Bring life into law and bring law into life-story about making law and enforcing law in Viet Nam

Phòng Thương mại và công nghiệp Việt Nam, Trung tâm WTO và hội nhập, TS. Nguyễn Thị Thu Trang chủ biên, Rà soát pháp luật Việt Nam với các cam kết của Hiệp định thương mại tự do Việt Na[r]

BRING LIFE INTO LAW AND BRING LAW INTO LIFE– STORY ABOUT MAKING LAW AND ENFORCING LAW IN VIETNAM

ASSOCIATE PROF.DR NGUYEN HOANG ANH

School of Law, Vietnam National University

There are many reasons for the abundance of Vietnamese legal normative documents: being a country very much influenced by the Civil Law traditions, written laws are prefered

As a socialist regime, Vietnam had a philosophy of treating written law as the only source to ensure people's sovereignty Even after Doi Moi - when the economic and social context and legal concepts have gradually changed, the "inflation" of legal normative documents has not stopped Facing with new problems in practice, the legislature and administrative agencies always use rules to guide implementation The presence of the state in almost every area of social life explains the inflation of legal normative documents Finally, the role of the court is still low; the new precedences are officially recognized from 201597, which once again affirms the near authoritarian position of the written law source

Legal normative documents play an important role in economic development and social stability in Vietnam Legislature in recent years has made great strides: the law-making process has become a common event of the society - typically the amendment of the 2013 Constitution; the legislative process has been constantly improved, in which policy analysis is promoted as an integral part of law making It can be said that these are efforts to "bring life into the law", that is to make the law more feasible But in fact, the quality of legal documents

is still limited and one of the consequences is that "bringing law into life" is difficult

The following article addresses the limitations and new reforms in drafting and enforcing legal documents in Vietnam

1 “Bring life into law”: to enforce well, it is necessary to start from the law-making

There is a situation in Vietnam: there are many laws but the gap between law and reality

is still far away The situation of "inflation" of legal normative documents in Vietnam is quite serious: in the period 2005-2008, an average of 860 legal documents per year and nearly 2,560 non-normative documents (official letters, notices), directives) issued) Particularly in the financial sector, by the middle of 2017, the Government submitted to the National Assembly 2 bills; submit to the National Assembly Standing Committee a resolution The Ministry of Finance shall submit to the Government and the Prime Minister for promulgation 36 projects; including 17 decrees, 2 decisions and 17 projects Currently the Ministry of Finance currently has 200 circulars issued by the Ministry It is worth mentioning that the "life expectancy" of the documents is very short, only 2-3 years must be abolished, amended or substitued!

Many laws but some legal regulations are not always compatible with practice nor

97 Up to now (2019) there are total 26 case laws which have been published openly by the Supreme court in Vietnam i: https://thuvienphapluat.vn/tintuc/vn/an-le/

facilitate development The story of Enterprise Law is typical: after many Laws (2000; 2005; 2014), there are still many inadequacies in the provisions of the Enterprise Law Regarding procedures, there is a dispersion of business registration procedures between the Enterprise Law and some specialized laws whereby some enterprises register to establish at specialized agencies, instead of registering at the agency Business registration, such as auctioning enterprises registered assets established at the Department of Justice under the Law on Property Auction, a law counselling organization registered at the Department of Justice under the Law

on Lawyers This causes obstacles, difficulties, costs and disadvantages for businesses involved

in restructuring or expanding their business, because if an enterprise registers its business under the Enterprise Law, it must be dissolved and establish a new business if you want to completely switch to a new field of business that is required by the law to register at a specialized agency - for example, Department of Justice, Finance The consequence is that in addition to the costs of implementing relevant administrative procedures; then the business loses the continuity in business, does not take advantage of the image benefits, the built brand Likewise, to be able to start a business, the enterprise must complete 5 administrative procedures, including: business registration at the business registration agency, making a seal at the seal-making institution, informing the specimen of the seal with the business registration agency, opening an account and notifying account information to the business registration agency, However, in practice, some of the procedures outlined above are no longer necessary, such as the announcement of seal forms There are also some other unnecessary administrative procedures as required on reporting information of company managers (Article 12), requesting business registration agencies to regularly send business registration information to all districts, towns and cities (Articles 34 and 46), Regarding the content, some provisions of the Law have not really facilitated shareholders to exercise their rights Some "invisible" regulations create barriers for shareholders in protecting their legitimate interests or being abused by major shareholders and companies, causing losses to shareholders In which, Clause 2 of Article 114 stipulates that shareholders must have at least 6 months to own shares to be entitled to nominate candidates to the Board of Directors This regulation has limited the rights of shareholders, especially in the case of business mergers and acquisitions Many shareholders after buying a huge amount of shares but difficult in restructuring the company, re-establish the management and administration apparatus, improve corporate governance

