Ordinance No. 10/1998/PL-UBTVQH10 Amending and Supplementing Certain Articles of the Administrative Procedure Ordinance

ORDINANCE

Amending and supplementing certain Articles

of the Administrative Procedure Ordinance

 

Based on the Constitution of the Socialist Republic of Vietnam in 1992;

Pursuant to the Law on Complaints and Reports;

Pursuant to the Resolution of the Fourth Session of the Tenth National Assembly onthe Legislative Program for the Ten-Year Term of the Tenth National Assembly;

This Ordinance amends and supplements certain Articles of the AdministrativeProcedure Ordinance,

 

Article 1

Amending and supplementing certain Articles of the Administrative ProcedureOrdinance as follows:

1. Clause 2 shall be amended and supplemented as follows:

"Article 2

1. Individuals, state agencies, organizations have the right to initiateadministrative cases against administrative decisions, administrative acts in thefollowing circumstances:

a) Have lodged a complaint with the competent authority for initialcomplaint resolution according to the provisions of Articles from Article 19 toArticle 25 of the Complaints and Petitions Law, but the time limit for resolutionas stipulated in Article 36 of the Complaints and Petitions Law has expiredwithout the complaint being resolved, and also without continuing to lodge acomplaint to the next competent authority for complaint resolution;

b) Have lodged a complaint with the competent authority for initialcomplaint resolution according to the provisions of Articles from Article 19 toArticle 25 of the Complaints and Petitions Law, but disagree with the decisionon complaint resolution and also without continuing to lodge a complaint to thenext competent authority for complaint resolution.

2. Civil servants holding positions from Deputy Director-General and belowaccording to the laws on civil servants have the right to initiate administrativecases regarding disciplinary decisions compelling them to leave their posts, ifthey have lodged a complaint with the competent authority for initial complaintresolution, but disagree with the decision on complaint resolution and alsowithout continuing to lodge a complaint to the next competent authority forcomplaint resolution."

2. Article 3 shall be amended and supplemented as follows:

"Article 3

The plaintiff in an administrative case may simultaneously request compensationfor damages; in this case, the provisions of civil law and civil procedure lawshall also be applied to resolve the request for compensation for damages.

During the process of resolving the administrative case, the Court createsconditions for the parties to negotiate with each other regarding the resolutionof the case.

The plaintiff has the right to withdraw part or all of the content of thecomplaint.

The defendant has the right to amend or revoke the administrative decision,disciplinary decision compelling them to leave their post that is being challenged."

4. Clause 2 of Article 5 is amended and supplemented as follows:

"Article 4

In this Ordinance, the following terms shall be understood as follows:

1. "Administrative decision" is a decision in writing by an administrativeagency of the State or by a person authorized within such agency, applied once toone or several specific subjects concerning a specific issue in administrative management activities.

2. "Administrative act" is the act of an administrative agency of theState or of a person authorized within such agency when performing tasks andpublic duties as prescribed by law.

3. "Disciplinary decision compelling to leave the post" is a decision inwriting by the head of an agency or organization to apply the form of disciplinariyal punishment compelling to leave the post against civil servants holdingpositions from Deputy Director-General and below under their management accordingto the laws on civil servants.

4. "Party" includes the plaintiff, the defendant, and those with relatedrights and obligations.

5. "Plaintiff" is an individual, state agency, organization who believes thattheir legitimate rights and interests have been violated by an administrative decision, administrative act, or a civil servant who believes that theirlegitimate rights and interests have been violated by a disciplinary decisioncompelling them to leave their post, and therefore initiated an administrativecase at the competent court.

6. "Defendant" is an individual, state agency, organization whoseadministrative decision, administrative act, or disciplinary decision compellingthem to leave the post is being challenged.

7. "Those with related rights and obligations" are individuals, stateagencies, organizations, due to the initiation of an administrative case by theplaintiff against the defendant, the resolution of which affects their rightsand obligations."

