Nghị định 158/2018/NĐ-CP quy định về thành lập tổ chức lại giải thể tổ chức hành chính

DECREE

PRESCRIBING ESTABLISHMENT, RESTRUCTURING AND DISSOLUTION OF ADMINISTRATIVE UNITS

Pursuant to the Law on Organization of Government dated June 19, 2015;

Pursuant to the Law on Organization of Local Governments dated June 19, 2015;

At the request of the Minister of Home Affairs;

The Government promulgates a Decree prescribing establishment, restructuring and dissolution of administrative units. 

Chapter I

GENERAL PROVISIONS

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This Decree deals with rules, conditions, procedures and authority to establish, restructure and dissolve administrative units.

Article 2. Regulated entities

1. Administrative units established under decision of and directly managed by the Prime Minister.

2. Administrative units of ministries or ministerial agencies (hereinafter referred to as “ministries”), including:

a) Offices, inspectorates, departments, bureaus, general departments and equivalent organizations in the organizational structure of ministries;

b) Offices, inspectorates (if any), departments, bureaus and equivalent organizations in the organizational structure of general departments and general department-equivalent organizations (hereinafter referred to as “general departments”);

c) Divisions in the organizational structure of offices, inspectorates, departments (if any), bureaus and equivalent organizations affiliated to ministries;

d) Divisions in the organizational structure of offices, departments and equivalent organizations affiliated to general departments;

dd) Sub-departments and equivalent organizations in the organizational structure of departments affiliated to ministries (hereinafter referred to as “sub-departments affiliated to ministry-affiliated departments”);

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g) Divisions and equivalent organizations in the organizational structure of sub-departments affiliated to ministry-affiliated departments;

h) Divisions and equivalent organizations in the organizational structure of sub-departments affiliated to general department-affiliated departments.

3. Administrative units of Governmental agencies (if any).

a) Administrative units in the organizational structure of Governmental agencies;

b) Divisions in the organizational structure of administrative units of Governmental agencies.

4. Administrative units of provinces or central-affiliated cities (hereinafter referred to as “provincial level), including:

a) Specialized agencies affiliated to provincial People's Committees (hereinafter referred to as “provincial departments”);

b) Offices, inspectorates, specialized divisions, sub-departments and equivalent organizations in the organizational structure of provincial departments;

c) Divisions in the organizational structure of provincial department-affiliated sub-departments;

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dd) Offices, divisions, sub-departments and equivalent organizations in the organizational structure of other administrative units affiliated to provincial People's Committees.

5. Administrative units of urban/suburban districts, district-level towns, provincial cities or cities affiliated to central-affiliated cities (hereinafter referred to as “district level”), including:

a) Specialized agencies affiliated to district-level People's Committees (hereinafter referred to as “district-level divisions”);

b) Other administrative units affiliated to district-level People's Committees.

6. This Decree does not apply to establishment, restructuring and dissolution of:

a) Ministries, ministerial agencies and governmental agencies;

b) Provincial People's Councils and provincial People's Committees;

c) District-level People's Councils and district-level People's Committees;

d) People's Councils and People's Committees of communes, wards and commune-level town.

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For the purposes of this Decree, the terms below are construed as follows:

1. “administrative unit” means a unit that is assigned with counseling function to assist the head of an agency or organization performing state management tasks or an organization performing state management in assigned sector or field, or provides counseling on internal management of agencies/organizations and is established in accordance with regulations of law.

2. “equivalent organization” means an administrative unit that has the same position, functions and tasks as the one defined in Clause 2 and Point b, Point dd Clause 4 Article 2 hereof but has another name and is established in accordance with regulations of law.

3. “restructuring” means the arrangement and strengthening of administrative units in the forms of full/partial division, merger, conversion or adjustment of functions/tasks to establish new administrative units.

Article 4. Rules for establishment, restructuring and dissolution of administrative units

1. The establishment, restructuring and dissolution of administrative units must comply with conditions, procedures and authority prescribed herein and other relevant legislative documents. A new administrative unit shall be established only if it is necessary to serve actual demands.

2. The establishment and restructuring of administrative units must not exceed the number of administrative units prescribed by the Government, the Prime Minister or competent authorities.