Objective context also greatly affects the quality of policies and laws As a developing country, strongly influenced by the context of globalization, the legal policies in Vietnam are subject to multi-dimensional impacts WTO accession has made significant changes to the Vietnamese legal system Recently, the Vietnam-EU Free Trade Agreement (EVFTA) has officially been signed by the two sides on June 30, 2019, which will greatly affect Vietnam's legal and economic institutions New free trade agreements have a wide range of commitments, covering not only traditional trade fields (such as goods and services ) but also the first commercial sectors of Vietnam which the Government had commitments (such as State-owned

enterprises, public procurement .), even non-commercial issues that are directly linked to commercial activities (such as environment, sustainable development ) The impacts on Vietnam's legal system are also expected in the direction of: "will create a new wave of institutional reforms for Vietnam, thereby improving the quality of the legal and legal policy system, business environment, creating a fundamental foundation for sustainable development and benefits for domestic investors as well as foreign business partners, especially from the European Union (EU)‖ Before that event, reviews and updates on legal documents were conducted How on the one hand, the documents are compatible with international law, on the other hand, are still enforceable in the institutional context and support conditions in Vietnam, these requirements pose a big challenge to the legislator

Discussing inadequacies in the current legal system, studies have shown limitations from policy content as well as from text presentation techniques

Why is the quality of the legal system still low? Many studies have shown that inadequacies come from core content - that is, or policy making in legal documents - as well

as from technical expression and text editing

Policy is the answer to the problems posed in life Because the issues of life are not recognized, policy and legislative solutions are not defined in advance, those who draft the documents often only make general provisions As a result, draft legal normative documents are cumbersome and embrace: all related issues are mentioned, but policies and solutions are not always clear This is also one of the reasons why the law slows down to life

"It is not advisable to make the law subjective because the resources of the country can be consumed on things that are not necessarily needed." In order to ensure objectivity, the legislative process needs to have research, survey and assessment of the impact of law on the aspects of socio-economic life, getting people's opinions, especially those affected by the upcoming bill Priority is also needed for policies The goal of social reform can be very good, but it is necessary to consider the priority of the adjustment issues in the law Thi political leadership approves policy based on priority analysis: whichever is more important to be dealt with first, whichever is less important Without priority selection, "less important long-term bills can weaken drafting capacity, making the issuance of really urgent documents stall."

Legal impact assessment (RIA) includes in-depth study of activities associated with the process of formulating policies and formalizing research results with an independent report Carrying out RIAs is to find an optimal method, which can help to provide a reliable answer to issues that public policy reality poses urgently and effectively, transparent and inexpensive

The benefits of policy analysis are undeniable According to World Bank: „ a key tool for governments to manage more complex and diverse societies Regulations allow rulemakers to better manage and balance competing social and economic interests‖98

Or the experience of

98 World Bank Group, Global Indicators of Regulatory Governance: Worldwide Practices of Regulatory Impact Assessments, xem tại:

OECD countries shows that: ―RIA can be a great tool to make cost-effective legal decisions and reduce unnecessary or poor quality regulations RIA helps make the decision-making process more transparent and encourages consultation, participation of affected groups, and it contributes

to improving government engagement and internal information‖

Without ignoring the good experiences in drafting laws from developed countries, in Vietnam, the Law on Promulgation of Legal Documents in 2015 passed by the National Assembly on June 22, 2015 has new provisions: separating policy development from drafting laws An important highlight of the policy development process is the assessment of policy impacts In each policy, in the proposal to build laws and ordinances, it is required to clearly state: issues to be addressed and objectives of policies and solutions to implement policies; positive and negative impacts of the policy; cost, benefits of solutions; choose the agency's solution, organization and the reason for the selection; assess the impact of administrative procedures, gender impacts, etc Thereby studying, analyzing, evaluating solutions, providing

to competent agencies, so that they can choose the best solution That is the legal impact assessment (Regulatory Impact Assessment-RIA) With that importance, since 2008, RIA has become a mandatory process in legislative activities in Vietnam Through consulting 119 officials and civil servants who directly participated in the drafting, appraising or verifying projects, draft legal documents showed that 100% of respondents said they knew RIA Because of this, policy analysis of legal documents has made positive changes over the years