4. Article 5 is amended and supplemented as follows:

"Article 5

The plaintiff must file a complaint in accordance with the provisions of Article30 of this Ordinance; has the obligation to provide copies of the administrativedecision or disciplinary decision compelling to leave the post, copies of theinitial complaint resolution decision (if any), and provide other evidence toprotect their legitimate rights and interests.

The defendant has the obligation to provide the court with copies of normativelegal documents as well as copies of other documents based on which theadministrative decision, disciplinary decision compelling to leave the post, oradministrative act was made.

Those with related rights and obligations have the right to participate inproceedings with either the plaintiff or the defendant, or to participateindependently in proceedings, and have the obligation to provide evidence toprotect their legitimate rights and interests.

When necessary, the Court may verify, collect evidence, or request the parties,individuals, state agencies, relevant organizations to provide documents andevidence to ensure the accurate resolution of the administrative case. Thoserequested must provide fully and within the specified time frame as required bythe Court; in cases where they cannot provide, they must respond in writing andspecify the reasons."

5. Article 11 is amended and supplemented as follows:

"Article 11

Courts with jurisdiction to resolve the following administrative cases:

1. Challenging administrative penalties;

2. Challenging administrative decisions, administrative acts in the applicationof measures to compel the demolition of houses, buildings, or other permanentstructures;

3. Challenging administrative decisions, administrative acts in theapplication or enforcement of administrative measures in the forms of communityservice, placement in a juvenile education center, placement in an educationalfacility, placement in a medical facility, or administrative supervision;

4. Challenging disciplinary decisions compelling civil servants holdingpositions from Deputy Director-General and below to leave their posts;

5. Challenging administrative decisions, administrative acts in landmanagement;

6. Challenging administrative decisions, administrative acts in the issuanceor revocation of permits for basic construction, production, and business;

7. Challenging administrative decisions, administrative acts in theexpropriation, purchase, or confiscation of property;

8. Challenging administrative decisions, administrative acts in taxcollection or recovery.

9. Administrative disputes concerning administrative decisions and administrative actsin relation to fee and charge collection;

10. Other disputes as prescribed by law.”

6. Article 12 is amended and supplemented as follows:

"Article 12

1. The People's Court at the district level (commonly referred to as the district court)shall handle first-instance proceedings for the following cases:

a) Administrative disputes concerning administrative decisions and administrative acts ofstate agencies at the district level and below within the same territory and of officialsand civil servants of those state agencies;

b) Administrative disputes concerning disciplinary decisions terminating employment ofthe heads of state agencies and organizations at the district level and below withinthe same territory against officials and civil servants under their management.

2. The People's Court at the provincial level (commonly referred to as the provincialcourt) shall handle first-instance proceedings for the following cases:

a) Administrative disputes concerning administrative decisions and administrative actsof Ministries, ministerial-level agencies, government agencies, the Office of thePresident, the Office of the National Assembly, the Supreme People's Court, theSupreme People's Procuracy, and administrative decisions and administrative actsof the heads of these agencies if the plaintiff resides, works, or has an office withinthe same territory;

b) Administrative disputes concerning administrative decisions and administrative actsof functional agencies under one of the state agencies specified in point a, Clause 2,Article 16 and administrative decisions and administrative acts of officials andcivil servants of these functional agencies if the plaintiff resides, works, or has anoffice within the same territory;

c) Administrative disputes concerning administrative decisions and administrative actsof state agencies at the provincial level within the same territory and of officials andcivil servants of those state agencies;

d) Administrative disputes concerning disciplinary decisions terminating employment ofthe heads of state agencies and organizations against officials and civil servantsunder their management, except for the disputes specified in point b, Clause 1,Article 16;

đ) In necessary cases, the provincial court may take up and handle cases within thejurisdiction of the district court concerning administrative disputes overadministrative decisions and administrative acts of the People's Committee, Chairmanof the People's Committee at the district level related to multiple subjects, complexcases, or in cases where all judges of the district court fall under circumstancesrequiring refusal to initiate litigation or replacement.

