Law Amending and Supplementing Certain Articles of the Law on Petition and Complaint No. 58/2005/QH11

NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM

Eleventh Session, Eighth Meeting
(From October 18 to November 29, 2005)

LAW

Amending and Supplementing Certain Articles of the Law on Petition and Complaint

_____________________

Pursuant to the Constitution of the Socialist Republic of Vietnam in 1992, amended and supplemented by Resolution No. 51/2001/QH10 dated December 25, 2001 of the National Assembly, tenth session;
This Law amends and supplements certain articles of the Law on Petition and Complaint dated December 2, 1998, which has been amended and supplemented by the Law Amending and Supplementing Certain Articles of the Law on Petition and Complaint dated June 15, 2004.

Article 1: Amends and supplements the following articles of the Law on Petition and Complaint:

1. Clause 16 of Article 2 shall be amended and supplemented as follows:

"16. A decision resolving a petition that has legal effect includes a first-instance decision resolving a petition, and a second-instance decision resolving a petition where the petitioner does not file a further petition within the time limit prescribed by law, nor initiate an administrative lawsuit at the court."

2. Article 17 shall be amended and supplemented as follows:

"Article 17

1. The petitioner has the following rights:

a) To file a petition personally; in cases where the petitioner is a minor, a person with mental illness, or another person who cannot recognize or control their own behavior, their legal representative shall file the petition; in cases where the petitioner is ill, elderly, physically weak, or for other objective reasons cannot file a petition personally, they may authorize their father, mother, spouse, brother, sister, adult child, or another person to file the petition;

b) To seek legal assistance from a lawyer during the petition process;

c) To know the evidence used as the basis for resolving the petition; to present evidence regarding the petition and explain their views on such evidence;

d) To receive a document acknowledging receipt of the petition for resolution; to know information and materials related to the resolution of the petition; to receive a decision resolving the petition;

đ) To have their lawful rights and interests restored, and to be compensated for damages according to the provisions of the law;

e) To file a further petition or initiate an administrative lawsuit at the court according to the provisions of the law on petitions and complaints and the law on administrative litigation procedures;

g) To withdraw the petition during the resolution process.

2. The petitioner has the following obligations:

a) To file the petition with the competent authority;

b) To truthfully state the facts, provide information and materials to the authority resolving the petition; to bear responsibility under the law for the contents stated and the information and materials provided;

c) To strictly comply with a decision resolving the petition that has legal effect."

3. Article 18 shall be amended and supplemented as follows:

"Article 18

1. The respondent has the following rights:

a) To know the grounds for the petition filed by the petitioner; to present evidence regarding the legality of the administrative decision or administrative act being petitioned;

b) To receive a second-instance decision resolving the petition issued by the competent authority or a judgment or decision of the court concerning the petition they resolved but the petitioner continued to file a petition or initiated an administrative lawsuit at the court.

2. The respondent has the following obligations:

a) To accept the petition, notify the petitioner in writing about the acceptance for resolution of the administrative decision or administrative act being petitioned; to amend or revoke the administrative decision or administrative act being petitioned; to send the decision resolving the petition to the petitioner and bear responsibility under the law for their resolution; in cases where the petition was transferred by an agency, organization, or individual, to notify the agency, organization, or individual of the resolution or result of the resolution according to the provisions of the Law on Petitions and Complaints;

b) To explain the legality and correctness of the administrative decision or administrative act being petitioned, to provide relevant information and materials when requested by the authority resolving the second-instance petition;

c) To strictly comply with a decision resolving the petition that has legal effect;

d) To compensate for losses, make restitution, and rectify consequences caused by their unlawful administrative decisions or acts according to the provisions of the law."

4. Article 23 shall be amended and supplemented as follows:

"Article 23

The Chairman of the People's Committee of a province or centrally governed city (hereinafter referred to collectively as provincial level) has the authority:

1. To resolve petitions against his own administrative decisions or administrative acts;

2. To resolve petitions that the Chairman of the People's Committee of a district-level has resolved initially but there are still petitions;

3. To resolve petitions that the Director of a department or equivalent body under the People's Committee of a province-level has resolved initially but there are still petitions whose content falls within the management scope of the People's Committee of a province."

5. Article 25 is amended and supplemented as follows:

"Article 25

The Minister, Head of a ministerial-level agency, or Head of an agency under the Government has the authority:

1. To resolve petitions against their own administrative decisions or administrative acts, or those of directly managed civil servants;

2. To resolve petitions that have been initially resolved by the persons specified in Article 24 of the Law on Petitions and Complaints but there are still petitions;

3. To resolve petitions whose content falls within the scope of state management of their ministry or sector, where the Chairman of the People's Committee of a province, the Director of a department or equivalent body under the People's Committee of a province has resolved initially but there are still petitions."

