5 Studies on the review of legal documents

Around the world, research on reviewing legal documents is placed in research on the mechanism for reviewing the constitutionality and legality of legal documents, and the constitutional protection mechanism In Vietnam, studies on this activity were all published after 2003, after the activity of reviewing legal documents was implemented in practice according to the government's regulations These studies attract the attention of scientists and practitioners in this field and exist in many types of research projects

1.1.6 Research on ensuring human rights through review of legal documents

Direct research on ensuring human rights through reviewing legal documents is an under-researched area

1.2 Comment on the research situation related to the thesis and direction of topic content development thesis

1.2.1 Comment on the research situation related to the thesis

Theoretically, human rights and ensuring human rights studies has given

the concept, the formation and development of the concept of human rights, ensuring human rights Most of the studies on legal documents, reviewing legal documents have elucidated the concept and the need to review legal documents Among them, there are also studies that have analyzed quite fully the theoretical issues of legal document review activities such as: principles and methods of reviewing legal documents; Subjects, authority, content, order and procedures for reviewing legal documents

In terms of practice, studies on ensuring human rights have assessed the

practice of ensuring human rights and the role of law in ensuring human rights; Studies on the review of legal documents have assessed the current status of reviewing legal documents in Vietnam at the time of the study and the main reasons leading to limitations and inadequacies in the implementation process this activity

About the solution, based on theoretical and practical research to ensure

human rights or practical and theoretical review of legal documents, studies have proposed quite specific solutions to improve efficiency ensure human rights or improve the efficiency of reviewing legal documents to meet the socio-economic situation at the time of research

These studies have created scientific values that need to be selectively absorbed and inherited by the thesis author to realize the main goal of the thesis However, previous studies on the review of legal documents are often in

a narrow scope, without the connection, the connection between the review

of legal documents and activities to ensure the constitutionality, legitimacy

of the legal system In particular, there has been no research on ensuring human rights through the review of legal documents Most of the works have not collected enough information and data on the actual status of legal document review activities, so there is not enough basis for an accurate and objective assessment of legal document review activities the law Due to long research, many solutions so far have become outdated, no longer suitable with legal regulations and socio-economic conditions; or some solutions have basically been implemented in practice and found that it is necessary to consolidate

1.2.2 The direction of developing the content of the thesis topic

Based on theoretical research and practice of reviewing legal documents, learning from foreign experience, the thesis will continue to research and complete basic gaps related to the content of the topic such as: characteristics of legal documents, concepts and some basic contents of ensuring human rights through review of legal documents; the criteria for evaluating the effectiveness of ensuring human rights through the review of legal documents… The thesis also systematically studies, analyzes and evaluates the actual situation of ensuring human rights through activities of reviewing legal documents in Vietnam today Thus, the thesis shall evaluate the effectiveness of ensuring human rights through this activity, determine the causes of limitations in the review of legal documents in practice in order to give orientations and solutions to improve the effectiveness of ensuring human rights through the review of legal documents in our country today

1.3 Research question and research hypothesis

Research question 3 What perspectives and solutions are there to further promote the effectiveness of ensuring human rights through reviewing legal documents?

1.3.2 Research hypothesis

In recent times, human rights have been guaranteed through review of legal documents However, the practice of reviewing legal documents still has many limitations and inadequacies that have reduced the effectiveness of ensuring human rights through this activity Recognizing and properly evaluating the position and role of legal document review activities in ensuring human rights and perfecting the legal system on reviewing legal documents and laws has related to human rights and improving the effectiveness of implementing the legal system, this will improve the effectiveness of ensuring human rights through activities of reviewing legal documents in Vietnam today

Chapter 2 THEORETICAL ISSUES OF ENSURE HUMAN RIGHTS THROUGH

REVIEWING LEGAL DOCUMENTS 2.1 The concept of human rights and ensuring human rights

2.1.1 The concept of human rights

Human rights are any rights associated with every human being is all the rights of an individual born into society This right is human in nature because it is a right formed immediately after a person is born, belonging to human nature, not due to law prescribed by law or given by the state

2.1.2 Ensuring human rights

Ensuring human rights means that subjects (individuals, states, political and social organizations ) are obliged to use measures and methods to realize human rights on the basis of human rights based on human rights principles to protect, respect and promote the implementation of human rights in its

activities, preventing abuse and violation of human rights by other subjects

In particular, human rights include human rights and basic rights of citizens specified in the 2013 Constitution; Principles of human rights include: (i) human rights are only guaranteed when recognized by law; (ii)Restricting human rights and civil rights is the basis for ensuring human rights and such restrictions must follow the principles prescribed by law; (iii) The exercise of rights must be realconcurrently with obligations and must not violate national and ethnic interests, rights and interests of others; (iv) human

rights are equal for each individual in society

2.2 Some theoretical issues on reviewing legal documents and ensuring human rights through reviewing legal documents

2.2.1 Concept of legal documents

Legal documents are a form of legal existence, which include legal norms which are general rules of conduct promulgated by individuals and competent state agencies in order, Strict procedures are prescribed by law and guaranteed by the State

In particular, legal norms are an important factor, determining the authority, form, order, and procedures for promulgating documents A general rule of conduct is only a legal norm when it meets the requirements

of “newness” and popularity within the scope of general application

The document contains general rules of conduct, applied repeatedly to all subjects or groups of subjects nationwide or in each locality, but is not promulgated according to the correct authority, order, Statutory procedures are documents containing legal norms