3. The Supreme People's Court shall handle first-instance and final proceedings foradministrative disputes within the jurisdiction of the provincial court that theSupreme People's Court takes up and handles concerning administrative disputesover administrative decisions and administrative acts of state agencies specified inpoint a, Clause 2, Article 16 and administrative decisions and administrative actsof the heads of these agencies related to multiple provinces, complex cases, or incases where it is difficult to determine the jurisdiction of which provincial court;administrative disputes over administrative decisions and administrative acts ofthe People's Committee, Chairman of the People's Committee at the provincial levelrelated to multiple subjects, complex cases, or in cases where all judges of theprovincial court fall under circumstances requiring refusal to initiate litigation orreplacement.”

7. Article 13 is amended and supplemented as follows:

"Article 13

1. In cases where an administrative decision or administrative act is not resolved orwhere an administrative decision or administrative act, a disciplinary decisionterminating employment of officials and civil servants has been resolved for thefirst time but the complainant disagrees, they have the right to appeal to theauthority with the next level of complaint resolution or to file an administrativecase with the competent court. In cases where there is both a complaint to theauthority with the next level of complaint resolution and a lawsuit filed with thecompetent court, the jurisdiction shall be distinguished as follows:

a) If only one person files an administrative case with the competent court and alsocomplains to the authority with the next level of complaint resolution, the resolutionshall be within the jurisdiction of the court. The agency that has accepted thecomplaint resolution must transfer the entire complaint resolution file to thecompetent court;

b) If there are many people, some filing an administrative case with the competentcourt and others complaining to the authority with the next level of complaintresolution, the resolution shall be within the jurisdiction of the authority with thenext level of complaint resolution. The court that has accepted the administrativecase must transfer the case file to the authority with the next level of complaintresolution immediately upon discovering that the resolution of the case does notfall within its jurisdiction.

2. The court that has accepted an administrative case must transfer the case file to thecompetent court immediately upon discovering that the resolution of the case doesnot fall within its jurisdiction. Disputes regarding the jurisdiction to resolveadministrative cases among courts shall be resolved by the higher court directly incharge.

8. Article 16 is amended and supplemented as follows:

"Article 16

1. Judges and Associate Judges must refuse to initiate litigation or be replaced if:

a) They are parties, representatives, or defenders of the interests of parties,relatives of parties, or witnesses in the case;

b) They participated in making the administrative decision or were involved in theadministrative act being appealed;

c) They participated in making the initial decision on resolving the complaintconcerning the administrative decision or administrative act;

d) They participated in making the disciplinary decision terminating employment ofofficials and civil servants or participated in making the initial decision onresolving the complaint concerning the disciplinary decision terminatingemployment of officials and civil servants;

đ) They participated in the trial of the same case as a Judge or Associate Judge,except members of the Appellate Board, the Supreme Court Panel, the AppellateBoard of the Provincial Court, who can participate in the retrial of the same caseunder cassation and revision procedures;

e) They participated in the litigation of the same case as a Prosecutor, Clerk ofCourt, expert, or interpreter;

g) In a panel of judges where the Judge or Associate Judge are relatives of eachother;

h) A relative has participated in the litigation of the same case at another level oftrial;

i) There is evidence indicating that they may not be impartial while performingtheir duties.

2. The Prosecutor and Court Clerk must refuse to participate in the proceedings or be replaced if:

a) They have participated in the proceedings of the same case at another level of adjudication;

b) There are grounds specified in points a, b, c, d, h, and i of Clause 1 of this Article.

9. Article 20 shall be amended and supplemented as follows:

"Article 20

1. During the process of resolving the case, the plaintiff has the right to withdraw part or all of the content of the complaint; the defendant has the right to amend or revoke an administrative decision, disciplinary decision terminating employment of civil servants, correct the administrative act being challenged, or refute the claims of the plaintiff or propose related claims; a person with related rights and obligations may make independent claims or join the proceedings with another party.

