Doctoral thesis for public Administration: The inspection regime for legal normative documents issued by provincial authorities

Research to clarify the theoretical basis for inspecting LND issued by provincial authorities. Analyze, evaluate the actual implementation of inspection regime for these documents; identify ongoing problems, thus recommend solutions to improve the inspection regime for LND issued by provincial authorities.

MINISTRY OF EDUCATION AND

TRAINING

MINISTRY OF HOME AFFAIRS

NATIONAL ACADEMY OF PUBLIC ADMINISTRATION

TRAN THI THU HUONG

THE INSPECTION REGIME FOR LEGAL NORMATIVE DOCUMENTS

ISSUED BY PROVINCIAL AUTHORITIES

Major: Public administration Code: 62 34 82 01

DOCTORAL THESIS FOR PUBLIC ADMINISTRATION

(A SUMMARY)

HA NOI – 2019

This thesis has been completed at:……….……… …………

………

Thesis supervisors:

1 Ha Quang Thanh, Ph.D

2 Nguyen Thi Thuy, Ph.D

Examiner 1:

……… ……….………

Examiner 2:

……… ……… ………

Examiner 3:

……… ……….………

The thesis was be orally defended at the regional Examining Committee

Place: Room for defense of Doctoral thesis – Reference room… Building ……, National Academy of Public Administration No 77 - Nguyen Chi Thanh St - Dong Da District - Ha Noi City

Time: ………… on …….………

This thesis is available for the purpose of reference at National Library of Vietnam and Library of National Academy of Public

Administration

ALL PUBLISHED WORKS RELATED TO THE DISSERTATION

1 Tran Thi Thu Huong (2008), Profession of Office Administration, Ho Chi Minh City General Publishing House

2 Tran Thi Thu Huong (2009), The institution of state management in plant protection: Problems and solutions, Lead author of ministerial study, Ministry of Agriculture and Rural Development

3 Tran Thi Thu Huong (Lead author), Pham Thanh Dung, Mang Van Thoi (2011), Techniques of document composition and management, Phuong Dong Publishing House, Ho Chi Minh City

4 Tran Thi Thu Huong (2011), “Strengthen the inspection of state administrative documents nowadays”, State Management Review (189),

pp 29 - 31

5 Tran Thi Thu Huong (2014), Essay: “New policies in Circular No 07/2012/TT-BNV dated Nov 22nd, 2012 issued by Ministry of Home Affairs regarding document composition, management, circulation, archiving and storage at the office”, Seminar of Document and Administrative Technology – National Academy of Public Administration – Ho Chi Minh City campus

6 Tran Thi Thu Huong (Lead author), Pham Thanh Dung, Mang Van Thoi (2014), Techniques of document composition and management, Second edition, Phuong Dong Publishing House, Ho Chi Minh City

7 Tran Thi Thu Huong (2015), “The inspection of legal normative documents: Situation and solutions”, State Management Review (231),

pp 55-58

8 Tran Thi Thu Huong (2015), “Continuous improvement of the legal system in our country”, Journal of Home Affairs Studies (7), pp 5-8,13

9 Tran Thi Thu Huong (2016), “New features of inspecting legal normative documents issued by local authorities”, Published journal by College of Management for Agriculture and Rural Development II, No.3

in 2016

10 Tran Thi Thu Huong (2017), “Improving the capability of Human resources of implementing the inspection regime for legal normative documents issued by provincial authorities”, Published journal by College of Management for Agriculture and Rural Development II, No.2

in 2017

11 Tran Thi Thu Huong (2018), “Improving the inspection regime for legal normative documents issued by provincial authorities”, Published journal by College of Management for Agriculture and Rural Development II, No.2 in 2018

INTRODUCTION

1 Rationale

In order to perform their functions, duties, and authority of the

state management in society; the state administration bodies carry out

many different executive activities which are displayed on the surface

through specific forms One of the forms displaying the Jurisdiction

of state administration is published documents To guarantee the

quality of published documents, the documents have to be thoroughly

inspected Therefore, an inspection regime must be established,

especially for the legal normative documents (hereinafter referred to

as LND)