In 2015, there were 22/27 laws passed by the National Assembly with policy analysis, there are 5 laws without RIA reports As of April 2016, the 11th National Assembly XIII session passed 7 bills The only law without a policy analysis report is the International Treaty Law However, practice shows that sometimes policy analysis is still formal For example: The RIA report of the Higher Education Law lists 9 impacts, but does not specify which subjects are affected by any specific policy options but generally assess the entire draft Law CIEM's research (Central Institute for Economic Management) collaborated with USAID and VNCI assess that ―In general, the quality of most RIA reports is very poor, often with unclear layout, many reports copying the same content, not clarifying the problem of shortcomings really need to pay attention, not clearly explaining and causing the causes of such shortcomings, policy objectives and main analysis books are too general, slogan, not convincing ‖

What causes the inefficient implementation of RIA in Vietnam? Difficulties come from many sides, but the most significant is still from the current institutional system Research on RIA in developed countries, experience shows that: "Implementing RIAs is an antidote effective though often confronted with obstacles such as institutional capacities, over-or under-regulation or poorly designing regulatory frameworks (World Bank 2010b ) " Or: ―The experience of OECD countries has shown that there is a clear and close relationship between RIA and an effective development process from the direction of the entire http://documents.worldbank.org/curated/en/905611520284525814/Global-Indicators-of-Regulatory-Governance-World wide-Practices-of-Regulatory-Impact-Assessments.pdf

Government The RIA should be supported by a dynamic regulatory policy and by strong regulatory agencies and other complementary and supportive tools to ensure maximum transparency and accountability in all stages of the process‖ In Vietnam, the legislative RIA policy is clear, but the problem lies with the institutions and institutions involved in the legislative process, capacity and additional conditions to implement the RIA process

Technical difficulties also hinder policy analysis According to the Law, the RIA report must evaluate six types of impacts, six criteria for assessing impacts when drafting a bill including: economic and social impacts (mentioned in the RIA report) ); gender impacts; impact on administrative procedures; impact on the legal system; environmental impact The determination of the six criteria above is not always clear; on the other hand, specific contents

to determine criteria are not always specific For example: assessing the economic impact and assessing the impact on administrative procedures are based on criteria such as the necessity

of regulations; possibility; Cost of benefits, compliance costs Economic impacts can be quantified into money, but social impacts, inequality reduction, etc often difficult to quantify Therefore, most RIA reports only focus on analyzing economic policy from a cost-benefit perspective, but also mainly stop at a qualitative level Investment resources for conducting research, surveying and buying data for policy analysis are not enough According to the Policy Quality Improvement Program (PERQ) survey from 2011, up to 80% of respondents said that funding for RIA implementation is not enough According to Circular 192/2010 / TTLT - BTC - BTP - VPCP on December 2, 2010, the budget for RIA implementation is only from 4 million with simple RIA; VND 6 million (with full RIA) In addition, there is no permanent agency to support the implementation of RIA, no guidance, training, provision of shared databases (eg statistics, basic calculation parameters) and calculation help tool ―It is clear that to get quality RIA reports with the participation of skilled, experienced experts in policy analysis, cost-benefit calculations and consultations with stakeholders Relevant while performing impact assessment, the current financial regulations are too inadequate, completely unable to meet the actual needs, reflecting a very old thinking about the motto of law ―fast, much, well, cheap"

For effective drafting of law, additional conditions such as simple administrative procedures are needed; compliance in law implementation; accountability ―Designing regulations can be improved by using a variety of tools to assess existing laws and regulations

or proposed regulations In addition to RIA, these tools include: simplifying administrative procedures; measures to promote transparency and communication; alternatives to regulations; compliance and enforcement; and tools to support administrative responsibility and accountability (it is important for the rules to take effect) Regulatory tools should be supported together and should work together to help create more effective regulations These conditions are still lacking in Vietnam: the reform of administrative procedures launched in 2010 has eliminated many procedures, but there are still many "child licenses"; Compliance with laws and implementation of due diligence is unclear - this issue will be presented in Part 2

