summary of dissertation delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in vietnam

The unclear delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases has caused many challenges that are c

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY

NGUYEN MANH HUNG

DELIMITATION OF THE JURISDICTION TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASES IN

VIETNAM Specialized Major: Theory and history of state and law

Code: 62.38.01.01

SUMMARY OF DISSERTATION

HANOI - 2013

The dissertation is completed at:

HANOI LAW UNIVERSITY

Academic Supervisor: Prof Dr Pham Hong Thai

Reviewer 1: Prof Dr Hoang Kim Que

Reviewer 2: Ass Prof Dr Luong Thanh Cuong

Reviewer 3: Dr Duong Thanh Mai

Dissertation will be examined by the Council of Dissertation Evaluation at

Hanoi Law University at … date …/…/2014

Dissertation is available at:

1) National Library;

2) Library of Hanoi Law University

INTRODUCTION

1 Theme Selection Reason

Since 01/07/1996, administrative dispute was not only solved by administrative procedure but also by administrative court procedure because Vietnam has wanted to ensure that the administrative dispute will

be solved more effectively, in order to protect fully the rights and legitimate interests of citizens violated by individual/organization when exercising executive power However, these two channels were only conducted and completed seperately Therefore, legal regulations on delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases in Vietnam still reveal many issues The unclear delimitation of the jurisdiction to deal with administrative complaints and the jurisdiction of courts to deal with administrative cases has caused many challenges that are common in reality such as: refusing or shifting responsiblity for dealing with administrative dispute; imbalance in the number of cases and in the quality handled by two channels

These problems do not meet requirements of the principle: State power

is unity with reasonable delegation 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 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:

- 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

- 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

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

Fifthly, administrative redress refers to dispute happened between

subject and object of public administration

In brief, administrative redress is the right to 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 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 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

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

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

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

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

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