- Study the rationale for organization and construction inspection activities, such as: clarifying concepts, requirements, principles of construction inspection organization; clarifying
Trang 1VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
PHAM THI ANH DAO
CURRENT ORGANIZATION AND OPERATION OF THE
CONSTRUCTION INSPECTION IN VIETNAM
Major: Constitutional Law and Administrative Law
Code: 62 38 01 02
SUMMARY OF DOCTORAL THESIS IN LAW
HANOI - 2017
Trang 2SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
Supervisor: 1 ASS PROF PHD LUONG THANH CUONG
2 ASS PROF PHD BUI THI DAO
Defense 1: Professor.,Doctor Pham Hong Thai
Defense 2: Professor., Doctor Thai Vinh Thang
Defense 3: Associate Professor., Doctor Vu Thu
The Thesis will be defended before the Thesis Evaluation Council
of the Academy at Graduate Academy of Social Sciences
at….hour….minute, on day…month….year…
The thesis can be found at: Library of Graduate Academy of Social Sciences and National Library of Vietnam
Trang 3INTRODUCTION
1 Neccessity of the research
Vietnam is the country with nation-wide rapid urbanization in the region In particular, the construction sector plays an important role for development of economy, society, creating a system of infrastructure values for the country The construction investment activities take place continuously in many sectors in provinces such as irrigation, construction, transport, health and education with infrastructure, civil works and industrial works and etc Such practice requires the State to concern about continuous construction innovation, create sector management mechanisms in accordance with practice to meet the requirements of the enabling, rule of law and service-orientedadministration Construction inspection is one of the effective mechanisms for ensuring and protecting human rights, fundamental rights of citizens, ensuring law order in construction in practice However, in addition to the achievements, organization and inspection of construction in recent years have had shortcomings The construction inspection model lacks focus, is inconsistent, overlapping, duplicates for contents, scope and objects In general, the current organization and inspection of the construction is facing with weaknesses in functions and tasks which hinders the uniformity and efficiency of inspection activities The limitations and shortcomings are reflected in in both legal and practical aspects, for example the system of legal documents on the specialized sector inspection is incomplete, have many contradictions in content and are overlapping, procedures have many shortcomings, the service duty performance provision is not professional nor of good quality and etc The said practice requires more studies of organization and construction inspection activities from many different approaches, including theh Constitutional Law and Administrative Law approaches to search, supplement scientific basis for continuing improvement of the organization and operation of the construction inspection to meet the requirements of the practice
Derived from the demands of practice as mentiond above, the theme "Current organization and operation of the construction inspection in Vietnam" is selected
for study at the doctoral level, in the specialization of Constitutional Law and
Trang 42.2 Research tasks
- Formalize research situation and evaluate the research situation to figure out affairs as studied and affairs omitted for additional research on construction inspection
- Study the rationale for organization and construction inspection activities, such as: clarifying concepts, requirements, principles of construction inspection organization; clarifying the concept, features, objects, content, forms and procedures for construction inspection operations; clarify the roles of organization and operation of construction inspection against the state administration activities, ensuring socialist legal affairs, construction law order as well as ensuring and protecting human rights, citizenship rights; analyzing factors affecting organization and operation of construction inspection
- Make overview, descriptions, statistics, analysis and assessment of the state of organization and construction inspection activities before and after 2010 From that, point out the results and limitations as well as the causes
- Identify needs and perspectives of innovation for organization and construction inspection activities, propose innovative solutions fr organization and construction inspection activities in our country today
3 Objects and scope of research
Scope of space: The thesis studies organization and construction inspection activities in the whole country
4 Methodology and research methods
Trang 55 New contributions of the thesis
Firstly, clarify the concept of organization of construction inspection; construction inspection activities, characteristics and elements that make up organization and construction inspection activities; the roles of the organization and construction inspection activities, as well as factors affecting the organization and construction inspection activities