As per the regulation in Resolution No 51/2001/QH10 dated Dec

25th, 2001 by Standing Committee of the National Assembly,

inspecting LND is a duty transferred from The Supreme People’s

Procuracy to the system of state administrative agencies The

Government assigned the Ministry of Justice in particular to carry out

this duty Based on this, the Government issued Decree

No 40/2010/ND-CP dated April 12th, 2010 on regulations for

inspecting and processing LND Currently, the main and direct legal

basis for the authorities to perform the inspection of LND are the

2015 Law on Promulgation of legislative documents, and Decree No

34/2016/ND-CP (dated May 14th, 2016 and effective on July 1st,

2016) by the Government on detailing articles and measures of

implementing the aforementioned 2015 Law Despite achieving such

important results, there still exist many limitations of inspecting

LND The reason is that, regardless of the abovementioned Law and

Decree, the inspection regime for LND is incomplete Up to now, no

comprehensive inspection regime for documents in general and

documents issued by provincial authorities in particular have been

established for the inspection to produce meaningful results

careless mistakes in the process, and contribute to improve the quality and effectiveness in the promulgation of LND in general

CONCLUSION OF CHAPTER 4 From studying the legal frameworks, conduct a survey to examine the actual state of implementing the inspection regime for LND issued by provincial authorities in a few selected provinces, and then recommend inclusive, scientific, objective and practical solutions to improve the self inspection regime of LND issued by provincial authorities

GENERAL CONCLUSION

By incorporating many research methods to analyze and evaluate the current inspection regime for LND issued by provincial authorities in our country, the thesis has fulfilled the study purpose with results such as: First, study the theoretical and scientific basis for the inspection regime for LND issued by provincial authorities; Secondly, organize and analyze current legal policies of the inspection regime for LND issued by provincial authorities; Thirdly, analyze and review the actual state of implementing the inspection regime for LND issued by provincial authorities; Fourthly, propose comprehensive solutions to improve the inspection regime for LND issued by provincial authorities

The aforementioned solutions, if implemented as concerted actions in practice, will produce positive results from inspecting and processing documents; thus contribute to “cleanse” the LND as well

as the legal system in the pursuit of social sustainable development and building a socialist state ruled by law of the people, by the people, and for the people./

between the agencies in charge of inspecting and processing

documents with agencies of mass media

4.2.3 Improving the capability of staffs in charge of

implementing the inspection regime for legal normative

documents: First, Department of Justice should pay attention to

building an inspection organization of staffs with focus on good

professional qualifications and moral values Secondly, improve the

implementation mechanism to establish legal titles Thirdly, offer

training courses to help improve the capability and skills of staffs in

charge of inspecting LND Fourthly, build an assisting team for

inspecting LND issued by provincial authorities Fifthly, develop the

regulations and methods for the society to participate in the

inspection process Sixthly, inspect, examine, and penalize the

administration agencies responsible for implementing the inspection

regime for LND

4.2.4 Guaranteeing the requirements for implementing the

inspection regime for legal normative documents: First, develop

and improve the database system used in inspecting LND Secondly,

ensure the budget for inspecting LND Thirdly, regulate and ensure

the minimum requirements for inspecting LND in practice

4.2.5 Improving the methods and standardizing the procedure of

inspecting legal normative documents: Following the solutions to

let the Offices of People’s Council and People’s Committee self

inspect LND issued by provincial authorities, the procedure of the

self inspection shall be implemented in this order: The proposed draft

of LND must be posted for 05 days on the information portal of the

provincial People’s Committee so that competent agencies and

people, especially the experts, can contribute to the proposed daft to

ensure the practicality of the published documents

Regulations for the procedure of inspecting and processing LND

should be promulgated by Department of Justice to reduce the

With this meaning and significance, the studying of improving inspection regime for LND is a current issue and requirement demanded by today’s reality; as well as helps to improve the strength and minimize the weakness of the inspection process This is also the reason why I choose to do research on: “The inspection regime for legal normative documents issued by provincial authorities” for my doctoral thesis

