In Vietnam, along with the process of completing the state apparatus, thesystem of legal documents on cadres and civil servants in our country is alwayspaid special attention to amending
Trang 1GRADUATE ACADEMY OF SOCIAL SCIENCES
NGUYEN THI LE THU
LAW ON CADRE IN VIETNAM TODAY
Major : Constitutional and Administrative Law Code : 9 38 01 02
SUMMARY OF DOCTORAL THESIS OF LAW
HA NOI - 2019
Trang 2GRADUATE ACADEMY OF SOCIAL SCIENCES
Scientific Supervisor: 1 Assoc Prof., Dr Le Van Long
2 Dr Hoang Thi Ngan
Reviewer 1: Prof Dr Pham Hong Thai
Reviewer 3: Assoc Prof., Dr Nguyen Van Manh
Reviewer 3: Assoc Prof., Dr Tran Thị Thuy Lam
The dissertation will be defended before the thesis review council
of the Academy at the Graduate Academy of Social Sciences
At , on date: , month: , 2019
The thesis can be found at National Library of Vietnam
and Library of Graduate Academy of Social Sciences
Trang 31 The necessity of the thesis
In the organization and operation of the state apparatus in any country,
at any time, human always play a particularly important role Therefore,attributing an importance on human resources in order to gather qualified,professional staff with sense of high responsibility in implementation ofpublic service is fundamental
In Vietnam, along with the process of completing the state apparatus, thesystem of legal documents on cadres and civil servants in our country is alwayspaid special attention to amending, supplementing and creating a legal basis forbuilding and developing cadres and civil servants in order to contribute toimproving the effectiveness and efficiency of state management and serving thepeople However, in response to urging requirements of national renovationcareer, other than the achievements, there have been some certain shortcomingsand limitations in building and development the cadres, civil servants andofficials There are many reasons for this fact, including law on cadres, civilservants and officials in general, the law on cadres in particular due to itsincompletion and asynchronism; especially from the institutional perspective, thecurrent law has not clearly differentiated the objects as cadres and civil servants.Throughout the process of formation and development of the law on cadres andcivil servants in Vietnam since 1945 until now, the provisions on legal status andmanagement content for cadres and civil servants have always been paid specialattention to supplementation and completion relatively synchronously and fully;however, cadres and civil servants have not been differentiated and identifiedclearly, the specific regulations for cadres are very few and asynchronous Manycontents of cadre management are integrated in the general adjustmentmechanism between cadres and civil servants, resulting in difficulties andobstacles for management of cadres There are still open contents because there
is no norm of regulation law; Management of cadres is mixed between law,regulations, rules of the Party and socio-political organizations
Therefore, in order to improve effectiveness and efficiency of statemanagement, the important and urgent issue is to promote the role of law to establishorder and discipline in building and developing the cadres, civil servants andofficials, to meet the requirements of building a socialist law-governed state ofVietnam, reforming the administration and international integration
From the foresaid analysis, researching "Law on cadres in Vietnam today" has an urgent meaning both in theory and practice to clarify the role and
characteristics of cadres as the subjects for adjustment of the law in comparison
to other subjects as civil servants and officials; assessing the completeness andfullness of the legal regulations on cadres to ensure evaluation, use, developmentand settlement of responsibilities for the cadres
Trang 42 The research purpose and tasks of the topic
2.1 The research purpose
The overall purpose of the topic is scientific proof for solutions in order
to improve the law on cadres in Vietnam on the basis of clarifying theoreticalissues as well as the real status of law on cadres in Vietnam today
2.2 The research tasks
- A set of typical research projects related to the thesis topic has beenpublicized; Analyzing and commenting to identify the issues solved by theauthors that the thesis may inherit and the thesis’s gaps will have to be resolved
- Systematizing theoretical awareness of law on cadres
- Analyzing and assessing the real status of law and practical
implementation of the law on cadres in our country from different viewpoints
- Proving the objective necessity of improving the law on cadres inVietnam today; on that basis, determine the viewpoints and propose specificsolutions to improve the law on cadres in our country today
3 Objects and studying scope of the project
3.1 The objects of the study
The thesis studies the theoretical and legal issues of cadres in our country today
3.2 Studying scope