Article 5. Conditions for establishment, restructuring and dissolution of administrative units

1. An administrative unit shall be established if all of the following conditions are satisfied:

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b) It meets establishment criteria as prescribed by law;

c) It has state management scope and entities in assigned sectors or fields or its internal management fields;

d) Its functions, tasks and powers are not overlapped with those of other administrative units;

dd) Its form and scope must be conformable with its functions, tasks and powers and state administrative reform requirements.

2. An administrative unit shall be restructured in the following cases:

a) There are adjustments to its functions, tasks, powers, organizational structure, management scope or entities as prescribed by competent authorities or persons;

b) It operates ineffectively as assessed by a competent authority.

The restructuring to establish a new administrative unit must meet the criteria/conditions for establishment of administrative units laid down in Clause 1 of this Article.

3. An administrative unit shall be dissolved when it does not have functions, tasks or management scope or entities.

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PROCEDURES FOR ESTABLISHMENT, RESTRUCTURING AND DISSOLUTION OF ADMINISTRATIVE UNITS

Section 1. ESTABLISHMENT

Article 6. Establishment scheme

1. The establishment scheme shall be prepared and submitted by the agency or organization requesting for establishment of an administrative unit to a competent authority or person for consideration.

2. Contents of the establishment scheme:

a) The necessity and legal grounds for establishing the administrative unit;

b) Objectives, management scope and entities;

c) Form and name of the administrative unit;

d) Position, functions, tasks, powers and organizational structure;

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e) Estimated working positions and payroll of officials according to scale-based working positions and structure of officials which must be conformable with its functions, tasks and powers; information about its working office and equipment and financial mechanism for ensuring its operation;

g) Establishment plan and roadmap for operation of the administrative unit;

h) Suggestions of the agency or organization preparing the establishment scheme (if any);

i) Other contents as prescribed by the specialized law and guidelines given by the supervisory ministry.

Article 7. Establishment proposal

1. The establishment proposal shall be prepared and submitted by the agency or organization requesting for establishment of an administrative unit to a competent authority or person for consideration.

2. The establishment proposal includes the following contents:

a) The necessity and legal grounds for establishing the administrative unit;

b) Process of formulation of the establishment scheme;

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d) Issues with different opinions and relevant issues.

3. The establishment proposal must be signed and submitted by the head of the agency or organization requesting for establishment of an administrative unit to a competent authority or person for decision.

4. Agencies/organizations requesting for establishment of administrative units:

a) The Ministry of Home Affairs shall request for establishment of the administrative units specified in Clause 1 Article 2 hereof;

b) Ministries shall request for establishment of the administrative units specified in Point a, Point b Clause 2 Article 2 hereof;

c) Offices, inspectorates, departments, bureaus and equivalent organizations affiliated to ministries shall request for establishment of the administrative units specified in Point c Clause 2 Article 2 hereof;

d) Ministry-affiliated general departments shall request for establishment of the administrative units specified in Point d, Point e and Point h Clause 2 Article 2 hereof;

In case a Director General of a General Department is assigned by a Minister to issue a decision to establish the administrative unit prescribed in Point h Clause 2 Article 2 hereof, the general department-affiliated department shall submit request for establishment of the administrative unit.

dd) Ministry-affiliated departments shall request for establishment of the administrative units specified in Point dd, and Point g Clause 2 Article 2 hereof;

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g) Administrative units affiliated to Governmental agencies shall request for establishment of the administrative units specified in Point b Clause 3 Article 2 hereof;

h) Provincial People's Committees shall request for establishment of the administrative units specified in Point a Clause 4 Article 2 hereof;

i) Specialized agencies affiliated to Provincial People's Committees shall request for establishment of the administrative units specified in Point b, Point c Clause 4 Article 2 hereof;

k) Provincial People's Committees shall request for establishment of the administrative units specified in Point d Clause 4, Point b Clause 5 Article 2 hereof under the deciding authority of the Prime Minister as prescribed by law;

If Provincial People's Committees are allowed to decide the establishment of the administrative units specified in point d Clause 4 and district-level People's Committees are allowed to decide the establishment of the administrative units specified in point b Clause 5 Article 2 hereof as prescribed by law, agencies requesting for establishment shall be specialized agencies providing counseling on state management of organization of Provincial People's Committees/ district-level People's Committees.

l) Other administrative units affiliated to Provincial People's Committees shall request for establishment of the administrative units specified in Point dd Clause 4 Article 2 hereof;

m) District-level People's Committees shall request for establishment of the administrative units specified in Point a Clause 5 Article 2 hereof.