Secondly, make overview of the current status of organization and operation of construction inspection before 2010 and after 2010 until now and evaluate the results and limitations of organization and inspection in the periods as well as the causes of such results and limitations
Thirdly, identify the needs, concepts and innovative solutions for organization and inspection in line with urban and rural area government authorities Recommend to develop a model of construction inspection in the urban area and rural area; recommend completing legal provisions on organization and operation of construction inspection in a transparent, specific and easily workable way
6 Significance of the thesis
- Research results of the thesis contribute to supplemeting and completing
reasoning of organization and construction inspection activities
- Results of the status and assessment for the status of the organization and construction inspection activities in the thesis contribute to supplementing scientific resources to make assessment of construction inspection organization model in the practice
- The thesis also provides scientific evidences through proposing solutions on innovation of organization and construction inspection activities in the current context of Vietnam, such as: develop a construction inspection model in accordance with practices in urban and rural areas This is the basis for the managers, policymakers to refer to in practice
- The research results of the thesis can be a source of reference for the activities of teaching, research and learning about las, administration and etc
7 Structure of the thesis
In addition to introduction, conclusion, list of references and appendices, contents
of the thesis includes 04 chapters:
Chapter 1: Literature review
Chapter 2: Theoretical issues of of organization and operation of the construction inspection
Chapter 3: The state of organization and operation of the construction inspection in Vietnam
Trang 6Chapter 4: Viewpoints and solutions for renovation of organization and operation of the construction inspection in Vietnam at present
Chapter1 LITERATURE REVIEW
1.1 Overview of research status relating to the topic
1.1.1 Domestic research works
1.1.1.1 Literature on organization and operation of inspection and specialized inspection
Including a number of works such as: Ministerial-level topic "Scientific basis for determining the model and structure of state inspection organization at all levels to meet the requirements of state administrative reform" (1999) Chairman Nguyen Van Liem; Independent scientific topic at the State level "perfect mechanism of inspection and supervision to improve the efficiency of state management" (2002), Chairman Tran Duc Luong; Master thesis in law "Perfect organization and operation of the Ministerial-level Inspection of our country in the current period (Through practice of transportation sector)" (2002) of Tran Van Truong; Master thesis in law "Innovating organization and operation of Ministerial-level inspection, specialized inspection" (2004), Nguyen Huy Hoang and etc The aforementioned research works study general reasoning of inspection and specialized inspection and clarify the laws on organization, inspection and specialized inspection in various stages since the Inspection Ordinance in 1990, Laws on inspection in 2004 and 2010 together with documents guiding implementation
More specifically, there are a number of research works relating to directly enhancement of organizational capacity and effects and efficiency of inspection and specialized inspection
Ministerial-level scientific topic "Gathering and verifying evidences in economic inspection activities of the State inspection organizations" (1999) chairman Tran Duc Luong; Ministerial-level scientific topic "Strengthening relations of direction and coordination in the system of state inspection agencies to improve the efficiency and effect of inspection" (2005) Chairman Nguyen Van Thanh; Doctoral thesis in law,
"Completing the inspection law in the current period" (2009) Nguyen Thi Thuong Huyen Ministerial-level scientific topic " Principles of inspection activities - some theoretical and practical issues " (2011), chairman Nguyen Thai Hong; Key ministerial-level scientific topic "results of inspection activities - Theoretical and Practicial issues" (2012) The group of works studied, analyzed the contents of inspection activities, skills and operations of inspection to provide knowledge to meet the requirements of public
Trang 71.1.2 International research works
Not only attract local scientists but also many foreign authors studying the inspection field with other approaches such as: reference book "Contruction Infection handbook" (1989) of James, Jorome O "Brien, Nostrand, Reinhold; Thesis of Management "An Evaluation of the mandatory building inspection scheme in Hong Kong” (2008) Law Wai Nigel shing - Hong Kong University The article "inspection reforms: why, how and with wath" (2012) Florentin Blanc; the article" How to be a good Ombudsman "(2004) of Ph.D Jaccob Soderman, former inspector of European Commission in the period of 1995-2004