2 Aims and Objectives of study 2.1 Aims of study: Research to clarify the theoretical basis for inspecting LND issued by provincial authorities Analyze, evaluate the actual implementation of inspection regime for these documents; identify ongoing problems, thus recommend solutions to improve the inspection regime for LND issued by provincial authorities

2.2 Objectives of study: Summarize the literature review related

to the thesis topic so as to highlight the questions that this thesis derives from and needs to clarify in its research contents; Discuss, clarify, and codify to illuminate the theoretical basis for inspecting LND issued by provincial authorities in Vietnam; Research the theoretical and scientific framework for inspecting LND; Analyze, evaluate how the inspection regime for LND issued by provincial authorities is implemented in practice, indicate the strengths, limitations, and their excuses; Propose solutions to improve the inspection regime for LND issued by provincial authorities

3 Subject and Scope of study 3.1 Subject of study: The inspection regime for legal normative documents issued by provincial authorities

3.2 Scope of study: From the perspective of state administration, the study was conducted to examine the inspection regime for LND issued by provincial authorities since the effective date of Decree No 40/2010/ND-CP (issued on April 12th, 2010 by the Government) on

regulations for inspecting and processing LND From 2014 to 2015,

research data were collected under the form of survey with 275

respondents in a limited number of provinces However, the study

was being conducted in a transition period when the 2015 Law on

Promulgation of legislative documents and Decree No

34/2016/ND-CP (effective on July 1st, 2016) were issued Therefore, for the study

to be updated, the researcher did another survey in 2018 with 96

respondents in a small number of Central and Southern provinces

4 Methodology and Research methods

4.1 Methodology: The thesis is based on the rationalization and

methodology of dialectical and historical materialism from Marxist–

Leninist theory; as well as utilizes our Party and Government’s

viewpoints and institutions on building a socialist state ruled by law

The methodology of dialectical materialism is the main approach

throughout the thesis The subject matters of the study (such as LND,

the inspection regime for LND, and local authorities) are examined

with the focus on mutual interactions in an overall picture with

regards to economic-social conditions, request and purpose of state

management

4.2 Research methods: For the study, I employ these scientific

methods to investigate the research matters: Approaching method,

Summary method for practical results, Analysis method, Compilation

method, Contrasting method, Expert method, Statistical and survey

methods in social research All of these methods are incorporated in

the study to guarantee both the generic and specific quality of the

research, with the goal of providing a comprehensive evaluation of

the inspection regime for LND issued by provincial authorities

5 Scientific hypothesis and Research questions

5.1 Research questions

- How is the inspection regime for LND issued by provincial

authorities interpreted? Why should the inspection regime for LND

4.2.1 Improving the inspection regime for legal normative documents”: First, improve and unify the institutional policies; improve the legal basis for the authority of inspecting and processing documents; improve the legal institutions regarding inspection subjects, contents, procedures, and the compensation responsibility for the physical and mental damage to persons or organizations caused by unlawful LND; promulgate a standard procedure of inspecting LND Secondly, Department of Justice should help the Government with advices on promulgation of recruitment standards for staffs with legal background to be in charge of inspecting LND Thirdly, promulgate detailed regulations regarding responsibilities of the competent agencies and people who refused to handle the unlawful LND or failed to handle them in compliance with the law Fourthly, Department of Justice should help the Government with advices on promulgation of budget management for inspecting and processing documents; replacing the Joint Circular No 122/2011/TTLT-BTC-BTP dated August 17th, 2011 on the estimation, management, use and finalization of expenses for inspection, handling, revision and systemization of LND; to guarantee the consistency with Decree No 34/2016/ND-CP and updates with reality, create favorable conditions for inspecting and processing documents