- In respect of content
The thesis only focuses on analyzing the basic contents of the law oncadres in general (not studying the laws on each title of cadre), including:Regulations on determining objects of cadres; regulations on the process ofelection, approval, appointment, planning, transfer, rotation and evaluation ofcadres; regulations on rights and obligations of cadres; regulations onresponsibilities of cadres; regulations on conditions, criteria and ethicalstandards of cadres; regulations on conditions to ensure performance ofcadres’ public services and duties
- About space: Nationwide
- About time: From 1945 until now, mainly focusing on the period from issuance of Law on Cadres and Civil Servants in 2008 to now
4 Methodology and studying methods
4.1 Methodology
The thesis uses methodology of dialectical materialism and historicalmaterialism, applying the viewpoints of Marxist-Leninist doctrine, Ho ChiMinh's thought as well as the guidelines of the Party and the policies of theVietnamese Government on the Government and the law, construction anddevelopment of cadres in our country today
4.2 Studying methods
The thesis uses a number of specific studying methods such as analysis, comparative summary and history to apply to in each chapter of the thesis
Trang 55 New scientific contributions of the thesis
Firstly, approach from a angle of public affairs, the thesis studies the issues of
theory and law on cadres comprehensively The thesis analyzes and gives conceptsand characteristics of cadres Since then, the thesis continues to build the concept oflaw on cadres, pointing out the characteristics of the law on cadres and analyzingroles as well as the basic contents of the law on cadres in our country
Secondly, the thesis has generalized, analysed and clarified the adjusted
contents of the law on cadres through phases, especially the current law oncadres in our country today; give specific and systematic assessments aboutthe real status of law on cadres
Thirdly, from a studying viewpoint, the thesis proposes views and
solutions to improve the law in compliance with the political, cultural andsocial characteristics of our country In particular, there is a new proposal toissue a separate law on cadres
6 The theoretical and practical significance of the thesis
- Studying results of the thesis contribute to clarifying, giving a morecomprehensive, profound, scientific and practical viewpoint of theory andlaw on cadres in Vietnam, contributing to building a theoretical and practicalbasis for continuing to improve the law on cadres in Vietnam
- Studying results of the thesis can be used as reference for researchingand teaching activities at training and improving institutions for cadres andcivil servants At the same time, the thesis is also a reference source forrelevant agencies and organizations in organizing implementation of laws inrelation to management of cadres and civil servants
7 The structure of the thesis
Other than the preface, conclusion and list of materials for references, the thesis content consists of 4 chapters:
Chapter 1: Overview of study situation related to the topic and the
issues to be studied of the thesis
Chapter 2: Theoretical issues of law on cadres in Vietnam.
Chapter 3: Current situation of law on cadres in Vietnam today.
Chapter 4: Improving the law on cadres in Vietnam today.
Chapter 1 OVERVIEW OF STUDY SITUATION RELATED TO THE TOPIC AND THE ISSUES TO BE STUDIED OF THE THESIS
1.1 Overview of study situation relates to the topic
1.1.1 Group of studying works related to regime of public affairs and cadres, civil servants
Representative researchs: National level project "Develop forces of Cadres and Civil Servants in order to meet the needs of Socialist Law-
Trang 6Governed State - of the people, by the people, for the people" led by PhD.Thang Van Phuc; Ministerial level project "Reformation of Vietnam Public Administration nowadays - Situations and Solutions" led by Assoc.Prof /PhD Trinh Duc Thao; Ministerial level project "Theoretic and Practical fundamental problems of Vietnam Public Administration from 2006 to 2015 " led by Assoc.Prof/PhD Vu Thu; Book "Building the Socialist Law-Governed State in Renovation period" by group of Nguyen Van Yeu, Prof.PhD Le Huu Nghia (co- editors), National Political Publishing House, 2006; Book "Reformation of Vietnam Administration, Situations and Solutions " by United Nations
Development Programme (UNDP), Political Publishing House, 2009; Reference
book "Human Source Policies of certain countries" Ministry of Home Affairs, 1994; Book "System of Public services and reformation trend of certain countries’’ by Thang Van Phuc, Nguyen Minh Phương and Nguyen Thu Huyen
(co-editors), National Political Publishing House, 2004; Jurisprudence Doctoral
Thesis "Legal education for the force of cadres and civil servants during development of Socialist Law-Governed State of Vietnam