Some works are towards the needs and roles of construction inspection in the field
of construction management of the state, point out how to become a good inspector
an develop some inspection skills
1.2 Overallreviews
1.2.1 Research results and their use in the thesis
- In term of theoretical issues: The scientific works as mentioned above basic reasoning values in inspection, inspection organization, inspection activities
The thesis inherits traditional views "inspection associated with management" indicating the importance and significance of specialized inspection in the state management of sectors or fields
For foreign works have overview and broaden the roles of inspection agencies for the society, citizens, namely in Hong Kong, construction inspection plays an important role
Trang 8in inspection of construction activities The recommendations of the construction inspection agencies are approved by the government as a regulation "Public consultation
on housing management"
- In terms of practice and solutions: the status of organization, inspection activities, specialized inspection and inspection of construction are assessed, analyzed during periods of Inspection Ordinance in 1990, Law on Inspection in 2004 and Law on Inspection in 2010 taking effect as a basis for reasoning and practices for proposing solutions to complete the laws in an immediate and long-term way such as completing the specialized legal system, improving the quality of human resources, focusing on interdisciplinary, multidisciplinary works
Foreign works have opened newer and more flexible perspectives in roles, purposes
of inspection in human rights protection; the flexible adaptation of inspection activities aiming to enhance effect and efficiency of the state management in the sectors, fields
1.2.2 Issues not mentioned or need studying further
In terms of theoretical issues: most of the works do not have a profound commentary on the nature of specialized inspection, construction inspection, has not put the importance of the position and role of specialized inspection in the overall mechanism to ensure and protect human rights, civil rights and etc From the reasoning deficiencies mentioned above, it is necessary to study in the scope of chapter 2 of the thesis
In terms of practice: there are no evaluation and analysis of the model on construction inspection organization in the periods before and after the law on inspection in 2010 takes effect Not clarify the status of the structure and personnel of construction inspection organization through statistics For such shortage, the thesis analyzes data about the current status of structure, personnel, content of construction inspection activities as the basis setting out the needs and innovation views of organization and construction inspection activities
Solutions recommended, proposed: continue to demonstrate practical needs to provide direction and suggest some solutions to innovate innovation organization and construction inspection activities
In short, it is possible to confirm that no monograph works study in a systematic and comprehensive way at the doctoral thesis on theoretical and practical issues in organization and construction inspection activities Therefore, we can say this is the first scientific work in a comprehensive and profound research of "Current organization and operation of construction inspection in Vietnam " in non-duplication However, the thesis inherits some values, findings of the previous scientific works, but the thesis still ensures new issues and separate development direction
Trang 91.3 Research hypothesis and research questions
1.3.1 Research hypothesis
First, there has been a lot of innovation of the organization and operation of construction inspection nowadays (since the Law on Inspection was inacted in 2010), this has been demonstrated by the practice of organization construction inspection agency system and the results of inspection activities in construction However, there have been still certain limitations existing in arranging the organizational structure, functions, duties and powers in construction inspection activities, thereby affecting the effectiveness of the organization and operation of construction inspection
Second, in order to meet the requirements of current practice, it is necessary to innovate construction inspection organization towards compliance with construction management specialities in urban and rural areas; and to innovate construction inspection with professionalism, transparency and efficiency
1.3.2 Research questions
The thesis focuses on addressing the following research questions
How are the organization and operation of construction inspection conceived? How are they composed? What are the objects of inspection? What is the content of construction inspection? What forms and procedures are used in construction inspection activities?
What is the role of construction inspection in the current situation of Vietnam? Are there any factors affecting the organization and operation of construction inspection? How are the organization and operation of construction inspection developed?