Article 8. Getting opinions from relevant agencies and organizations

Agencies/organizations requesting for establishment of administrative units must send the draft establishment schemes, proposals and draft documents given by agencies or persons competent to relevant agencies/organizations prescribed by law for getting their written opinions about the establishment of administrative units before they are sent to competent authorities for appraisal.

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1. Establishment dossier sent to agencies/organizations for appraisal includes:

a) The written request for appraisal signed and sealed by the agency or organization requesting for establishment as prescribed;

b) The draft proposal for establishment of the administrative unit;

c) The draft scheme for establishment of the administrative unit;

d) The draft document given by the authority or person competent to decide establishment of the administrative unit;

dd) Written opinions given by relevant agencies about the establishment of the administrative unit;

e) Reports made by the agency or organization requesting for establishment on receipt and explanation about opinions given by relevant agencies.

2. Documents submitted to the authority or person competent to decide establishment of the administrative unit include:

a) The proposal made by the agency or organization requesting for establishment;

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c) The draft document given by the authority or person competent to decide establishment of the administrative unit;

d) The written record of appraisal given by competent authority;

dd) Reports made by the agency or organization requesting for establishment on receipt and explanation about opinions given by the appraising agency;

e) Reports made by the agency or organization requesting for establishment on receipt and explanation about opinions given by relevant agencies (enclosed with written opinions given by relevant agencies) and other documents relating to the establishment of the administrative unit;

g) Written opinions given by a competent authority in case the establishment of any of the administrative units in Point a Clause 2 and Point a Clause 3 Article 2 hereof results in increased number of administrative units affiliated to ministries/Governmental agencies.

Article 10. Procedures for sending and receiving establishment dossiers

1. The agency or organization requesting for establishment of the administrative unit shall send an establishment dossier to the appraising agency prescribed in Article 11 hereof. Names of relevant agencies shall be written at the part of receivers of the written request or proposal for establishment.

2. The agency or organization receiving the establishment dossier must make the list of received documents as prescribed.

3. Submitted documents are originals bearing signature and seal of the agency or organization requesting for establishment and other documents as prescribed in Clause 1 Article 9 hereof.

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1. Appraising agencies

With regard to the establishment of administrative units, appraising agencies are prescribed as follows:

a) Ministry of Home Affairs takes charge of appraising the establishment of administrative units under the deciding authority of the Government/ Prime Minister;

b) Departments (bureaus or boards) of organization and personnel affiliated to ministries/Governmental agencies take charge of appraising the establishment of administrative units under the deciding authority of Ministers, heads of ministerial agencies, or heads of Governmental agencies;

c) Specialized agencies providing counseling on state management of organization affiliated to provincial People’s Committees take charge of appraising the establishment of administrative units under the deciding authority of provincial People’s Committees;

d) Specialized agencies providing counseling on state management of organization affiliated to district-level People’s Committees take charge of appraising the establishment of administrative units under the deciding authority of district-level People’s Committees;

2. Contents of appraisal:

a) The necessity and legal grounds for establishing the administrative unit;

b) Objectives, scope, entities, name, form, legal status, functions, tasks, powers and organizational structure of the administrative unit;

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d) Conditions for ensuring operation of the administrative unit after establishment;

dd) Reports on fulfillment of establishment criteria as prescribed by law;

e) The feasibility of establishment of the administrative unit;

g) The draft document given by the authority or person competent to decide establishment of the administrative unit.

With regard to unclear issues or issues with different opinions, the appraising agency shall request the agency or organization requesting for establishment shall provide additional written explanations or, with the authorization given by the person competent to decide the establishment of the administrative unit, to hold a meeting with the agency or organization submitting the establishment scheme and relevant agencies to clarify such issues and report competent authority or person for decision.