Data is also an essential condition for evaluating the impact of text, so that the optimal policy can be selected But even in OECD countries, data is still a problem ―OECD countries often face problems in data collection Data needed to conduct good analysis are often lacking and collection strategies often fail because it is too time consuming or too costly Providing selective data of stakeholder groups seeking to promote their own departmental interests has also become a matter of real concern A common problem is not to fully utilize the potential

of full consultation strategies both in terms of data sources and how to verify data quality and validity of assumptions

In Vietnam, the issue of data for policy analysis is still much more difficult, since there is almost no connection between state agencies in sharing common data warehouses So far, the Government Office is cooperating with 47 ministries, agencies and localities to deploy and connect, including testing and sending electronic documents with 18 ministries, branches and localities In the coming time, it will build a national communication axis with advanced technology of the world as an integration platform, sharing data between information systems, databases , first of all to serve and receive electronic documents according to the roadmap stipulated in Decision No 28/2018 / QD-TTg But basically, so far the most basic elements of open data warehouses in Vietnam have not been completed The report on the implementation

of e-government in 2018, the Government Office pointed out that the biggest shortcoming is that it has not built an open data platform: " platform system connecting, connecting, integrating Data sharing (NGSP) is slowly deployed, electronic data sharing (LGSP) platforms in unfinished ministries, sectors and localities Some important national databases

in e-Government construction such as: Population, land and finance are still slow to implement, resulting in sharing and sharing of unrealized information systems, affecting the e-Government implementation The handling, exchange, sending and receiving of electronic documents internally and between state agencies have not been effective; document and executive management system of a number of different ministries, branches and localities"

The consequence is that the RIA policy impact assessment makes the issuance of policies more costly, which may seem contrary to one of the objectives of this activity to increase efficiency However, the biggest barrier is the opposition of management officials at ministries As in many developing countries, there is this barrier in Vietnam: drafted officials may still doubt the effectiveness of the economic analysis method; they have a mind in mind; they may think that economic analysis hinders negotiation and compromise in the process of issuing policies; moreover, they may have their own interests to oppose economic analysis

Drafting laws must start from executives - that is, from the objects targeted by the bill

- from the people and businesses What businesses are in need to promote business, individuals need to do what they can to develop freedom but still respect other people's rights and public spaces.vv Law-making agencies recognize the problems that arise in society and the need to regulate laws on those issues, thereby deciding whether to issue new or amend, supplement and abolish rules

However, the difficulties of the problem also come from the drafting agencies: In Vietnam: " the laws start from the fact that the law enforcement officers discover difficulties and obstacles and propose changes to current law‖ More than 80% of the draft law is conducted by the Government management ministries under the policy Therefore, more or less, legal solutions reflect the prism, or more deeply, the interests of the management agency itself In order to have good laws, the interests of the executor and society should be higher than the interests of the regulatory authority Here arises the problem between social development and the need to ensure state management order The drafting of the law, if done well, requires participation, the bill must reflect the objective needs of social life

The law of promulgating legal normative documents in 2015 considered participation

as an important factor in law making The organization of consultations with relevant agencies and organizations on the draft law becomes mandatory Draft law and summary report, impact assessment report are posted on the National Portal of the National Assembly, the Government electronic portal in the time of posting at least thirty days The proposals for making laws must be sent for comments by the Ministry of Finance, the Ministry of the Interior, the Ministry of Foreign Affairs and the Ministry of Justice In particular, in order to enhance the openness and transparency in the reception and explanation of comments, Point c, Clause 1, Article 36, supplements the regulations of posting reports on reception and explanation on the electronic portal

Although the regulation is clear, so far the opinion collection has not been effectively implemented - due to the final stage: the synthesis and explanation of the feedback - still not public According to Ms Chi Lan, former Vice Chairwoman of Vietnam Chamber of Commerce and Industry, ―Ministries should consider enterprises as partners instead of being objects in the policy making process Policy consultations must take place really, without form, without asking and hearing Inadequacies also come from the people who are consulted:

"because the people's intellectual conditions are still not high, the conditions of the country are still difficult, the people still have too much work to take care of their daily lives, therefore many people are interested in commenting on draft legal normative documents (the number of concerns is mainly concentrated in cities and towns and also focuses on retired people) ‖