6. Article 26 shall be amended and supplemented as follows:

"Article 26

The General Inspector has the authority:

1. To resolve petitions that have been initially resolved by the Heads of agencies under the Government but there are still petitions;

2. To assist the Prime Minister in overseeing, inspecting, and urging ministries, ministerial-level agencies, agencies under the Government, and People's Committees at all levels in receiving citizens, resolving petitions, and implementing decisions resolving petitions that have legal effect.

In case of discovering violations of the law causing damage to the interests of the State, the lawful rights and interests of citizens, agencies, or organizations, to recommend the Prime Minister or the competent authority to take necessary measures to stop the violation, examine the responsibility, and handle the violator."

7. Article 28 shall be amended and supplemented as follows:

"Article 28

The Prime Minister has the authority:

1. Direct the work of handling complaints from ministries, ministerial-level agencies, government agencies, and people's committees at all levels;

2. Handle the recommendations of the General Inspector as stipulated in Clause 2, Article 26 of the Law on Complaints and Petitions.

8. Article 32 shall be amended and supplemented as follows:

"Article 32

A complaint falls under one of the following cases shall not be accepted for resolution:

1. The administrative decision or administrative act being complained about does not directly relate to the legitimate rights and interests of the complainant;

2. The complainant lacks full civil capacity and does not have a lawful representative;

3. An unlawful representative;

4. The time limit for lodging a complaint has expired;

5. The complaint has been resolved through the second-level complaint resolution process;

6. The complaint has been accepted by the court for resolution or there is a judgment or decision of the court."

9. Article 36 shall be amended and supplemented as follows:

"Article 36

1. The time limit for resolving the first-level complaint shall not exceed thirty days from the date of acceptance for resolution; for complex cases, the resolution period may be extended but shall not exceed forty-five days from the date of acceptance for resolution.

In remote areas with difficult access, the time limit for resolving the first-level complaint shall not exceed forty-five days from the date of acceptance for resolution; for complex cases, the resolution period may be extended but shall not exceed sixty days from the date of acceptance for resolution.

2. If the person authorized to resolve the complaint fails to resolve it within the time limit specified in this clause, they must be subject to disciplinary action. The complainant has the right to request the immediate superior of the person who did not resolve the complaint to consider disciplinary action against that person."

10. Article 37 shall be amended and supplemented as follows:

"Article 37

During the process of resolving the first-level complaint, the person resolving the complaint must meet and engage in direct dialogue with the complainant and the person being complained about to clarify the content of the complaint, the demands of the complainant, and the direction for resolving the complaint. If the complainant seeks legal assistance from a lawyer, the lawyer has the right to participate in the complaint resolution process. The person resolving the first-level complaint must issue a written decision on the resolution of the complaint and send this decision to the complainant, the person being complained about, and those with related rights and interests. The decision on the resolution of the complaint must be publicly announced."

11. Article 38 shall be amended and supplemented as follows:

"Article 38

The decision on the resolution of the first-level complaint must include the following contents:

1. Date, month, year of issuance;

2. Name and address of the complainant, the person being complained about;

3. Content of the complaint;

4. Results of verifying the content of the complaint; legal basis for resolving the complaint;

5. Conclusion on whether the content of the complaint is correct, partially correct, or entirely incorrect;

6. Maintain, amend, or revoke part or all of the administrative decision, terminate the administrative act being complained about; resolve specific issues within the content of the complaint;

7. Compensation for the person suffering losses (if applicable);

8. Right to lodge a further complaint, right to initiate an administrative lawsuit before the court."

12. Article 39 shall be amended and supplemented as follows:

"Article 39

Within thirty days from the expiration of the resolution period specified in Article 36 of the Law on Complaints and Petitions, if the complaint is not resolved or from the date of receipt of the first-level complaint resolution decision and the complainant disagrees, the complainant has the right to lodge a complaint with the person authorized to resolve the second-level complaint or initiate an administrative lawsuit before the court; for remote areas with difficult access, the above period may be extended but shall not exceed forty-five days.

In the case where the complainant disagrees with the first-level complaint resolution decision of the Minister, the head of a ministerial-level agency, or the Chairman of the provincial People's Committee, the complainant has the right to initiate an administrative lawsuit before the provincial People's Court, except where otherwise provided by law."

13. Article 40 shall be amended and supplemented as follows:

"Article 40

When lodging a further complaint, the complainant must submit a petition along with a copy of the first-level complaint resolution decision and any related documents (if available) to the person authorized to resolve the second-level complaint."

14. Article 41 shall be amended and supplemented as follows:

"Article 41

Within ten days from the date of receiving a complaint within their jurisdiction and not falling under any of the cases specified in Article 32 of the Law on Complaints and Petitions, the person authorized to resolve the second-level complaint must accept the complaint for resolution and notify the complainant and the person who resolved the first-level complaint in writing; if the complaint is not accepted for resolution, a written notification must be sent to the complainant and the reasons must be clearly stated."

15. Article 42 shall be amended and supplemented as follows:

"Article 42

During the process of resolving the second-level complaint, if it is found that the implementation of the administrative decision being complained about or the first-level complaint resolution decision will cause irreparable consequences, the person authorized to resolve the second-level complaint must issue a decision or recommend the competent authority to issue a decision temporarily suspending the implementation of that decision.