2.2.2 Activities of reviewing legal documents

2.2.2.1 Concept of reviewing legal documents

The activity of reviewing legal documents is the process by which competent entities review, evaluate and conclude on the constitutionality, legality and reasonableness of legal documents and requirements Competent entities promptly handle illegal and unreasonable content of documents in appropriate forms to ensure the constitutionality, legality, transparency, effectiveness and feasibility of regulatory documents violate the law

2.2.2.2 Characteristics of legal document review activities

Purpose of the activity:Is an activity carried out immediately after the

document is issued, reviewing legal documents is carried out to detect illegal and unfeasible contents of the document for timely handling to ensure constitutionality, legality, consistency and feasibility of the legal system; Strengthen the professionalism and responsibility of competent entities in developing and promulgating legal documents; ensure strictnessstate management, protecting the legitimate rights and interests of agencies, organizations and individuals, enhancing people's trust in state agencies; contributing to creating a transparent legal environment, promoting socio-economic development and international integration

Subjects performing review of legal documents:is a competent agency or

person according to the law In Vietnam, this subject includes: Prime Minister, Ministers, Heads of ministerial-level agencies, Chairmen of People's Committees at all levels;

Objects of legal document review:are legal documents and documents

containing legal norms within the scope of authority of the highest authority, the Prime Minister

Reviewing content including: authority to promulgate documents,

document content and format, presentation techniques; order and procedures for drafting and promulgating documents to detect illegal content

2.2.2.3 The role of reviewing legal documents in ensuring human rights

- Is the basis for affirming and ensuring the constitutionality, legality, and unity of human rights recognized by law

- Ensure uniform enforcement of human rights throughout the territory

- Contributing to the promotion of democracy, strengthening human rights in supervising the activities of state agencies

In addition, the review of legal documents also demonstrates the role of constitutional protection activities

2.2.3 Ensuring human rights through the review of legal documents

2.2.3.1 The concept of ensuring human rights through the review of legal documents

Ensuring human rights through review of legal documents means that competent entities review, evaluate, and conclude the assurance of human rights in documents subject to the above review the basis of human rights and human rights principles recognized by the Constitution; handling violating content to respect, protect, and promote the implementation of human rights and the process by which these subjects use measures and methods to realize human rights in cultural review activities copy

2.2.3.2 Features that ensure human rights through document reviewing Subjects are guaranteed human rights through document reviewing activitiesis a human rights subject whose rights are violated by legal

documents or documents containing legal norms promulgated by state agencies/subjects

The subject is responsible for ensuring human rightsis the subject that

has the authority to check and process documents

Content ensures human rights through document reviewing activitiesis

to ensure human rights or human rights principles recognized by the Constitution and law; Ensure the right to monitor the activities of state agencies, participate in state management and exercise rights/accountability

of rights holders during the process of reviewing documents

Order and procedures to ensure human rights through document reviewing activitiesis the process of reviewing legal documents, from

reviewing and detecting illegal content, violating human rights, human rights principles until the violating content is handled

Aspects of ensuring human rights through document reviewing:Ensuring

human rights through document review is carried out in two aspects: first, by detecting and handling regulations that violate human rights and violate human rights principles; Second, through the process of organizing and implementing activities of reviewing legal documents

2.2.3.3.Criteria to evaluate the effectiveness of ensuring human rights through document reviewing

Firstly, Evaluation of ensuring human rights content and human rights

principles from the results of review of legal documents Accordingly, the assessment is carried out on the basis of answering the question: which human rights have the activities of reviewing legal documents guaranteed, and which human rights principles recognized by the Constitution have been guaranteed?

Secondly, Evaluation of ensuring human rights from organizing

activities of reviewing legal documents Accordingly, the process of evaluating the effectiveness of ensuring human rights in organizing review of legal documents must answer the following questions:

(i) Is the activity of reviewing legal documents conducted legally? (ii) Is the process of reviewing legal documents transparent?

(iii) Does the document review process ensure accountability of the subjects whose documents are reviewed?

(iv) Is the participation of rights holders guaranteed in the process of reviewing legal documents?

(v) Does the process of reviewing and handling illegal documents ensure equality and non-discrimination between subjects and objects of review? Determining the effectiveness of ensuring human rights through reviewing legal documents depends on the results of answering the questions

of the two groups of issues mentioned above When the answer to the above questions is yes and is evaluated as good, it is also a result of evaluating the effectiveness of ensuring human rights through review of legal documents

2.3 Factors affecting the effectiveness of ensuring human rights through review activitieslegal documents

2.3.1 Impact of the legal system

The legal system that affects the assurance of human rights through the review of legal documents is a legal system with content related to human rights This legal system is used by entities with authority to review documents as a legal basis to consider, conclude, and recommend handling regulations that violate human rights and violate human rights principles in the process of reviewing legal documents

2.3.2 Impact of warranty conditions

The conditions to ensure the review of documents include: Organization and staff of the review of documents; Collaborator checks documents; Funding for document review activities, regimes and policies for document reviewers; Database for document reviewing; Working facilities and equipment; Training, professional guidance and coordination in reviewing documents

2.3.3 The impact of implementation in practice

The actual organization and implementation of document review activities is shown in aspects such as: scope of implementation, value of detected illegal content, effectiveness of handling illegal content, number of documents checked

2.3.4 Social impact

Society impacts document review in two directions: first, the consensus direction in the direction of response, agreement, and support, including