The editorial capacity is also often interpreted as a cause of a measure for success or inefficiency Drafting is the transformation of policies that have been developed and approved into law; is the translation of the language of policy into legal language - in the form of legal norms The drafting process requires full compliance with the procedures, sufficient time, resources, technical assistance to understand the handling and presentation of information resources and requirements In order to have a good draft, the editor must be experts, with all the necessary knowledge and skills, have a sense of responsibility, have the qualities, personality and sensitivity of the representative for the trend of positive behavior in society ‖ But in fact, many ministries and law-drafting staff are also in charge of professional work, and have not spent enough time for drafting Low funding, recruitment and job arrangement are

not correct, the regime of public liability is not clear - general weaknesses of Vietnam's governance are also limited in human resources for drafting laws

There is a solution to support law development: it is possible to mobilize the participation of research institutes, universities, societies, associations, experts, scientists into the activities (summarize, assessing the implementation of laws and legal documents, surveys and sociological surveys related to policies, gathering, research, foreign comparisons, policy impact assessment However, this also requires funding, to the attention and demand of the editor In fact, in Vietnam, the collection of opinions in this form is also inadequate: duplication (many agencies collect opinions of some experts); Invited participants at the conferences are mainly officials of state agencies, so these ideas in many cases only come from the will of the state management agencies, not from the side the people; there is an unbiased situation when the content of the opinion collection is related to the interests of the industry, the agency organizes to collect opinions

It is also worth discussing clearly in the legislative process to identify clear responsibilities among the actors in the legislative process Government and National Assembly are the main subjects of the legislative process But this stage is done differently in each subject The government is the one who recognizes policy issues and proposals, but recognizes the problem and points out policies that are only half the path of legislative activity

In order to have good policy choices, it is necessary to have an appraisal role of the National Assembly If the role of "filter" is well implemented, the National Assembly is an institution created by humans to argue for, search for the truth

However, in order for the policy to be consistent, the Government needs to be accountable to the policy proposed by it Policies that have been proposed by the Government, impact assessment and opinions of affected people - need to be pursued and protected by the Government But in Vietnam, there is a risk at this stage Under the current regulations, for the bill proposed before the National Assembly, the Government only has the opportunity to explain once only when submitting the bill to the National Assembly at the first session After that, the completion of the bill was handed back to the Standing Committee of the National Assembly In this second session, the Government no longer participated but seemed to give

up the work completely to the National Assembly And here is the possibility of new policies

or modifications that change the nature of the policy proposed by the Government This is a risk because the new policies introduced at this stage have not been studied, analyzed and evaluated, leading to the implementation is very difficult in practice In addition, the lack of government participation in the final stage of the legislature also affects the quality of the drafting of government documents The general psychology is that the National Assembly will fix almost all of it, then something that requires hard labor This risk is real in Vietnam:

in the opinion of experts of the National Assembly Office, bills are often revised up to 70% after submitting to the National Assembly

Thus, it is necessary to bind more government participation into the discussion stage

in the National Assembly - to create consistency in legislative intentions Regime of government members and of the main collective government needs to be renewed - in a clearer, more specific way and linked to government programs and actions

With the characteristics of an administrative body in a unified state apparatus, the government's "executive" position for the National Assembly is natural In the relationship between the three branches, apart from well-assigned authorities, there is also a

"co-ordination" and "control" relationship In Vietnam, with the unique characteristics of the inheritance model, the relationship between the government and the National Assembly is intimate The government plays a huge role in policy proposals, preparing bills for the National Assembly But the supervision of the National Assembly only rests on specific activities or credit rating for each member of the government, which also comes from the characteristics of the unified state apparatus, in the mechanism Party leader To balance this, there should be one factor: it is to define more specifically the responsibilities of the members,

in association with specific sanctions, which can create a responsible Government Legal responsibilities and political responsibilities of government members need to be clearly defined, and when determining responsibilities, need to be tied to specific sanctions, or tied to resignation pressure