4.2.2 Improving the organizations in charge of implementing the inspection regime for legal normative documents: First, consolidate organizations and staffs for inspecting LND in a timely manner Join the Delegation of the National Assembly with the Offices of People’s Council and People’s Committee Secondly, improve the coordination mechanism among competent subjects in charge of inspecting LND Thirdly, develop a collaborative relationship between the inspection agencies and the promulgation agencies of LND Fourthly, effectively utilize the relationship

there are many limitations beside the positive results: the mechanism

and regime of document inspection are not consistent and still

lacking; organizations of inspection are incomplete; there is a

shortage of staffs in charge, and they lack professional qualifications

and inspection skills; no comprehensive penalty policies for subjects

in charge of issuing unlawful documents; requirements for inspecting

documents are not fulfilled All of these factors were considered in

the surveys before and after the effective date of the 2015 Law, so

that the study could provide a general outlook of the transition

period From this, solutions to improve the inspection regime for

LND issued by provincial authorities would be suggested in the next

chapter

CHAPTER 4 DIRECTION AND SOLUTIONS TO IMPROVE

THE INSPECTION REGIME FOR LEGAL NORMATIVE

DOCUMENTS ISSUED BY PROVINCIAL AUTHORITIES

4.1 Directions to improve the inspection regime for legal

normative documents issued by provincial authorities

Improving the inspection regime for documents is guaranteeing to

follow these directions: First, firmly and thoroughly understand and

institutionalize strategies and policies of Communist Party and the

State in local administration; Secondly, improve the inspection

regime for LND issued by provincial authorities; Thirdly, ensure the

objective and scientific approach in implementing the inspection

regime for LND; Fourthly, improving the inspection regime for LND

includes guaranteeing the participation of all agencies, units and

individuals in compliance with the law; Fifthly, the inspection regime

must lead to action Sixthly, the inspection regime for LND must

connect to institution on building a socialist state ruled by law

4.2 Solutions to improve the inspection regime for legal

normative documents issued by provincial authorities

be created and implemented? What is included in the inspection regime for LND issued by provincial authorities?

- What is the position of inspection regime for LND issued by provincial authorities in the general regime of state management? What are the factors impacting the inspection regime for LND issued

by provincial authorities?

- How the inspection regime for LND issued by provincial authorities is implemented in practice? What are the results, limitations, and their causes?

- How can the inspection regime for LND issued by provincial authorities be improved?

5.2 Scientific hypothesis: The study is based on the hypothesis that

so far the inspection regime for LND issued by provincial authorities has not been properly implemented in many aspects, such as: the administrative agencies in charge of it, the methods and process of implementing it, the requirements for it, and the ineffective results from implementing it

The inspection regime for LND issued by provincial authorities plays an important role as a stage of state management If the regime was improved and refined, inspecting LND by provincial and municipal authorities in Vietnam would be much more effective, thus contribute to complete the legal system in the pursuit of building a socialist state ruled by law

6 Scientific significance and Practical value of study 6.1 Contributions of study

Inspecting documents is not a new issue, but inspecting LND issued by provincial authorities demands better and more systemic regulations, which is the new angle the study focuses on The regulations mention that inspecting documents is a form of displaying the Jurisdiction of state administration However, these regulations are scattered among many articles of law, whereas they

