Joint Circular No. 06/2014/TTLT-BTP-TTCP-BQP guiding complaints and the resolution of complaints regarding state compensation in administrative management activities and civil enforcement proceedings.

JOINT CIRCULAR

Guidelines for complaints and resolution of complaints regarding state compensation

in administrative management activities and civil enforcement proceedings

____________________

Based on the Law on State Compensation Liability dated June 18, 2009;

Pursuant to the Law on Petition dated November 11, 2011;

Pursuant to Decree No. 16/2010/NĐ-CP dated March 3, 2010 of the Government detailing and guiding the implementation of certain provisions of the Law on State Compensation Liability;

Pursuant to Decree No. 75/2012/NĐ-CP dated October 3, 2012, of the Government detailing certain provisions of the Law on Complaints;

The Minister of Justice, the General Inspector of the Government, and the Minister of National Defense issue this Joint Circular to guide complaints and resolution of complaints regarding state compensation in administrative management activities and civil enforcement proceedings.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Joint Circular guides complaints and resolution of complaints against administrative decisions, administrative acts of agencies responsible for compensation, persons with authority in resolving compensation, and reviewing liability for repayment in administrative management activities and civil enforcement proceedings.

Article 2. Applicability

This Joint Circular shall apply to:

1. The complainant;

2. The person suffering loss, individuals, and organizations related to the complaint;

3. State agency managing state compensation work;

4. Agency responsible for compensation;

5. Person with authority to resolve complaints and relevant individuals, organizations, and agencies involved in resolving complaints concerning compensation, review of liability for repayment in administrative management activities and civil enforcement proceedings.

Article 3. Principles for determining jurisdiction to resolve complaints

1. The head of the agency responsible for compensation shall be responsible for resolving initial complaints against administrative decisions, administrative acts issued by themselves and their directly managed officials in resolving compensation, and reviewing liability for repayment in administrative management activities and civil enforcement proceedings.

2. The head of the immediately superior agency of the agency specified in Clause 1 of this Article shall have the authority to resolve second-level complaints against the initial decision of the subordinate agency responsible for compensation.

Chapter II

COMPLAINTS REGARDING RESOLUTION

COMPENSATION, REVIEW OF LIABILITY FOR REPAYMENT

Article 4. Complaint Procedure

1. When there is evidence that administrative decisions, administrative acts in resolving compensation, and reviewing liability for repayment in administrative management activities and civil enforcement proceedings are contrary to the law and directly infringe upon the complainant's lawful rights and interests, the complainant shall file an initial complaint with the person who issued the administrative decision or the agency where the administrative act was committed, or initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

If the complainant disagrees with the initial resolution decision or if the complaint is not resolved within the prescribed time limit, the complainant has the right to file a second-level complaint with the immediate superior head of the person with authority to resolve the initial complaint or initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

If the complainant disagrees with the second-level resolution decision or if the complaint is not resolved within the prescribed time limit, the complainant has the right to initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

2. For administrative decisions, administrative acts in resolving compensation, and reviewing liability for repayment in administrative management activities and civil enforcement proceedings made by the Minister or the head of a ministerial-level agency (hereinafter referred to as the Minister), the complainant shall file a complaint with the Minister or initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

If the complainant disagrees with the Minister's resolution decision or if the complaint is not resolved within the prescribed time limit, the complainant has the right to initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

3. For administrative decisions, administrative acts in resolving compensation, and reviewing liability for repayment in administrative management activities and civil enforcement proceedings made by the Chairman of the People's Committee of a province or centrally-administered city (hereinafter referred to as provincial level), the complainant shall file an initial complaint with the Chairman of the People's Committee at the provincial level or initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

If the complainant disagrees with the initial resolution decision of the Chairman of the People's Committee at the provincial level or if the complaint is not resolved within the prescribed time limit, the complainant has the right to file a second-level complaint with the Minister managing the sector or field or initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

If the complainant disagrees with the second-level resolution decision of the Minister or if the complaint is not resolved within the prescribed time limit, the complainant has the right to initiate an administrative lawsuit at the court according to the provisions of the Administrative Procedure Code.

Article 5. Form of Complaint

The form of complaint regarding the settlement of compensation and the examination of liability for repayment shall be implemented in accordance with the provisions of Article 8 of the Law on Complaints 2011.