Finally, the legislator's responsibility - through elected representatives - is key to the quality of the bill If the delegates are the true representatives of the interests of the voters, right in the process of making laws, the policies are most strictly protected or criticized by the people involved With the depth of the delegates, there will definitely be the best monitoring

of policies And for that to make the elections really become a place where people choose their true representatives In Vietnam, there are still many cases of parliamentary delegates working on a part-time basis, not really representing their constituency groups, and sometimes participation in legislative work is passive Reforming the National Assembly election system

is an important content in the coming years, as many studies show The election must be renewed in the direction of ensuring the principle of unconditional and conditional authorization, and it is necessary to restore the principle of free vote, expand and effectively focus on the principle of universal election, ensuring the original equal election rule, need to improve the regime of negotiation in elections

2 And “Bring law into life”

There is a situation in Vietnam: there are many laws but the gap between law and reality is still far away Many laws have not been strictly followed: despite the Law on Tobacco Control, smoking in public places is still popular; Laws and decrees of administrative sanctions have been banned but there is still a situation of littering, not sorting garbage at source Good law enforcement is a big challenge for Vietnam The evaluation of many researchers shows that the Vietnamese legal system is quite complete, but the implementation is still difficult For example, during the review process, the VCCI research team found that: "Detailed review results show that Vietnamese law is compatible with most

of EVFTA's commitments on customs and trade facilitation Trade - although Vietnam up to now (2016) has not yet made commitments in the WTO Trade Facilitation Agreement (with similar commitments EVFTA) In assessing the gap between the text and practice, the VCCI research team stated that: "to implement such commitments of EVFTA well, while it is not possible to correct maritime law provisions Related (due to the majority of them are compatible), Vietnam needs to focus on implementation to ensure effective customs operations in practice In the context of customs improvement, although there have been many improvements over the past time, it is still far from the desired effect (for example, Vietnam is still aiming to achieve a level of improvement Good administrative procedures at the ASEAN-6, ASEAN-4 levels, in the context of limited capacity and resources of the customs authorities and the fraudulent situation is still complicated, the obligation to ensure the implementation of the This EVFTA with "results/performance efficiency" is a huge challenge for Vietnam.‖99

Also, according to many researchers, it is worrisome not to be incomplete of legal documents but the ability to enforce them by public authorities According to Assoc Prof Dr Pham Duy Nghia: "To make the law live in life, it is crucial for me not to worship law documents, do not conceive that tens of thousands of words are made by the legislature, print out rules on paper may immediately become an oppressive order for all people to comply The law only lives when it is created by the heart of the people, applied by law enforcement agencies that are restrained by the integrity and supervision of the entire society, and especially the law that only lives when discovered and explained by judges on behalf of justice that behave independently and conscientiously‖100

On the side of state agencies, the law enforcement has never become a topic of great interest in Vietnam today The plan of state administrative reform in the period of 2016-2020 has given a clear orientation: "Implementing the direction of strategic direction from the focus

on building and perfecting the law to perfection and team law enforcement agencies, ensuring the strictness of the law, the interconnection, closely linked between the construction and organization of law enforcement‖101

Most recently, the Prime Minister approved the

"Innovation Project, improving the effectiveness of law enforcement organization in the period of 2018-2022" and the Ministry of Justice intends to propose the establishment of the Law on Organization law enforcement

However, the content of the Law on Law Enforcement is very controversial, because it is very difficult to have a common law on law enforcement; nor can there be a law enforcement agency Law enforcement is the common activity of the state apparatus and other subjects in

99 Vietnam Chamber of Commerce and Industry Dr Nguyễn Thị Thu Trang presiding the time to satisfy the guests, Rà soát pháp luật Việt Nam với các cam kết của Hiệp định thương mại tự do Việt Nam - EU về Hải quan và Tạo thuận lợi thương mại, sđd, tr.20

society If the general regulations on the responsibilities of agencies in law enforcement, will coincide with the provisions in the statutes of organization On the contrary, it is not feasible to develop specific regulations on responsibilities, legal enforcement processes of each agency, individual and individual So far, this bill has not yet been submitted

Will poor law enforcement be caused only by the ability of entities to implement laws, but not related to drafting laws? In our opinion, low law enforcement efficiency is caused by quality drafting of laws

According to Professor Ann Seidman, Robert B Seidman, when it comes to developing countries, the most commonly heard statement is: We have good laws, but that law is very poorly enforced But it cannot be considered a good law if it does not provide a basis for effective implementation A law with full of modern rules and content is not much different from the existing rules in developed countries - but still very difficult to do in Vietnam Obviously, these rules are not suitable for the current context In other words, only legalize what can be done Legislation must start from social issues that are arising Therefore, for a long time, researchers in Vietnam often referred to "bringing life into law" Good law enforcement is the basis for good law enforcement The law only lives when it is created by the people102