" by Nguyen Quoc Suu, Vietnam National University, Faculty of Law, 2010; Doctoral Thesis of Public Administration Management "Theoretic and Practical basis of liability, right and responsibility of Vietnamese civil servants
" by Le Nhu Thanh, National Academy of Public Administration, Hanoi, 2009;
Doctoral Thesis of Philosophy "Responsibility of Public services and ethics of Vietnamese civil servants nowadays" by Cao Minh Cong, Vietnam Academy of Social Sciences, Ha Nội, 2012; the essay "Improving quality of performance of Cadres, Civil Servants and Public Administrative Agencies in order to develop and perfect Socialist Law-Governed State of Vietnam " by MA Le Van Quyen, State Organization Journal, No 5/2012; the essay "Problems within Public Service" by PhD Hoang Thi Ngan, State Organization Journal, No 2/2011; the essay "Position-based education and improvement for Cadres and Civil servants" by PhD Dao Thi Ai Thi, State Organization Journal, No 198(7-2012); the essay ‘Develop the force of cadres and civil servants to meet the requirements of Public Administrative Reformation in the period of 2011-2020 "
by Luu Hai Dang, State Organization Journal, No 4/2012; the essay "Educating and Improving the Cadres and Civil Servants from the viewpoint of a variety of results and evaluation figures", by Doan Van Dung, State Organization Journal,
No 7/2012; the essay "Improving the performance capacity of the cadres and civil servants - A challenge to Vietnam Reformation nowadays", Assoc.Prof/PhD
Vo Kim Son, State Organization Journal, No 200 (9-2012); the essay " Force of Qualified Cadres and Civil Servants for construction of a strong, effective and efficient government", PhD Bui Huy Khien, State Organization Journal, No 199 (8-2012); the essay "Renovate, improve quality of Management of Cadres and Civil Servants during
Trang 7Renovation Period" by Tran Dinh Thang and Nguyen Phuong Thuy, State Organization Journal, No 7/2012; the essay " Educate and Improve the force
of Cadres and Civil servants - A specific and specialized form of education"
by Assoc.Prof/PhD Luu Kiem Thanh, State Organization Journal, No 201(10/2012); the essay "Improving quality of the force of Cadres and Civil Servants in order to meet the requirements of developing the Socialist Law- Governed State of Vietnam " by MA.Nguyen Hong Chuyen, Democracy and Law Magazine, No 7(256), 2013; the essay "Evaluate, employ Cadres and Civil Servants in certain countries" by Le Quang, Communist Party
Development Magazine), No 6/2009; Year book of International Seminar
"Tendencies and Experiences of Management on Civil Servants from certain
countries" held by Ministry of Home Affairs, Asian Development Bank
organized in HaLong City, Quang Ninh province, 2006
In general, these works focus on analyzing the theoretical issues and thereal status of regime of public affairs and cadres, civil servants in Vietnam inorder to propose solutions to build a force of cadres and civil servantsmeeting the requirements of administrative reform and building a socialistlaw-governed state in Vietnam today
Furthermore, it is necessary to mention researches on the nationalpersonnel regime of foreign authors regarding reform of public servicesystem in the countries today in the trend of shifting from traditionaladministration to modern administration and development…
1.1.2 Researches related to Laws on Cadres and Civil Servants
Ministerial level research-project "Completion of laws regarding
responsibility of the leader director of Vietnam administration agencies nowadays - Situations and Solutions", 2009 by Institution of State and Law of
Ho Chi Minh National Academy of Politics;- Grass-root level project
"Responsibility of the leader director of Vietnam administration agencies Theory and Practice" led by Nguyen The Tai as the chairman, 2011; Monographic book " Laws on Cadres and Civil Servants at commune-level in Vietnam - Theoretic and Practical Issues", (Politics and Administration Publishing House), MA Mac Minh San; Book " Responsibility of Civil Servants for provision of public service during State Administrative Reform", National
-Political Publishing House, 2017, PhD Tran Nghi; Jurisprudence Doctoral
Thesis "Completion of legal regulations on public service, civil servants in Vietnam nowadays" by Lương Thanh Cuong, Faculty of Law, Vietnam National University, 2008; Jurisprudence Doctoral Thesis " Renovation and completion of Law on Civil Servants in our country", by Nguyen Van Tam, 1997; Jurisprudence Doctoral Thesis "Completion of laws on recruitment and nomination for civil servants in our country." by Nguyen Quoc Hiep, Institute of State and Law -
Vietnam Academy of Social Sciences, 2006
Trang 8Jurisprudence Doctoral Thesis "Completion of laws on civil servants, public service to meet the requirements of the State administrative reform",
by Ta Ngoc Hai, Graduate Academy of Social Sciences, 2011; Jurisprudence
Doctoral Thesis "Civil servants’ legal liabilities in the course of construction