Article 6. Time Limit for Complaint

The time limit for complaints regarding the settlement of compensation and the examination of liability for repayment in administrative management activities and civil enforcement proceedings is ninety days, counted from the date of receipt of the administrative decision or knowledge of the administrative decision or administrative act.

In cases where the complainant is unable to exercise their right to file a complaint within the prescribed time limit due to illness, natural disasters, enemy attacks, official duties, studying far away, or other objective obstacles that have valid documents as evidence, the period during which such obstacles exist shall not be included in the time limit for filing a complaint.

Article 7. Withdrawal of Complaint

The complainant may withdraw the complaint at any point during the complaint process and its resolution; the withdrawal of the complaint must be carried out through a written request signed or marked with a fingerprint by the complainant; the request to withdraw the complaint must be sent to the authority responsible for resolving the complaint.

When the authority responsible for resolving the complaint receives the request to withdraw the complaint, it shall suspend the resolution of the complaint by issuing a Decision to Suspend Resolution of Complaint and send the Decision to Suspend Resolution of Complaint to the complainant.

Article 8. Complaint Regarding the Acceptance of Compensation Claim Files

1. A complaint regarding the acceptance of compensation claim files shall be made when there is one of the following grounds:

a) The compensation claim file is complete and valid according to the law, but the agency responsible for compensation does not accept it and does not issue a notification to the complainant or guide the complainant to submit the application to the competent authority for resolution;

b) The compensation claim file is incomplete, but after five working days from the date of receipt of the file, the agency responsible for compensation does not guide the supplementation of the compensation claim file.

            2. In cases where a complaint regarding the acceptance of compensation claim files is accepted and resolved, the time taken to file and resolve the complaint shall not be included in the time limit for requesting compensation as stipulated in Article 5 of the Law on State Liability for Compensation (hereinafter referred to as the Law on State Liability for Compensation).

Article 9. Complaint Regarding the Appointment of a Representative to Carry Out the Settlement of Compensation

A complaint regarding the appointment of a representative to carry out the settlement of compensation shall be made when there is one of the following grounds:

1. The agency responsible for compensation does not appoint a representative to carry out the settlement of compensation as provided for in Clause 1, Article 7 of Decree No. 16/2010/ND-CP dated March 3, 2010 of the Government detailing and guiding the implementation of certain provisions of the Law on State Liability for Compensation (hereinafter referred to as Decree No. 16/2010/ND-CP);

2. The person appointed by the head of the agency responsible for compensation to act as a representative to carry out the settlement of compensation does not meet the conditions as provided for in Clause 2, Article 7 of Decree No. 16/2010/ND-CP.

 Article 10. Complaint Regarding Payment of Costs for Valuation and Re-examination

If there is a basis as provided for in Clause 3, Article 18 of the Law on State Liability for Compensation, the complainant has the right to complain about the agency responsible for compensation to pay the costs for valuation and re-examination.

Article 11. Complaints regarding the implementation of procedures for transferring decisions on compensation to persons suffering losses

Complaints regarding the implementation of procedures for transferring decisions on compensation to persons suffering losses shall be made when there is one of the following grounds:

1. The person transferring the decision on compensation to the person suffering losses does not belong to one of those persons prescribed in Clause 1 of Article 10 of Decree No. 16/2010/NĐ-CP;

2. The transfer of the decision on compensation is not carried out in accordance with the provisions of Clauses 2, 3, and 4 of Article 10 of Decree No. 16/2010/NĐ-CP.

Article 12. Complaints regarding the implementation of procedures for returning property

Complaints regarding the implementation of procedures for returning property shall be made when there is one of the following grounds:

1. After five working days from the date the decision on confiscation, temporary detention, seizure, or confiscation is revoked, the agency that issued such decisions does not send a written notice to the person suffering losses about the return of the property in accordance with Clause 1 of Article 11 of Decree No. 16/2010/NĐ-CP;

2. The property returned to the person suffering losses is incorrect in quantity, volume, and other characteristics according to the decision of the competent state agency.