Also for good law enforcement, i) prepare carefully in the drafting process; ii) promote accountability of all law enforcement entities (especially state agencies); strengthening supervision of state agencies in law enforcement, especially courts

Firstly, right in the drafting process there must be preparations to bring the law into life Along with the enactment of a law, it is necessary to clearly identify the subject responsible; organizational structure; resources (financial, material) to implement Accompanying a law is a project with a directive policy, a roadmap for implementation, an organizational structure and personnel implementation, and a budget for each step of that roadmap Experience in Denmark shows that: laws are often not long - but the accompanying financial statements are often very massive Without specific funding estimates, the law will lack of feasibility

Secondly, monitoring the enforcement of the main law is to monitor the activities of state agencies and promote accountability

Once the law has been enacted, the execution of the monitoring belongs to the agency

in charge of that field - that is, the ministries in charge And at this time, the mechanism of monitoring law enforcement is synonymous with monitoring and supervising the activities of administrative agencies in the areas under their management The reporting of law enforcement in each area is the responsibility of each ministry And the supreme watchdog of law enforcement is parliament With specialized monitoring facilities (questioning at the parliament, supervision of committees, etc.) and the authority and means of pressure on

102 Phạm Duy Nghĩa, Making sausages or gio lua: a law making retreat, Legislative Studies Magazin, NA Journal, 2005, No

1, pp 42-46

legislation, administrative agencies are responsible for coming back Your law enforcement results In addition to supervising administrative agencies, other institutions such as auditing and social supervision etc In general, it is the accountability system, including:

- State accountability, including i) accountability to elected bodies; ii) internal administrative accountability (with administrative inspection mechanisms, internal inspection, inspection; audit activities, complaint and denunciation settlement activities); iii) judicial accountability (with administrative court; constitutional court) From another approach, accountability in the state system consists of i) horizontal control mechanisms (control - counterbalance); and vertical control of power (central - local; superior bodies and subordinate bodies)

- Political accountability: it is the responsibility of the state agency, of political positions -

to the party organization that selects and nominates themselves Political accountability is often not accompanied by legal sanctions but is linked to credibility, credibility of titles, and often the imposition of dismissal or resignation The role of the Communist Party of Vietnam is very important in implementing political accountability

- Career accountability: State activities are also a form of expertise, and especially in socially oriented states, the state's tendency to expand into public services such as culture, society, health Therefore, officials, civil servants and officials are also bound by professional ethical rules: rules of practicing teachers and doctors; notary profession; police, army; lawyer (for public attorneys)

- Social accountability: In the face of the power of public opinion, reinforced by information, state activities are now supervised by the public, associations and newspapers Cases and violations of the government can easily be discovered and spread by public opinion, through newspapers and informal channels such as social networks

In the current context in Vietnam, the capacity of public authority is at the core of law enforcement effectiveness, to the point that some experts have stated that: "it seems that the lack of a law or a simple rule is not as dangerous as lack of consensus of the entire administration and people enforcing the law If mandarins lack creativity, just passively wait for the superiors to lead the way: such a regime itself creates obstacles that make the political system react slowly to changes in real life More dangerous, if a department of self-interest, only worry "before is beautiful, the back is warm," take care of exploiting the rules for your own wing feathers, our country quickly has a rich layer of scum, and poverty is broadly divided to the whole society

In terms of legal documents, supervision is carried out by the Department of Inspection and Handling of Legal Documents under the Ministry of Justice, to review and check legal documents at ministerial and provincial levels, but only to propose to the Minister

of Justice to handle wrong documents In Vietnam, there is still a lack of judicial oversight for legal documents The normative documents issued by the National Assembly, as well as the legal system built by administrative agencies, have never been examined by judicial

authorities The constitutional court is not yet available; the Administrative Court is only competent to handle individual administrative decisions - that is, administrative decisions that apply to one or more specific subjects, in order to solve a specific problem in administrative management

In general, in the recent times, the supervision of documents in our country is now focused However, state administrative agencies play a leading role, even in a monopoly in controlling legal documents The control of the central administration is too large, covering the areas of local activity This administrative control model lacks objectivity and independence - because it is still in the administrative apparatus