What are the results and limitation of the current organization and operation of construction inspection? What are the reasons?What demands have led to innovating the organization and operation of construction inspection? Innovating the organization and operation of construction inspection have to comply with what common viewpoints? What are feasible solutions for innovating the organization and operation of construction inspection in Vietnam nowadays?
Chapter 2 THEORETICAL ISSUES OF OF ORGANIZATION AND OPERATION OF
THE CONSTRUCTION INSPECTION
2.1 The theoretical issues of construction inspection organization
2.1.1 Concept of construction inspection organization
Construction is a special technical and economic sector in a multisectoral and multidisciplinary way To meet the requirements of multi-disciplinary and multi-
Trang 10sector management, the state needs to establish a system of specialized inspection agencies with specific organizational structures to each sector and implementing specialized activities
Thus, it is possible to understand " Organization of the construction inspection is
to establish and maintain units and positions in a construction inspection agency and connect units and positions together to perform the function of specialized inspection
of construction "
Construction inspection organization must meet the following requirements:
Firstly, identify target of construction inspection organization;
Secondly, have hierarchical and professional properties
Thirdly, construction inspection organization is flexible and adapt to the operating environment
Fourthly, construction inspection organization must ensure effective management
2.1.2 Structure of construction inspection organization
Construction inspection organization is an institution of the state in the overall state inspection apparatus The unit are specified clearly on the tasks, powers, responsibilities and closely linked according to certain targets Construction inspection organization is constituted by the following units:
Firstly, the unit performs administrative functions
Secondly, the unit performs functions on operations of specialized construction inspection
The structure includes the head of the organization with the title of the chief inspector, support by deputy chief inspectors and inspectors Construction inspectors are officers of the construction inspection agencies at the central and local level, are appointed into the scale of inspector to perform inspection tasks and other tasks as assigned by the head of the construction inspection agencies at the central and local level
2.1.3 Functions, tasks and powers of construction inspection
Construction inspection organization performs the function of specialized construction inspection, to concretize specialized inspection function by the duties and powers as follows:
The first group, including the duties and powers within the scope of professional activities
The second group, including the tasks and powers, in coordination with other agencies, organizations and individuals involved in the performance of assigned duties
The third group, including the powers in advising the upper management agencies
Trang 11The fourth group, including powers in issuing, organizing preventive measures and the administrative decisions
2.2 Theoretical issues of operation of the construction inspection
2.2.1 Concept of construction inspection
It can be seen nature of construction inspection includes a series of works including: inspection, review, assessment, conclusions and handling according to procedures prescribed by laws for individuals and organizations in compliance with the rules, regulations and technical expertise in construction law Implementing series
of construction inspection activities aims to control compliance with construction law policies of all objects in the society In general, operation of the construction inspection refers inspection, review, evaluation and handling of compliance with construction law, management rules and technical regulations in the field of construction according to the legal regulations and procedures stipulated by the agency for specialized inspection of construction
Construction inspection brings some following characteristics
Firstly, construction inspection activities are tied to state management activities of entities assigned for specialized construction inspection
Secondly, construction inspection activities represent state powers in the administration of the sectors, fields (administrative rights) to the inspection objects
Thirdly, construction inspection activities are with multidisciplinary and multidisciplinary nature
With these characteristics on the subjects when conducting inspection activities which must comply with basic principles including the principle in compliance with the laws; Principles accurate, objective, honest, open and democratic, and timely Principles do not overlap in scope, objects, contents, inspection time between agencies implementing inspection functions; Principles do not impede normal activities of the inspection object
2.2.2 Objects and contents of operation of the construction inspection
Firstly, in the terms of construction inspection object
The objects of the construction inspection are Vietnamese organizations, individuals or foreign organizations, individuals engaged in construction activities in Vietnam which are obliged to adhere to and abide by the laws on construction and management of construction in Vietnam It can be found that the object of construction inspection has an extensive scope as follows:
The investor is an agency, organization, individual owning capital, borrowing capital or assigned to manage, use capital directly to implement construction investment including construction, repair and renovation of the work
The contractor in the construction investment is an organization or individual which is eligible for building activities, construction practice activities when joining
Trang 12contractual relations in the construction investment activities Inspection of the contractor is to inspect violations against the regulations of the contractor including: construction conditions, construction practice capacity, contents of the bids, national technical regulations, applied standards and etc
Secondly, in the term of construction inspection contents
Construction inspection contents are specific activities of the inspection object The contents of construction inspection are under the specialized construction management managed by the Government and assigned to the Ministry of Construction and People’s Committees at the levels to manage in the areas as assigned by the Government including:
The first group in inspecting the implementation of the laws on planning and architecture;
The second group in inspecting the implementation of the laws on construction investment;
The third group in inspecting the implementation of the laws on urban area development;
The fourth group in inspecting the implementation of the laws on managing and using technical infrastructure;
The fifth group in inspecting the implementation of the laws on development, management and use of housing, business of real estate, management, use of offices
in the scope of state management functions of Ministry of Construction;
The sixth group in inspecting the implementation of the laws on mining minerals
as construction materials, production of construction materials, business of construction materirals with conditions under the laws ;
The seventh group in inspecting the implementation of the laws on technical regulations and standards under the specialized construction ;
The eighth group in inspecting working conditions of inspection objects in implementing construction activities under the specialized construction ;
2.2.3 Types and procedures of construction inspection
Fistly, types of construction inspection
Types of construction inspection refer external signs of construction inspection activities There are many bases to classify types of inspection activities according to the nature, the scale or scope of each inspection The inspection teams or independent inspectors, conduct inspections against inspection objects in the scope of entire project or project inspection as planned, regular inspection or irregular inspection Secondly, in the terms of procedures of construction inspection: are steps or stages which the subjects when implementing construction inspection activities shall
Trang 13comply with To conduct a construction inspection, it is necessary to comply with the order, procedures including three stages as follows: Prepare inspection, conduct inspection and finish inspection
2.3 Roles of organization and operation of construction inspection
2.3.1 Assurance, protection of human rights, citizenship rights
Through inspection, review, evaluation, conclusion and handling of inspection object, actions affecting directly human rights, basic rights of citizens shall be handled and prevented
2.3.2 Contribution to strengthening legislation and ensuring enforcement ofthe construction law
Inspection conclusions, solutions and recommendations, requirements of handling decisions given by the construction inspection agency are not only towards handing
of direct events but also remedy of gaps , policies of construction law, prevention of original causes causing violations in the projects and works
2.3.3 Improvement of legal awareness of construction actors
Presence of construction inspection agency from pre-inspection to post-inspection in construction activities affect positively awareness, responsibilities in compliance with the construction law of the investors, contractors, designers, supervisors and etc
2.3.4 Improvement of quality of works, assurance of realization of construction planning
Through inspection and supervision of the construction inspection agency conducted regularly, the quality of the work is increasingly improved, the work ensures to be built on the progress, under the planning to minimize waste of costs, corruption in the construction, contributing to making realization of the actual planning
2.3.5 Contribution to ensuring state management in construction
The construction inspection agency is responsible for advising Minister of Construction to manage inspection under the powers of Minister, in addition, helping the Minister to manage marco construction sector by the mechanism of policies, synthesize the practice under the specialized affairs in charge; coordinate to guide specialized affairs to the construction inspection agency at the lower level
2.4 Factors affecting organization and operation of the construction inspection
2.4.1 Law on organization and operation of the construction inspection
The law on the organization and operation of construction inspection are a factor directly affecting the efficiency of inspection activities A system of uniform, full, specific, strict and uniform policies and laws will be a direct mean so that the competent entity carries out the functions and duties Conversely, if the system of laws and policies is not clear, lacks of consistency and rationality, it reduces the