Article 13. Complaints regarding the payment of compensation money

Complaints regarding the payment of compensation money shall be made when there is one of the following grounds:

1. After five working days from the date of receiving the compensation funds provided by the financial agency, the agency responsible for compensation does not carry out the payment of compensation money to the person suffering losses or the relatives of the person suffering losses;

2. The agency responsible for compensation does not implement the agreement with the person suffering losses regarding the form and method of payment.

Article 14. Complaints regarding the examination of liability for repayment

Complaints regarding the examination of liability for repayment shall be made when there is one of the following grounds:

1. The members of the Council examining liability for repayment do not comply with the composition prescribed in Clause 2 of Article 13 of Decree No. 16/2010/NĐ-CP;

2. The working methods of the Council examining liability for repayment are not implemented in accordance with Article 15 of Decree No. 16/2010/NĐ-CP;

3. The Decision on Repayment determines the amount of repayment and the method of repayment not in accordance with the extent of loss, degree of fault, and economic conditions of the public servant responsible for repayment, or the determination of the amount of repayment is not in accordance with the provisions of Article 16 of Decree No. 16/2010/NĐ-CP;

4. The public servant responsible for repayment does not receive the Decision on Repayment.

Chapter III

SETTLEMENT OF COMPLAINTS AND ENFORCEMENT OF LEGALLY BINDING DECISIONS ON COMPLAINT SETTLEMENT

Article 15. Competence to settle complaints regarding the resolution of compensation, examination of liability for repayment in administrative management activities

1. Competence of the Chairman of the People's Committee at the commune level and the Heads of agencies under the People's Committee at the district level

The Chairman of the People's Committee (hereinafter referred to as the People's Committee) at the commune level; the Head of agencies under the People's Committee at the district level has the competence to settle initial complaints against their own administrative decisions, administrative acts in the process of compensation resolution, examination of liability for repayment in administrative management activities.

2. Competence of the Chairman of the People's Committee at the district level

a) Settle initial complaints against their own administrative decisions, administrative acts in the process of compensation resolution, examination of liability for repayment in administrative management activities;

b) Settle second-level complaints against administrative decisions, administrative acts of the Chairman of the People's Committee at the commune level, the Heads of agencies under the People's Committee at the district level who have settled initially but still have complaints or initial complaints have exceeded the deadline but have not been resolved in the process of compensation resolution, examination of liability for repayment in administrative management activities.

3. Competence of the Heads of agencies under the Department and equivalent levels

The Heads of agencies under the Department and equivalent levels have the competence to settle initial complaints against their own administrative decisions, administrative acts, and those of directly managed civil servants in the process of compensation resolution, examination of liability for repayment in administrative management activities.

4. Competence of the Director of the Department and equivalent levels

a) Settle initial complaints against their own administrative decisions, administrative acts, and those of directly managed civil servants in the process of compensation resolution, examination of liability for repayment in administrative management activities;

b) Settle second-level complaints against administrative decisions, administrative acts of the Heads of agencies under the Department and equivalent levels who have settled initially but still have complaints or initial complaints have exceeded the deadline but have not been resolved in the process of compensation resolution, examination of liability for repayment in administrative management activities.

5. Competence of the Chairman of the People's Committee at the provincial level

a) Settle initial complaints against their own administrative decisions, administrative acts in the process of compensation resolution, examination of liability for repayment in administrative management activities;

b) Settle second-level complaints against administrative decisions, administrative acts of the Chairman of the People's Committee at the district level, the Directors of Departments and equivalent levels who have settled initially but still have complaints or initial complaints have exceeded the deadline but have not been resolved in the process of compensation resolution, examination of liability for repayment in administrative management activities.

6. Competence of the Heads of agencies under the Ministry, equivalent to ministries

Settle initial complaints against their own administrative decisions, administrative acts, and those of directly managed civil servants in the process of compensation resolution, examination of liability for repayment in administrative management activities.

7. Competence of the Minister, Heads of agencies equivalent to ministries

a) Settle initial complaints against their own administrative decisions, administrative acts, and those of directly managed civil servants in the process of compensation resolution, examination of liability for repayment in administrative management activities;

b) Settle second-level complaints against:

Administrative decisions, administrative acts of the Chairman of the People's Committee at the provincial level which fall within the scope of management of the ministry or sector that have settled initially but still have complaints or initial complaints have exceeded the deadline but have not been resolved in the process of compensation resolution, examination of liability for repayment in administrative management activities;

An administrative decision, administrative act of the Head of an agency under the Ministry or at the level of a ministry that has been resolved for the first time but still has complaints or the initial complaint has exceeded the deadline but has not yet been resolved in the handling of compensation, examination of liability for repayment in administrative management activities.