should have been compiled as a whole Further, the steps and forms

of implementing LND are not clearly determined As a result, from

the perspective of state management and the doctoral thesis outlook

of public state administration, evaluating theoretical and legal basis

of the inspection regime for LND can help to organize and categorize

these steps; which is also a new aspect of the thesis The third new

aspect of the thesis is that the solutions advised by the thesis are all

accompanied by new proposals for each solution on the meaning,

implementing terms and conditions; which will guarantee the

practicality of these solutions

6.2 Scientific significance and Practical value

The study findings contribute to improve the cognitive theory on

the inspection regime for LND issued by provincial authorities The

thesis conclusion and recommendations are drawn from the research

results supported by theory and reality Therefore, this thesis is a

source of reference material for the policy makers and researchers to

consider, and can be applied to various authorities in creating and

implementing the inspection regime for LND This thesis can also

serve as research, teaching and study material

7 Organization of study: Beside Introduction, Conclusion, and

Bibliography, the thesis includes 4 chapters in this order: Chapter 1

Literature review on the inspection regime for LND issued by

provincial authorities; Chapter 2 Scientific basis of the inspection

regime for LND issued by provincial authorities; Chapter 3 The

actual state of implementing the inspection regime for LND issued by

provincial authorities; Chapter 4 Direction and solutions to improve

the inspection regime for LND issued by provincial authorities

CHAPTER 1 LITERATURE REVIEW

1.1 Foreign and domestic studies and publications related to the

thesis topic

3.2 General review of implementing the inspection regime for legal normative documents issued by provincial authorities 3.2.1 Strengths

3.2.1.1 Creating the inspection regime for legal normative documents: Based on LND promulgated by state agencies, local authorities have these documents localized in accordance with their features and situations

3.2.1.2 Implementing the inspection regime for legal normative documents: Organizing the units and staffs for inspecting documents, ensuring requirements are met for successfully inspecting and sending LND for inspection

3.2.2 Limitations and causes 3.2.2.1 Creating the inspection regime for legal normative documents: First, guidelines for inspecting and processing documents issued by local authorities are not promulgated in a detailed and timely manner Secondly, there are no regulations regarding the recruitment standards for staff with legal background to

be in charge of inspecting LND Thirdly, there are no detailed regulations for dealing with the agencies and people in charge who are responsible for composing, signing on and promulgating unlawful documents Fourthly, there are obstacles and difficulties in regulating budget management for inspecting and processing LND Fifthly, the mechanism of inspecting LND does not include regulations on a standard procedure for inspecting LND

3.2.2.2 Implementing the inspection regime for legal normative documents: The regime is incomplete, lacking the organization of inspection staffs The staffs’ capability does not meet the standards and requirements for the inspection regime are not fulfilled

CONCLUSION OF CHAPTER 3 The conclusion from studying the actual state of implementing the inspection regime for LND issued by provincial authorities is that

Regime implementation skills: Training courses mostly

concentrate on new legal policies and professional knowledge There

is no training course for regime implementation skills such as:

coordination skills, teamwork skills, conflict resolution skills in the

process of inspecting and handling documents; so that the staffs in

charge can improve the implementation of the inspection regime for

LND in practice

The coordination among subjects in charge of inspecting legal

normative documents: In practice, there is not a lot of emphasis on

the coordination mechanism between Board of Legal Affairs,

Department of Justice and other Departments and Divisions in

inspecting and processing LND As a consequence, the effectiveness

of document inspection is limited

3.1.3 Methods and procedure of inspecting legal normative

documents

3.1.3.1 The result of inspecting and processing legal normative

documents: Actual collected data confirm that a high number of

unlawful LND were detected Nevertheless, there is no focus on how

to deal with the competent agencies, people in charge or advisors

who were responsible for the composition of unlawful LND, or who

detected the unlawful LND but failed to handle the cases or

mishandled them

3.1.3.2 The procedure of inspecting legal normative documents: In

practice, the procedure of inspecting LND has not been promulgated

in a cohesive and detailed format by any state agencies For that

reason, local authorities studied and issued the procedure of

document inspection on their own

3.1.4 Requirements for inspecting legal normative documents

Evaluating the actual state of fulfilling the requirements for

inspecting LND, including: budget, database system for inspecting

and processing documents; facilities and equipment

1.1.1 Foreign studies: In addition to studies on the inspection regime for LND issued by provincial authorities in Vietnam, I also searched for foreign documentation on the same subject for reference Nevertheless, there is almost no research paper on the inspection regime for LND issued by provincial authorities that is equivalent to Vietnam within the foreign publications that I had the chance to review Consequently, it is plausible to say that the inspection regime for LND issued by provincial authorities is exclusive to Vietnam