3. If the decision to establish the administrative unit is a legislative document, the appraisal must also comply with regulations of the Law on promulgation of legislative documents.

Article 12. Reporting on establishment of administrative unit

1. If the establishment of any of the administrative units in Point a Clause 2 and Point a Clause 3 Article 2 hereof results in increased number of administrative units affiliated to ministries/Governmental agencies, the agency requesting for establishment shall report it to the Government for submission to competent authorities for giving opinions.

2. Procedures for reporting on establishment of the administrative unit:

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b) The agency requesting for establishment shall consolidate, receive and explain about opinions given by relevant agencies for completing the draft establishment scheme and proposal, and send them to the Ministry of Home Affairs and Ministry of Justice for appraisal (enclosed with written opinions given by relevant agencies);

c) The agency requesting for establishment shall consolidate, receive and explain about opinions given by the Ministry of Home Affairs and Ministry of Justice, complete the establishment scheme and send it to the Government for opinions;

d) The agency requesting for establishment shall receive and explain about opinions given by the Government’s members for completing the establishment scheme and submitting it to competent authorities for their opinions.

Article 13. Establishment decision

1. Based on the written request for establishment, appraisal record and written opinions given by competent authorities (in case the establishment of the administrative unit specified in Point a Clause 2 or Point a Clause 3 Article 2 hereof results in an increased number of the administrative units affiliated to Ministries/Governmental agencies), the  authority or person competent to decide establishment of the administrative unit shall issue a decision to establish the administrative unit.

2. Form of the document on establishment of the administrative unit must be conformable with the authority to decide the establishment of the administrative unit and other relevant legislative documents.

Article 14. Processing establishment dossier and time limit thereof

1. For appraisal of establishment of administrative unit:

a) With regard to the establishment of an administrative unit under the deciding authority of the Government or Prime Minister, within 15 days from the receipt of adequate documents as prescribed, the appraising agency shall give the appraisal record to the agency or organization requesting for establishment;

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2. For decision to establish administrative unit:

Within 10 days from the day on which the agency or organization requesting for establishment completes the establishment dossier according to opinions given by the appraising agency and submits it as prescribed, the competent authority or person shall issue a decision to establish the administrative unit.

If the authority or person competent to decide the establishment of the administrative unit does not approve the establishment of the administrative unit, it shall give written opinions (including reasons for such refusal) to the agency or organization requesting for establishment.

Section 2. RESTRUCTURING AND DISSOLUTION

Article 15. Scheme and proposal for restructuring of an administrative unit

1. The Scheme for restructuring of an administrative unit includes the following contents:

a) The contents prescribed in Clause 2 Article 6 hereof;

b) Organization and operation of the administrative unit before restructuring;

c) Plan for settlement of organization, personnel, finance, assets, land and other relevant issues;

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dd) Responsibilities of the head of the administrative unit and other related individuals for implementation of the plan for restructuring of an administrative unit and processing time limit.

2. The proposal for restructuring of an administrative unit shall include the same contents as those of the proposal for establishment of the administrative unit prescribed in Article 7 hereof.

Article 16. Scheme and proposal for dissolution of an administrative unit

1. The Scheme for dissolution of an administrative unit includes the following contents:

a) Necessity and legal grounds for dissolution;

b) Plan for settlement of organization, personnel, finance, assets, land and other relevant issues;

c) Documents given by competent authorities to certify finance, assets, land, loans, debt repayment and other relevant issues (if any);

d) Responsibilities of the head of the administrative unit and other related individuals for implementation of the plan for dissolution of an administrative unit and processing time limit.

2. The proposal for dissolution of an administrative unit shall include the same contents as those of the proposal for establishment of the administrative unit prescribed in Article 7 hereof.

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1. A dossier for restructuring or dissolution of an administrative unit includes:

a) The Scheme for restructuring or dissolution of the administrative unit;

b) The proposal for restructuring or dissolution of the administrative unit;

c) The draft document given by the authority or person competent to decide the restructuring or dissolution of the administrative unit;

d) Documents given by competent authorities to certify the completion of finance, asset, land, loan and debt repayment obligations and other relevant issues (if any).

