Background
On 24 November 2010, the National Assembly of Vietnam adopted the Law on Administrative Procedures ("Law") with 265 articles in 18 chapters. The Law became effective as from 1 July 2011 and replaces the Ordinance on the Procedures for the Settlement of Administrative Cases, effective 1 July 1996 and amended on 25 December 1998 and again on 5 April 2006 ("Ordinance").
One key characteristic of administrative procedures is the dialogue mechanism. In the course of resolving an administrative case, the court must facilitate dialogue between the parties as a means to settle their case. This helps to ensure the parties have an equal opportunity to be heard by each other, as well as by the court.
While the Law maintains this emphasis on dialogue, it repeals the Ordinance's compulsory pre-proceeding stage, in which parties were required to undergo an extensive complaint process before instituting administrative legal action. The Law helps simplify administrative procedures and saves considerable time in dispute resolution.
These and other salient provisions of the Law will be discussed below.
Scope of regulation
The Law provides:
- fundamental principles for administrative procedures;
- tasks, powers and responsibilities of agencies and individuals managing administrative procedures;
- rights and obligations of participants; and
- procedures for instituting lawsuits, settling administrative cases, enforcing administrative judgments, and settling complaints and denunciations in administrative procedures.
Lawsuits under jurisdiction of courts
The Ordinance listed 22 separate types of administrative lawsuits under the jurisdiction of courts. This would have required an amendment to the Ordinance each time the list changed. The Law avoids this problem by grouping administrative lawsuits into four categories under the jurisdiction of the courts
Under the Law, the courts have the jurisdiction to settle:
- lawsuits over administrative acts or decisions, except those pertaining to State secrets in the areas of national defense, security and foreign affairs as classified by the Government and those of an internal nature of agencies and organisations;
- lawsuits over lists of voters to elect deputies to the National Assembly or to People's Councils;
- lawsuits over disciplinary decisions on dismissal of civil servants holding the post of a department-level general director or equivalent or lower posts; and
- lawsuits over decisions settling complaints arising from decisions on competition cases.
Jurisdiction of trial panels
The trial panel will examine the legality of administrative decisions, administrative acts, disciplinary decisions on dismissal, decisions settling complaints arising from decisions on competition cases, lawsuits over voter lists, and decisions on settlement of related complaints.
Repeal of pre-proceeding stage
The Law repeals the pre-proceeding stage required under the Ordinance. A citizen no longer has to perform the time-consuming complaint process prior to instituting an administrative lawsuit.
Statute of limitation
Pursuant to the Ordinance, the time limit for initiation of a lawsuit was 30 days. Where the parties were located in a remote area without easy access to transportation, the time limit was increased to 45 days. The statute of limitation was not long enough to permit the parties to prepare documentation and evidence. In comparison, the statute of limitation for a civil case is two years.
The Law increases the statute of limitation for initiation of a lawsuit to one year from the date of receipt of or knowledge about an administrative act or decision or a disciplinary decision on dismissal; and 30 days from the date of receipt of a decision settling a complaint arising from a decision on a competition case.
Assurance of the effect of court judgments and rulings
The Law stipulates that legally effective court judgments and rulings on administrative cases must be executed and respected by all the relevant individuals, agencies and organisations.
Courts, agencies and organisations assigned with the tasks necessary for the execution of court judgments and rulings must strictly implement this provision and will be held responsible before the law for their performance of those tasks.
The Ordinance lacked a term providing for the execution of an administrative judgment, which made it very difficult to carry out administrative judgments. This provision addresses this deficiency.
Spoken and written languages used in administrative proceedings
Vietnamese is the spoken and written language used in administrative proceedings. However, participants may use their native language, in which case, interpreters are required.
Application for provisional urgent measures without having to pay a security
In emergencies, when it is necessary to immediately protect evidence or to prevent possible serious consequences, a party may file an application to request the court to apply provisional urgent measures. This application may be filed simultaneously with a petition for a lawsuit.
Parties applying for provisional urgent measures are now no longer required to pay a security in administrative actions.
Determination of jurisdiction in case both complaint and lawsuit petition are filed
In cases where a plaintiff files a petition to institute an administrative lawsuit at a competent court and concurrently files a complaint with an agency competent to settle complaints, the plaintiff now has an option to choose the venue in which it prefers to settle the case.
Procuracy no longer has the right to institute administrative lawsuits
The procuracy no longer has the right to institute administrative lawsuits, as was permitted by the Ordinance. However, for protection of minors or persons with diminished civil capacity, the Law permits the procuracy to request the commune administrations in the person's place of residence to appoint guardians to institute administrative lawsuits on their behalf.
Amendment of a number of articles of the Land Law
The Law on the Promulgation of Legal Documents permits any newly-enacted legal document "to simultaneously revise, supersede, cancel or abolish the contents of several legal documents promulgated by the same agency". On this basis, the Law also amends and supplements Article 136.2 and Article 138 of the Land Law.
Under these new provisions, parties involved in a dispute over land use rights may initiate a lawsuit under the Law on Administrative Procedures. The procedures for settlement of lawsuits arising from land-related administrative acts or decisions now complies with the provisions of the Law on Administrative Procedures.
Conclusion
The Law on Administrative Procedures enhances the legislative framework on administrative procedures in Vietnam and lays down precedents for future improvements. Basic changes, such as a specific provision on execution of administrative decisions, will empower parties to rely on this Law.
For inquiries related to this Legal Update, please contact John Marsden, Orsolya Szotyory-Grove or your usual contacts with our firm.