of the law-governed State of Vietnam nowadays " by Ngo Hai Phan, Ho Chi
Minh National Academy of Politics, 2004; Jurisprudence Doctoral Thesis
"Material responsibilities of civil servants Under the Law of Vietnam nowadays" by Tran Thi Hien, 2008; Doctoral Thesis of Public Administration Management "Responsibilities of the leaders of Vietnam administration agencies " by Bui Thi Ngoc Mai, National Academy of Public Administration, 2015; the essay "Discuss legal reforms on salaries of cadres, civil servants in Vietnam today" by Le Thi Thanh, Journal of State and Law,
No 1/2013; the essay "Law’s amendment on ethics of public service in Vietnam" by Prof/PhD Pham Hong Thai, Legislative Research Magazine, No 5/2010; Monographic book "Public service's regulations" by PhD Nguyen
Canh Hop, Judicial Publishing House, 2011; Scientific Seminar
"Competence and responsibility of heads of the executive committee and authorities in the relation to collective executive committee, agencies and units" jointly organized by Communist Review and Central Organization
Commission, Bac Ninh Provincial Committee of the Party on 28/6/2012.Furthermore, it may refer to some articles and magazines written about the
responsibilities of heads of State administrative agencies such as "Differentiating positions, roles and functions of the Government and the Prime Minister" by the
author Nguyen Phuoc Tho, posted on http://xaydungphapluat.chinhphu.vn on
8/5/2008; the article "The regime of civil servants, public services and the responsibilities of the heads of administrative agencies of some countries" by
Pham Duc Toan, Le Dinh Mui, published on State Management Magazine, No
176 (September/ 2010), p.72-76; The article "Renovating the operation organization of administrative agencies, strengthening the rights and responsibilities of the heads of agencies" by Nguyen Van Thao posted on the
Information on State Administration Reform of Ministry of Home Affairs, No
12/2007 ; the article "Perfecting the law on public service, civil servants and legal responsibilities of the civil servants" by Thai Vinh Thang, published on Journal of Legislative Studies, No 02/2005, p 24-32; The article "Public affairs and public responsibilities in the Law on Cadres and Civil Servants" by Mr Tran
Anh Tuan, published on Journal of State Organization, No 11/2009, p 6-10; the
content "Overview of the legal responsibility regime of cadres, civil servants and officials" in the Curriculum of Vietnam Administrative Law, 2008;
The book "The World’s affairs - a View" by Nguyen Sy Dung, Knowledge Publishing House, 2007, including the contents about legal and political responsibility, p 34-37; the article "Clarifying the responsibilities in
Trang 9state administrative management" by Tran Thi Thanh Mai, published on the
Journal of State Organization No 11/2010 "The use of labor and employment inthe public sector expansion - Province of British Columbia" by Anne Richmondscholar - an expert from Canada's Policy Implementation Assistance Project(PIAP), presented at the scientific seminar "Law on Officials", jointly organized
by the National Assembly's Law Committee and the Policy ImplementationAssistance Project (PIAP in Hue on 11-12 March 2010
The researches in this group directly mention adjustment of the law oncadres and civil servants, thereby interpreting orientations and solutions toimprove the law on cadres and civil servants in general and the law onofficials.in particular
1.2 General evaluation of studying situation in relation to the thesis's topic
1.2.1 The research results inherted and developed by the thesis
- The published researches mentioned and analysed some contents aboutcadres and civil servants; organization of personnels and orientations toimprove management efficiency of cadres and civil servants, therebyclarifying some issues of cadres and civil servants in both institutional andpractical angles of implementation of law The published researches alsodirectly and indirectly referred to the law on cadres in our country in manydifferent angles This is a starting point and an important premise of thethesis for researching and analysing theoretical and practical issues aboutcadres in the context of speeding up completion of institutions and buildingthe socialist law-governed state in our country
- The above-mentioned scientific works have also contributed to clarify thetheoretical and practical issues of management of cadres and law on cadresagainst the requirements of life Among them, many interpretations, scientificcontentions have been applied to the practice and obtained positive results, suchas: renovation of recruitment and nomination of cadres; reform of salary policy;
- Many researches have relatively generalized the current situation ofcadres, civil servants and officials; shortcomings and inadequacies in theinstitution of management of cadres in our country; scientific principles andexperiences in organization of public service activities of some countries inthe world thereby enabling the author to study and compare with thecurrent status of cadres in our country and can explain and propose somesolutions to improve the law on cadres; improve the quality of statemanagement of cadres in our country