The temporary suspension period shall not exceed the remaining time of the resolution period. The temporary suspension decision must be sent to the complainant, the person who resolved the first-level complaint, and those with related rights and interests. When it is determined that the reason for the temporary suspension no longer exists, the temporary suspension decision must be immediately revoked."

16. Article 43 shall be amended and supplemented as follows:

"Article 43

1. The time limit for resolving the second-level complaint shall not exceed forty-five days from the date of acceptance for resolution; for complex cases, the resolution period may be extended but shall not exceed sixty days from the date of acceptance for resolution.

In remote areas with difficult access, the time limit for resolving the second-level complaint shall not exceed sixty days from the date of acceptance for resolution; for complex cases, the resolution period may be extended but shall not exceed seventy days from the date of acceptance for resolution.

2. If the person authorized to resolve the complaint fails to resolve it within the time limit specified in this clause, they must be subject to disciplinary action. The complainant has the right to request the immediate superior of the person who did not resolve the complaint to consider disciplinary action against that person."

17. Article 44 shall be amended and supplemented as follows:

"Article 44

1. During the process of resolving the second-level complaint, the person resolving the complaint has the following rights:

a) Request the complainant to provide information, documents, and evidence regarding the content of the complaint;

b) Request the person being complained against to provide a written explanation regarding the contents of the complaint;

c) Request the first-level complaint resolver, individuals, agencies, and related organizations to provide information, documents, and evidence relevant to the complaint;

d) Summon the person being complained against and the complainant for a dialogue;

đ) Verify on-site;

e) Seek expert opinions, and take other measures as prescribed by law.

2. Individuals, agencies, and organizations upon receiving the requests stipulated in Clause 1 of this Article must comply with such requests.

18. Article 45 is amended and supplemented as follows:

“Article 45

1. During the process of resolving the second-level complaint, the complaint resolver may meet and have direct dialogues with the complainant and the person being complained against to clarify the content of the complaint, the complainant's request, and the direction for resolving the complaint. If the complainant seeks legal assistance from a lawyer, the lawyer has the right to participate in the complaint resolution process.

2. The second-level complaint resolver must issue a decision to resolve the complaint in writing. The decision to resolve the complaint shall include the following contents:

a) Date of issuance of the decision;

b) Name and address of the complainant and the respondent;

c) Content of the complaint;

d) Conclusion on the handling of the first-level complaint resolver;

đ) Results of verification and investigation;

e) Legal basis for resolving the complaint;

g) Conclusion that the complaint content is correct, partially correct, or entirely incorrect. In cases where the complaint is correct or partially correct, the decision requires the administrative decision maker or the administrative act violator to amend, revoke partially or entirely the administrative decision, or terminate the administrative act complained about;

h) Compensation for damages (if any);

i) Right to initiate an administrative lawsuit at the court.

3. The second-level complaint resolution decision must be sent to the complainant, the person being complained against, the first-level complaint resolver, those with rights and interests involved, and the person who forwarded the complaint within the latest period of 7 days from the date of the resolution decision.

The second-level complaint resolution decision must be publicly announced.”

19. Article 46 is amended and supplemented as follows:

“Article 46

Within 30 days from the expiration date of the time limit for resolution prescribed in Article 43 of the Law on Complaints and Petitions, if the complaint is not resolved or from the date of receipt of the complaint resolution decision which the complainant disagrees with, then the complainant has the right to initiate an administrative lawsuit at the court; for remote areas with difficult access, the above-mentioned period may be extended, but not exceeding 45 days.”

20. Article 47 is amended and supplemented as follows:

“Article 47

1. The resolution of complaints must be recorded in a file. The complaint resolution file includes:

a) The complaint letter or record of the complaint;

b) The response document from the person complained against;

c) Minutes of verification, investigation, conclusions, appraisal results, meeting and dialogue minutes;

d) The complaint resolution decision;

đ) Related documents.

2. The complaint resolution file must be numbered according to the order of documents and stored in accordance with the provisions of the law. In case the complainant initiates an administrative lawsuit at the court, the file must be transferred to the court upon request.”

Article 2.

1. Repeal Clause 15 of Article 2 of the Law on Complaints and Petitions.

2. Replace the phrase "this decision is the final decision on complaint resolution" in Paragraph 2 of Article 54 of the Law on Complaints and Petitions with the phrase "this decision is effective".

Article 3.

This Law takes effect from June 1, 2006.

Complaints accepted for resolution before this Law takes effect shall be handled in accordance with the Law on Complaints and Petitions 1998 and the Law Amending and Supplementing Certain Provisions of the Law on Complaints and Petitions 2004.

The Government shall promulgate detailed regulations and provide guidance on the implementation of this Law.

This Law was adopted by the National Assembly of the Socialist Republic of Vietnam, the 11th term, the 8th session, on November 29, 2005./.