2. The parties have the right:

a) To present evidence; to read, copy, and view evidence provided by other parties;

b) To request the court to apply interim measures;

c) To attend the trial session;

d) To request the replacement of the Judge, Associate Judge, Prosecutor, Court Clerk, expert, or interpreter if there are reasons stipulated in Articles 16 and 27 of this Ordinance;

đ) To agree among themselves on the resolution of the administrative case, provided that such agreement does not contravene the law;

e) To debate at the trial session;

g) To appeal the judgment or decision of the court;

h) To request the competent authority to lodge a protest against the judgment or decision of the court that has become legally binding according to the cassation or revision procedure.

3. The parties have the obligation:

a) To provide complete and timely relevant materials and evidence as requested by the court;

b) To appear before the court upon summons;

c) To strictly comply with the rules of the trial session."

10. Article 21 is amended and supplemented as follows:

"Article 21

1. A party who is eighteen years old or older has the right to exercise their own rights and obligations in administrative proceedings.

2. A party who is a minor, or who has physical or mental disabilities, shall exercise their rights and obligations through a representative; if there is no representative for them, then the court will appoint a relative or request an organization to designate a member to represent them."

11. Article 27 is amended and supplemented as follows:

"Article 27

The expert and interpreter must refuse to participate in the proceedings or be replaced if there are grounds specified in points a, b, c, d, h, and i of Clause 1 of Article 16 of this Ordinance. The replacement of the expert or interpreter before the trial session is decided by the Chief Justice of the court; during the trial session, it is decided by the Bench after hearing the opinion of the party requesting the change."

12. Article 30 is amended and supplemented as follows:

"Article 30

1. The plaintiff challenging an administrative decision or act must file a petition with the competent court to resolve the administrative case within thirty days from the expiration of the initial complaint resolution period under the Law on Complaints and Petitions, if the complaint is not resolved, or from the date of receiving the first complaint resolution decision and disagreeing with it. Civil servants challenging a disciplinary decision terminating employment must file a petition with the competent court to resolve the administrative case within thirty days from the date of receiving the first complaint resolution decision and disagreeing with it.

For remote areas, the time limit for filing a lawsuit mentioned above is forty-five days.

2. In cases where the plaintiff cannot file a lawsuit within the time limit specified in Clause 1 of this Article due to illness, natural disasters, enemy attacks, business trips, study abroad, or other objective obstacles, the time of such obstacles shall not be counted towards the statute of limitations for filing a lawsuit.

3. The complaint must include the following main contents:

a) Date of making the complaint;

b) The court requested to resolve the administrative case;

c) Name and address of the plaintiff and defendant;

d) Content of the administrative decision or disciplinary decision terminating employment of civil servants, or a summary of the administrative act;

đ) Content of the first complaint resolution decision (if any);

e) Assurance of not lodging further complaints to the next competent authority;

g) Requests for the court to resolve.

4. The complaint must be signed by the plaintiff; if they are a minor, or have physical or mental disabilities, it must be signed by their representative. Accompanying the complaint must be documents proving the plaintiff's claims."

13. Article 31 is amended and supplemented as follows:

"Article 31

The court returns the complaint in the following cases:

1. The plaintiff does not have the right to sue;

2. The statute of limitations for filing a lawsuit has expired without justifiable reasons;

3. The initial complaint resolution period specified in Article 36 of the Law on Complaints and Petitions has not yet expired and there is no first complaint resolution decision;

4. The first complaint resolution period specified in Article 31 of the Law on Complaints and Petitions has expired without lodging a complaint;

5. There is no first complaint resolution decision regarding the disciplinary decision terminating employment;

6. There is a subsequent complaint resolution decision by the competent authority;

7. The matter has been resolved by a judgment or decision that has become legally binding of the court;

8. The matter being sued does not fall within the jurisdiction of the court."

14. Article 32 is amended and supplemented as follows:

"Article 32

1. If the court finds that the administrative case falls within its jurisdiction, it shall notify the plaintiff to pay the advance litigation fee. Within seven days from the date of receipt of the notification, the plaintiff must pay the advance litigation fee, except in cases where payment of the advance litigation fee is exempted.

2. The court accepts the case on the day the plaintiff presents the receipt of the advance litigation fee payment. In cases where the plaintiff is exempted from paying the advance litigation fee, the court accepts the case on the day it receives the complaint."