1.2.2 The issues that have not been thoroughly resolved should be further studied
Basing on inheritance and selection of previous studying results, the thesis continues to study and solve the following specific issues:
Trang 10Firstly, theoretically, it must be clarified:
- What is the law on cadres; analysing the characteristics and contents ofthe law on cadres; clarifying the role of law on content and in Vietnam
- Analysing and clarifying the influencing factors as well as conditions
to ensure implementation of law on cadres in Vietnam
- Studying the law on cadres and civil servants in some countries in theworld, learning about some experiences for completion of the law on cadres
in Vietnam
Secondly, practically focus on the following issues:
- Overal researching the development process of law on cadres in Vietnam from 1945 to present
- Analysing and assessing the current status of the law on cadres inVietnam, pointing out the advantages to be promoted, and finding out thelimitations and causes of the limitations
Thirdly, proving the necessities of completion of the law on cadres, identifying viewpoints and proposing solutions to upgrade the law on cadres in the context of building the socialist law-governed state and international integration.
Theoretical proofs of viewpoints and propose specific and comprehensive solutions in order to improve the law on cadres in Vietnam today
1.2.3 Research hypothesis and questions
1.2.3.1 Research hypothesis
The law on cadres in Vietnam, if sufficient, appropriate and organized, will create a premise and a basis for ensuring the quality of thecadres, contributing to enhancing the quality of human resources of theVietnamese political system today
well-The law on cadres in Vietnam has been formed but there are still gapsand low possibility of realization Therefore, improvement of the law oncadres in Vietnam is becoming an urgent issue, which is one of the decisivefactors in the process of building and improving the quality of cadres, civilservants, making significant contribution to the success of renovation of thepolitical system in Vietnam today
- To perfect the law on cadres in Vietnam, which solutions and opinions should it be based on?
Trang 11Chapter 2 THE THEORECTICAL ISSUES OF LAW ON CADRES IN VIETNAM 2.1 Concept of cadres and law on cadres in Vietnam
2.1.1 Concepts, characteristics of cadres
2.1.1.1 Concepts of cadres
In Vietnam, "cadre" is a term that has been used popularly in daily sociallife and in law with various understandings and uses causing difficulties inapproaching the connotation of the concept "cadre" in the viewpoint ofjurisprudence However, differentiation in law has been shown in this way oranother when it is stipulated three subjects working the agencies of theCommunist Party of Vietnam, the State, socio-political organizations, theyare the regular staff and entitled to payroll from the state budget includingcadres, civil servants and officials
From the fact that there is no unity in terms of awareness, differentiation ofsubjects, so it is difficult to give a concept ‘cadre’ with perfect and complete
connotation However, in our country, it can be said that cadres are Vietnamese citizens who are elected, approved and appointed to hold posts and titles in accordance with term of office in the agencies of the Communist Party of Vietnam and State as well as socio-political organizations at the central and local governments as the regular staff and entitled to payroll from the state budget 2.1.1.2 Characteristics of cadres
With the concept of cadres as mentioned above, some basiccharacteristics of cadres can be identified as follows:
Firstly, cadres hold posts and titles in accordance with the term of office
through election, approval and appointment mechanisms
Secondly, the work nature of the cadres associated with planning and
2.1.2 Concepts, characteristics, role of law on cadres
2.1.2.1 The concept of law on cadres
Referring to the law on cadres, it shall refer to the following key issues:
- Subjects under adjustment of the law on cadres
- Scope of adjustment of the law on cadres
Accordingly, consideration and interpretation of the scope of the law oncadres should be identified vertically, horizontally of the state organizationand the political system as well as additional relations associated with thesubjects as the cadres in practice
Trang 12From the above explanations, it is possible to give the concept: The law
on cadres is the overall legal norms promulgated by competent state agencies to regulate social relations in relation to rights, duties and responsibilities of cadres in the process of implementation of public duties and specific tasks.