Article 16. Competence to resolve complaints regarding the handling of compensation, examination of liability for repayment within agencies organized by sector or field

1. The Head of the agency responsible for compensation shall have the authority to resolve the initial complaint against administrative decisions, administrative acts of their own, and those of civil servants directly managed by them in the handling of compensation, examination of liability for repayment in administrative management activities and enforcement of civil judgments.

2. The Head of the immediately superior agency of the agency resolving the initial complaint as stipulated in Clause 1 of this Article shall have the authority to resolve the second-level complaint against administrative decisions, administrative acts of subordinate agencies that have been resolved initially but still have complaints or the initial complaint has exceeded the deadline but has not yet been resolved in the handling of compensation, examination of liability for repayment.

Article 17. Time limit for resolving complaints

1. The time limit for resolving the initial complaint regarding the handling of compensation, examination of liability for repayment shall be implemented according to the provisions of Article 28 of the Law on Complaints in 2011.

2. The time limit for resolving the second-level complaint regarding the handling of compensation, examination of liability for repayment shall be implemented according to the provisions of Article 37 of the Law on Complaints in 2011.

3. In cases where complaints about administrative decisions, administrative acts in the handling of compensation, examination of liability for repayment are accepted for resolution, the time spent on lodging and resolving complaints shall not be counted towards the time limit for handling compensation, examination of liability for repayment.

Article 18. Procedure for handling complaints

The procedure and process for resolving complaints include: accepting the complaint for resolution, verifying the content of the complaint, organizing dialogue, issuing a decision to resolve the complaint, sending the decision to resolve the complaint, the file on resolving the complaint, and applying urgent measures as provided for by the law on complaints.

Article 19. Second-level complaint or initiating an administrative lawsuit

1. Within thirty days from the date the deadline for resolving the initial complaint as stipulated in Clause 1 of Article 17 of this Joint Circular expires and the initial complaint has not been resolved, or from the date of receipt of the decision to resolve the initial complaint if the complainant disagrees with it, the complainant has the right to lodge a second-level complaint with the competent authority to resolve the second-level complaint; for remote areas with difficult access, the deadline may be extended but shall not exceed forty-five days.

In the case of a second-level complaint, the complainant must submit a petition along with the decision to resolve the initial complaint and related documents to the competent authority to resolve the second-level complaint.

2. If the initial complaint has not been resolved within the time limit for resolving complaints as stipulated in Clause 1 of Article 17 of this Joint Circular, or if the complainant disagrees with the decision to resolve the initial complaint, the complainant has the right to initiate an administrative lawsuit at the court in accordance with the Administrative Procedure Code.

Article 20. Re-examination of administrative decisions and actions in handling compensation and reviewing liability for repayment

1. After accepting a complaint, the authority with jurisdiction to handle the initial complaint must re-examine its own administrative decision and action, or those of persons under its direct management.

2. The content of the re-examination includes:

a) Legal basis for issuing administrative decisions and performing administrative actions;

b) Authority to issue administrative decisions and perform administrative actions;

c) Content of administrative decisions and performance of administrative actions;

d) Procedure, formalities, format, and technical presentation of administrative decisions.

đ) Other contents (if any).

3. After re-examination, if it is found that the complaint is valid, the authority with jurisdiction to handle the initial complaint shall immediately issue a decision to resolve the complaint.

4. In cases where there is no basis to conclude on the content of the complaint, the authority with jurisdiction to handle the initial complaint may itself conduct verification of the complaint's content or delegate this task to the state inspection agency at the same level or to organizations, entities, or individuals responsible for verifying the complaint and proposing solutions.

Article 21. Establishment of Advisory Board

1. For complex cases, the authority with jurisdiction to handle the second-level complaint may decide to establish an Advisory Board to resolve complaints if deemed necessary.