In the future when decentralized development, the mechanism for controlling existing normative documents will need to be changed In Vietnam, decentralization has been going on strongly in almost all areas of state management, in daily and hourly A series of institutional and economic reforms all give grassroots authorities the right to decide In the field of investment, investment licensing has been decentralized to provincial and district levels and even piloted for commune models (such as Program 135) Local authorities have much more autonomy in budget revenue and expenditure The state tends to shift some services to the private sector - as notaries; bailiff This trend is so strong that Vietnam Development Report

2010 called Vietnam "a decentralized and empowered State" In order to be compatible with this shift, the mechanism for monitoring legal documents also needs to gradually shift to a judicial path - to reduce the level of administrative control of the level system, to ensure the right

to take initiative in local creation - the real thing relevance to the decentralization process The debate rises over the years about the model of a Constitutional Court - although there is no optimistic end - but more or less marks the study and establishment of a new model of legal document control, ensuring objectivity, strictness and respect for autonomy: judicial institutions

ĐƢA CUỘC SỐNG VÀO PHÁP LUẬT VÀ ĐƢA PHÁP LUẬT VÀO CUỘC SỐNG – CÂU CHUYỆN VỀ SOẠN THẢO PHÁP LUẬT VÀ

THI HÀNH PHÁP LUẬT Ở VIỆT NAM

PGS TS Nguyễn Hoàng Anh

Khoa Luật ĐHQGHN

Abstract:

There are many reasons for the abundance of legal normative documents in Vietnam

As a country influenced by the Civil Law, the written laws are prefered Going from a centrally planned economy, bureaucracy government intervenes in almost all areas of social life, and the consequence is the inflation of legal documents Precedents have been officially recognized since 2015, which once again affirmed the nearly dominant position of the written law source Although in recent years the law-making process has been standardized and enhanced the policy analysis and RIA (Regulatory Impact Assesement) in accordance with the model of the developed countries, but their application in the cultural, economic institution in Vietnam is still difficult The consequences are very difficult to ―bring life into law The law is abundant but their contents sometimes are not applicable for life; not encouraging development Consequently, it is difficult to "bring law into life"

In order to have good law enforcement not only need good legal documents

Promoting accountability and decentralization in the administrative system; strengthening the supervision of the courts in enforcing laws are the necessary solutions for better law enforcement The following article discuss the difficulties and prospects in drafting and enforcing laws in Vietnam

Có nhiều nguyên nhân lý giải sự dồi dào của các văn bản quy phạm pháp luật Việt Nam: là một quốc gia chịu ảnh hưởng ít nhiều của truyền thống Civil Law, các đạo luật thành văn được ưa chuộng Vốn là thể chế xã hội chủ nghĩa, Việt Nam từng có triết lý coi luật thành văn là nguồn hầu như duy nhất để đảm bảo tính chủ quyền nhân dân Ngay cả sau Đổi mới – khi bối cảnh kinh tế, xã hội và những quan niệm về pháp luật đã dần thay đổi, thì sự ―lạm phát‖ các văn bản pháp luật vẫn không dừng lại Đối diện với những vấn đề mới đặt ra trong thực tiễn, cơ quan lập pháp và cơ quan hành chính luôn sử dụng những quy tắc để hướng dẫn thi hành Sự hiện diện của nhà nước trong hầu khắp mọi lĩnh vực của đời sống xã hội đã lý giải cho việc lạm phát nguồn văn bản luật Cuối cùng, vai trò của toà án còn thấp, các án lệ mới chính thức được thừa nhận từ năm 2015103, điều này lại khẳng định lần nữa vị thế gần như thống soái của nguồn luật thành văn

Văn bản pháp luật có vai trò quan trọng trong phát triển kinh tế và ổn định xã hội ở Việt Nam Lập pháp những năm gần đây đã có những bước tiến lớn: công cuộc xây dựng pháp luật đã trở thành sự kiện chung của xã hội – điển hình là việc sửa đổi Hiến pháp năm

103 Cho đến nay (2019) có tất cả 26 án lệ đã được xuất bản công khai bởi Toà án nhân dân tối cao ở Việt Nam, tham khảo tại: https://thuvienphapluat.vn/tintuc/vn/an-le/