2.1.2.2 The characteristics of law on cadres
Pháp luật về cán bộ là một bộ phận cấu thành của hệ thống pháp luậtnên bên cạnh những đặc điểm chung của pháp luật, pháp luật về cán bộ còn
có những đặc thù riêng:
Because the law on cadres is an integral part of the legal system, otherthan the general characteristics of law, the law on cadres also has its owncharacteristics:
Firstly, the law on cadres institutionalizes the Party's viewpoints and
guidelines on building cadres to meet the requirements of the renovationcause of the country
Secondly, the law on cadres has tight and organic relations with the law
on civil servants and public services
Thirdly, the law on cadres is recognized in many legal documents with
different value and legal validity
2.1.2.3 The role of law on cadres
The law on cadres plays an important role in managing and using thecadres in Vietnam:
Firstly, the law on cadres is a legal basis for selection, management and use of cadres.
Secondly, the law on cadres is a basis for cadres to do their tasks Thirdly, the law on cadres is the basis for controlling cadres’ activities Fourthly, the law on cadres is the basis for evaluating cadres.
2.2 Requirement and content of law on cadres in Vietnam
2.2.1 Requirement for law on cadres in Vietnam
Firstly, the law must clearly define the position and role of cadres.
To enable the cadres to really perform their responsibilities and takeresponsibility for their works, the position and role of cadres need to beestablished in a real manner In other words, only when the position and role
of the cadres are clearly defined, the real responsibilities of the cadres can bedefined and cadres can fulfill their responsibilities in a real way
Secondly, the law must clearly define the obligations and rights as well
as the responsibilities of the cadres.
To improve the responsibilities of cadres, the top requirement is that theassignment of responsibilities must be clear Therefore, to enable the cadres
to fulfill their responsibilities, obligations, rights and responsibilities should
be clearly defined
Trang 13Thirdly, the law must ensure compatibility between the factors: Obligations - Rights - Responsibility of the cadres.
This requirement means that the cadres cannot only accept their rightsbut does not fulfill their obligations and take no responsibility; it is alsoimpossible to require the cadres to fulfill their obligations and takeresponsibility without giving them adequate rights and interests Threeelements of Obligation, Rights and Responsibility of cadres must always bejointly established in a close and compatible relationship
2.2.2 Content of the law on cadres
2.2.2.1 Conception of the content of the law on cadres
The content of the law on cadres is understood as the specific rules of conduct issued by the State in the form of legal documents regulating social relations in relation to the legal status of cadres.
Legal status of cadres is the overall rights and obligations that create theposition of cadres in relation to other legal entities based on the legalprovisions Through the legal status of cadres, it is possible to distinguishand assess the position and importance of cadres with other subjects (civilservants and officials) as well as the duties, rights and responsibilities ofcadres in performance of the public affairs and assignments
The legal provisions on the legal status of cadres include: Scope ofsubjects as cadres; conditions and criteria to be appointed as officials; rights,obligations and responsibilities of cadres; management principles of cadres;reward and discipline of cadres All these regulations constitute the content
of the law on cadres
2.2.2.2 The basic contents of law on cadres
Basing on the provisions of the current law, it can be seen that thecontents of the law on cadres consist of the following basic contents:
Firstly, identify the subject of cadres.
Secondly, regulations on the process of election, approval, appointment, planning, transfer and rotation on cadres.
Thirdly, regulations on the rights and obligations of cadres.
Fourthly, regulations on the responsibilities of cadres.
Fifthly, regulations on conditions, standards, ethical standards of cadres Sixthly, regulations on conditions to ensure performance of public
services and duties of cadres.
In brief, with the contents of the law on cadres as mentioned above, it
can be seen that the regulation of law on cadres is very diversified andplentiful The regulations governing the operation of cadres are not onlyreflected in the legal documents on cadres and civil servants in general, such
as the Law on Cadres and Civil Servants; decrees, circulars guiding theimplementation but also expressing in many other legal documents related to