2. The composition of the Advisory Board to resolve complaints includes:

a) The Chairman of the Board is the leader of the complaint resolution agency;

b) The head of the agency responsible for resolving the initial complaint;

c) The state management agency regarding compensation at the same level as the complaint resolution agency;

d) A representative responsible for compensation;

đ) A representative from the trade union organization responsible for compensation;

e) A representative from related agencies (if any);

g) Other persons if considered necessary.

3. Tasks and powers of the Advisory Board to resolve complaints

a) Studying the case file of the complaint;

b) Reviewing and evaluating the initial complaint resolution;

c) Advising the head of the complaint resolution agency on the direction of complaint resolution.

4. Working methods of the Advisory Board to resolve complaints

a) The Board will convene only when at least two-thirds of the total number of Board members are present;

b) During discussion and decision-making, Board members must be objective, democratic, and comply with the law;

c) The minutes of the meeting must be reviewed and approved by the Board and signed by the Chairman;

d) If necessary, the Board may invite the complainant to attend the meeting;

đ) The Board will dissolve itself upon completion of its tasks.

Article 22. Initiating Administrative Litigation

Upon expiration of the time limit for handling complaints as stipulated in Clause 2, Article 17 of this Joint Circular, if the complaint is not resolved or the complainant disagrees with the second-level complaint resolution decision, the complainant has the right to initiate administrative litigation at the Court in accordance with the provisions of the Administrative Procedure Code.

Article 23. Effectiveness of Complaint Resolution Decisions

1. The first-level complaint resolution decision becomes effective thirty days after issuance, unless the complainant appeals again; for remote areas with difficult access, the period may be extended but not exceed forty-five days.

2. The second-level complaint resolution decision becomes effective thirty days after issuance; for remote areas with difficult access, the period may be extended but not exceed forty-five days.

3. If the complainant disagrees with the complaint resolution decision, they have the right to initiate administrative litigation at the Court in accordance with the provisions of the Administrative Procedure Code.

4. The complaint resolution decision on compensation and review of liability for repayment becomes legally binding and enforceable immediately.

Article 24. Persons responsible for implementing the Decision on handling complaints that have legal effect

1. The head of the agency responsible for compensation in response to complaints.

2. The representative of the agency responsible for compensation.

3. The person suffering damage and the public servant responsible for repayment who have lodged complaints.

4. Agencies, organizations, and persons with related rights and obligations.

Article 25. Enforcement of the decision on handling complaints

1. The head of the agency responsible for compensation, having resolved the complaint, shall direct agencies, organizations, and individuals under their management to organize the enforcement of the decision on handling complaints regarding compensation, responsibility for repayment, which have legal effect; if necessary, request competent authorities to take measures to ensure the enforcement of decisions on handling complaints with legal effect; organize enforcement or take the lead and coordinate with relevant organizations and authorities to implement measures to restore the legitimate rights and interests of the complainant; propose other agencies and organizations to resolve issues related to the enforcement of the decision on handling complaints (if any).

2. When the decision on handling complaints has legal effect, the complainant and persons with related rights and obligations shall be responsible for:

a) Cooperating with the agency responsible for compensation to restore their legitimate rights and interests that were violated by administrative acts contrary to the law;

b) Complying with the administrative decision or administrative act that was complained about, which has been recognized by the competent authority resolving the complaint as being in accordance with the law.

3. Within the scope of their duties and powers, agencies, organizations, and individuals related shall be responsible for complying with administrative decisions of the competent authority to enforce decisions on handling complaints with legal effect; cooperate with competent agencies and organizations in organizing the enforcement of decisions on handling complaints with legal effect when requested.

Chapter IV

IMPLEMENTING PROVISIONS

Article 26. Effective date

This Circular takes effect from March 31, 2014.

Article 27. Responsibilities for enforcement and implementation

1. The Ministry of Justice, the Ministry of National Defense, the Government Inspectorate, and agencies responsible for compensation, state management agencies concerning compensation in administrative management, civil enforcement, and related agencies and organizations shall be responsible for enforcing this Joint Circular.

2. During the implementation process, if there are difficulties or obstacles, individuals and organizations are advised to report to the Ministry of Justice for coordination with the Ministry of National Defense and the Government Inspectorate to study and resolve them./.