2. Getting opinions of relevant agencies, procedures for submission and receipt of documents, appraisal, processing of documents and time limit for processing restructuring or dissolution of an administrative unit shall be same as those for establishment of an administrative unit.

Chapter III

AUTHORITY AND RESPONSIBILITY

Article 18. Authority of Government/Prime Minister

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2. The Government issues criteria for establishment of administrative units in accordance with regulations of law.

3. The Government decides the establishment, restructuring and dissolution of the administrative units prescribed in Point a Clause 2 and Point a Clause 3 Article 2 hereof.

4. The Prime Minister decides the establishment, restructuring and dissolution of the administrative units prescribed in Clause 1, Point b Clause 2 Article 2 hereof (except organizations affiliated to the General Staff or General Department of Politics of Vietnam People’s Army); decides the establishment, restructuring and dissolution of the administrative units prescribed in Point d Clause 4 and Point b Clause 5 Article 2 hereof in accordance with regulations of law.

Article 19. Authority and responsibility of Minister of Home Affairs

1. Promulgate or propose the promulgation of legislative documents on administrative units, documents providing guidance on professional operations, forms and reporting serving management of administrative units to competent authorities or persons.

2. Request the Government to issue general criteria for establishment, restructuring and dissolution of the administrative units prescribed in Clause 2, Clause 3, Clause 4 and Clause 5 Article 2 hereof.

3. Consolidate and update information about administrative units nationwide and submit reports to competent authorities in accordance with regulations of law.

Article 20. Authority and responsibility of Ministers, heads of ministerial agencies and heads of Governmental agencies

1. Ministers and heads of ministerial agencies shall have the following powers and responsibilities:

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b) Decide the establishment, restructuring and dissolution of the administrative units prescribed in Point c, Point d, Point dd, Point e, Point g, Point h Clause 2 Article 2 hereof or assign General Directors of General Departments to decide the establishment of the administrative units prescribed in Point h Clause 2 Article 2 hereof.

2. heads of Governmental agencies shall decide the establishment, restructuring and dissolution of the administrative units prescribed in Point b Clause 3 Article 2 hereof.

Article 21. Authority and responsibility of provincial People’s Committees and district-level People’s Committees

1. Provincial People’s Committees request People's Councils of the same level to decide the establishment, restructuring and dissolution of the administrative units prescribed in Point a Clause 4 Article 2 hereof.

2. Provincial People’s Committees decide the establishment, restructuring and dissolution of the administrative units prescribed in Point b, Point c, Point dd Clause 4 Article 2 hereof; decide the establishment, restructuring and dissolution of the administrative units prescribed in Point d Clause 4 Article 2 hereof in accordance with regulations of law.

3. District-level People’s Committees request People's Councils of the same level to decide the establishment, restructuring and dissolution of the administrative units prescribed in Point a Clause 5 Article 2 hereof.

4. District-level People’s Committees decide the establishment, restructuring and dissolution of the administrative units prescribed in Point b Clause 5 Article 2 hereof in accordance with regulations of law.

Article 22. Provision of information and reporting on administrative units

Ministries, ministerial agencies, Governmental agencies and other administrative units established by the Government, the Prime Minister, provincial People's Committees shall:

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2. Consolidate and send periodic reports on administrative units under their management to Ministry of Home Affairs by December 20 every year.

Chapter IV

IMPLEMENTATION

Article 23. Transition

1. Schemes and proposals which have been sent to authorities or persons competent to decide the establishment, restructuring and dissolution of administrative units before this Decree comes into force but competent authorities or persons do not yet issue decisions on establishment, restructuring and dissolution of administrative units shall be processed according to the Government’s Decree No. 83/2006/ND-CP dated August 17, 2006.

2. If the establishment of the administrative units in Point a Clause 2 and Point a Clause 3 Article 2 hereof results in increased number of administrative units affiliated to ministries/Governmental agencies, the agencies or organizations requesting for establishment shall report and get opinions according to Article 12 hereof.

Article 24. Effect

This Decree comes into force from January 10, 2019 and supersedes the Government’s Decree No. 83/2006/ND-CP dated August 17, 2006.

Article 25. Responsibility for implementation

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ON BEHALF OF THE GOVERNMENT
THE PRIME MINISTER




Nguyen Xuan Phuc