1.1.2 Domestic studies: Other than law and regulations for inspecting LND, nowadays there are many social studies and publications related to this topic Specifically, I categorize those material into these subjects: Studies on local authorities, Studies on LND, Studies on the inspection process and regime; and into these types: monographs, social research projects, journal articles, and dissertations

1.2 Review of studies and publications related to the thesis topic After reviewing other studies, my observation is as below:

First, other abovementioned books, research projects, and dissertations discussed and studied in depth regarding theory, inspection and processing of LND, etc However, they haven’t mentioned the topic of the inspection regime for LND, which will be the theoretical center of the thesis

Secondly, further as their research studies have touched on these topics, there still exist many unclear issues: the role of provincial authorities in inspecting LND, the inspection regime for LND issued

by provincial authorities, the factors affecting the inspection of LND issued by provincial authorities Despite the well-discussed theory structure of documents from the aforementioned works, these three issues need to be clarified in view of scientific and legal basis This is

the background for the theoretical chapter that the thesis will focus on

later

Thirdly, since there is no theoretical reference to the inspection

regime for LND, there is also no practical evaluation of these

particular matters: the lack of codification for legal basis of

inspecting documents; the lack of evaluation of provincial

authorities’ implementation of inspection regime for LND to identify

the strengths, limits and their causes; other proposed solutions to

improve published documents but not the inspection regime for LND

Fourthly, most of other research studies put the emphasis on the

theory and reality of state agencies or local authorities in general

There is no comprehensive research paper on the inspection regime

for LND issued by provincial authorities

These observations are the focal points of my thesis After

reviewing other aforementioned works, I can affirm the topic that I

choose for my doctoral thesis does not overlap with other published

research papers

1.3 Main problems to be solved in the study

This thesis puts the focus on solving these particular research

problems: First, the definition, nature, necessity and requirement for

creating and implementing the inspection regime for LND issued by

provincial authorities; Secondly, regarding the institutions of the

inspection regime for LND issued by provincial authorities,

organizing and analyzing the current legal policies of the inspection

regime for LND issued by provincial authorities; Thirdly, regarding

the inspection agencies, including the structure of organization and

implementation team, the coordination between agencies in charge of

inspecting LND issued by provincial authorities in order to identify

the strengths and limitations of this process and also their causes;

Fourthly, the implementing methods and requirements of the

inspection regime for LND issued by provincial authorities; Fifthly,

Order, procedure, display format and technique 177 64,36

Source: Survey data collected in 2014-2015 The table 3.4 shows that 200 out of 275 respondents (72.73% in total) considered the legal basis of published documents; 201 out of

275 respondents (73.09% in total) reviewed the competence to promulgate documents; 196 out of 275 respondents (71.27% in total) considered if the document contents conform to the laws or not; 177 out of 275 respondents (64.36% in total) reviewed the order, procedure, display format and technique of documents; 153 out of

275 respondents (55.64% in total) reviewed the effect of documents The table 3.6 shows that 61 out of 96 respondents (63.54% in total) considered the legal basis of published documents; 56 out of 96 respondents (58.33% in total) reviewed the competence to romulgate documents; 73 out of 96 respondents (76.04% in total) considered if the document contents conform to the laws or not; 56 out of 96 respondents (58.33% in total) reviewed the order, procedure, display format and technique of documents; 2 out of 96 respondents (2.08%

in total) reviewed the effect of documents

Table 3.6 The amount and ratio of requirements staffs reviewed when inspecting legal normative documents

Unit: % Inspection requirements Amount Ratio

Competence to promulgate documents 56 58.33 Document content conform to the laws 73 76.04 Order, procedure, display format and technique 56 58.33

Source: Survey data collected in 2018 Two tables above confirm that the inspection staffs have a fairly good knowledge of requirements for document inspection, including elements such as document legitimacy and reasonability