15. Article 41 is amended and supplemented as follows:

"Article 41

1. The court decides to suspend the resolution of the case in the following situations:

a) The party is an individual who has died and their rights and obligations are not inherited; the agency or organization has been dissolved and there is no individual, agency, or organization to inherit the rights and obligations in the proceedings;

b) The plaintiff withdraws the complaint; the prosecution withdraws the indictment decision in the absence of a plaintiff;

c) The plaintiff has been legally summoned for the second time but still fails to appear without a legitimate reason;

d) The statute of limitations for filing a lawsuit has expired before the court accepts the complaint;

đ) The matter has already been resolved by a judgment or decision that has taken legal effect from the court;

e) There is a decision on the appeal resolution made by the authority responsible for handling appeals;

g) The matter does not fall within the jurisdiction of the court.

2. A decision to suspend the proceedings of a case may be appealed or protested, except in the cases provided for in point b, Clause 1, Article of this Law.

16. Article 45 shall be amended and supplemented as follows:

"Article 45

The bench suspends the trial in the following cases:

1. The prosecutor is absent or there is no written opinion of the prosecution when the prosecution must participate in the trial or provide a written opinion;

2. The plaintiff, defendant, or interested party has a legitimate reason for their first absence at the initial trial, or their representative is absent with a legitimate reason;

3. Members of the bench, the prosecutor, the clerk of the session, the expert witness, or the interpreter are replaced without immediate substitutes;

4. It is necessary to verify and collect additional evidence and materials.

17. Clause 1 of Article 58 shall be amended and supplemented as follows:

"Article 58

1. Before opening the trial or during the appellate hearing, the appellant has the right to withdraw part or all of the content of the appeal; the prosecution has the right to withdraw part or all of the content of the protest; the higher-level prosecution has the right to withdraw part or all of the content of the lower-level prosecution's protest.

18. Article 64 is amended and supplemented as follows:

"Article 64

1. The appellate trial is conducted according to the procedures of the initial trial. Before reviewing the appeal or protest, a member of the bench presents the content of the case, the decision of the initial judgment, and the content of the appeal or protest.

2. The appellate court has the power:

a) To reject the appeal or protest and maintain the decisions of the initial judgment or decision;

b) To amend part or all of the decision of the initial judgment or decision;

c) To annul the initial judgment or decision and transfer the case file to the initial court for retrial if there is a serious violation of procedural rules or insufficient verification and collection of evidence that the appellate court cannot supplement;

d) To temporarily suspend the resolution of the case if one of the circumstances specified in Article 40 of this Ordinance occurs;

đ) To annul the initial judgment or decision and suspend the resolution of the case if one of the circumstances specified in Article 41 of this Ordinance occurs;

e) To suspend the resolution of the case through the appellate procedure, if the appellate trial requires the presence of the appellant who has been legally summoned for the second time but still fails to appear without a legitimate reason. In this case, the initial judgment takes legal effect.

For cases involving multiple appellants, the court will still conduct the appellate trial, but will not review the content of the appeal of the absent appellant.

3. The initial judgment or decision is amended partially or entirely when:

a) The content is contrary to the law, inconsistent with the case file;

b) New evidence shows that the initial judgment or decision is contrary to the law, inconsistent with the objective facts of the case.

19. Amend some terms in Articles 19, 28, 37, 40, 46, 56, and 73 as follows:

1. Replace "defendant party" as stipulated in Clause 1, Article 37 and Clause 1, Article 46 with "the defendant";

2. Replace "legal entity" as stipulated in Clause 3, Article 19, Clause 2, Article 28, Clause 1, Article 40, Clause 1, Article 56, and Article 73 with "agency, organization".

Article 2

This Ordinance shall take effect from the date of promulgation.

The Government and the Supreme People's Procuracy within their respective functions and duties shall be responsible for guiding the implementation of this Ordinance./.

Article 3

The Government, the Supreme People's Court, and the Supreme People's Procuracy shall guide the implementation of this Ordinance within their respective functions and powers./.