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THE
SUPREME PEOPLE'S COURT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
04/2006/NQ-HDTP
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Hanoi,
August 04, 2006
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RESOLUTION
GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE
ORDINANCE ON PROCEDURES FOR SETTLEMENT OF ADMINISTRATIVE CASES, WHICH WAS
AMENDED AND SUPPLEMENTED UNDER THE ORDINANCES OF DECEMBER 25, 1998, AND APRIL
5, 2006, AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE ORDINANCE ON
PROCEDURES FOR SETTLEMENT OF ADMINISTRATIVE CASES
THE JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT
Pursuant to the Law on Organization of the
People's Courts;
In order to properly and uniformly implement the provisions of the Ordinance on
Procedures for Settlement of Administrative Cases, which was amended and
supplemented under the Ordinances of December 25, 1998, and April 5, 2006,
amending and supplementing a number of articles of the Ordinance on Procedures
for Settlement of Administrative Cases (hereinafter referred to as the
Ordinance for short);
After getting the consent of the Chairman of the Supreme People's Procuracy and
the Justice Minister,
RESOLVES:
1. Regarding the provisions
of Article 2 of the Ordinance
1.1. The provision on "persons competent to
settle first-time complaints"
"Persons competent to settle first-time
complaints" provided for in Article 2 of the Ordinance mean state
administrative agencies, competent persons in state administrative agencies or
heads of agencies or organizations in one of the following cases:
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b/ Who directly manage cadres or officials who
have issued one of administrative decisions or committed one of administrative
acts defined in Article 11 of the Ordinance.
1.2. The provisions of Point c, Clause 1,
Article 2 of the Ordinance
a/ Upon receipt of lawsuits against
administrative decisions or administrative acts, for which the competence to
settle first-time complaints belongs to ministers or heads of ministerial-level
agencies, the courts shall base themselves on Article 11 of the Ordinance to
check whether such lawsuits fall under their handling jurisdiction. In cases
where such lawsuits fall under their handling jurisdiction, the courts shall
proceed to open files for the cases according to common procedures if the
lawsuit initiators had already lodged complaints with ministers or heads of
ministerial-level agencies and the time limit for settlement of first-time
complaints had expired while the complaints have not been settled or have been
settled under decisions on settlement of first-time complaints.
b/ Upon receipt of lawsuits against
administrative decisions or administrative acts, for which the settlement of
first-time complaints falls under the competence of presidents of
provincial-level People's Committees, the courts must base on Articles 25 and
39 of the Law on Complaints and Denunciations to consider them, specifically as
follows:
b.1/ For administrative decisions or
administrative acts with contents falling under the state management rights of
ministries, ministerial-level agencies or government-attached agencies, the
courts shall proceed to open files for the cases according to common procedures
if the lawsuit initiators had lodged their first-time complaints to presidents
of provincial-level People's Committees but past the settlement time limit
provided for by the law on complaints and denunciations their complaints have
not been settled or have been settled under decisions on settlement of
first-time complaints and the complaints were not further lodged to persons
competent to settle second-time complaints;
b.2/ For administrative decisions or
administrative acts with contents not falling under the state management rights
of ministries, ministerial-level agencies or government-attached agencies, the
courts shall proceed to open files for the cases according to the common
procedures if the lawsuit initiators had lodged their complaints to presidents
of provincial-level People's Committees but past the settlement time limit
prescribed by the law on complaints and denunciations their complaints have not
been settled or have been settled under decisions on settlement of first-time
complaints.
1.3. Application of Point d, Clause 1, Article 2
of the Ordinance
Upon receipt of lawsuits against administrative
decisions or administrative acts, for which the second-time complaints have
been settled, it is necessary to make the distinction as follows:
a/ For cases which had arisen prior to 00:00 hrs
of June 1, 2006, and the complainants had lodged their complaints to persons
competent to settle second-time complaints and the time limit for settlement of
second-time complaints under the provisions of law on complaints and
denunciations had expired before 00:00 hrs of June 1, 2006, while the complaints
had not been settled (except for cases guided in Item 13.1, Section 13 of this
Resolution) or had been settled before 00:00 hrs of June 1, 2006, but the
complainants disagreed with the settlement, if they initiate administrative
cases, the courts shall base on Point a, Clause 1, Article 31 of the Ordinance
to return the lawsuit petitions to the initiators.
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1.4. Handling of lawsuits initiated for
administrative cases
Immediately after receipt of lawsuits for
administrative cases, the court presidents or deputy-court presidents
authorized by the former, the presiding judges or deputy presiding judges
authorized by the former shall assign a judge to examine the lawsuits. Within
five working days after the receipt of lawsuits, the judges shall examine the
cases to see which type of lawsuits they belong to under the provisions of
Article 11 of the Ordinance and compare them with the conditions for initiating
administrative cases provided for in Article 2 of the Ordinance in order to:
a/ Proceed to open files for the cases according
to common procedures, if the conditions for initiating administrative cases are
fully met;
b/ Return the lawsuits to the initiators and
clearly state the reasons therefor, if the conditions for initiating the
administrative cases are not fully met.
Example 1: Mr. Nguyen Van A takes action against
a decision on sanctioning him for an administrative violation, issued by the
president of the People's Committee of district S, province D, and Mr. A had
complained with the president of the People's Committee of district S, but the
time limit for settlement of first-time complaints has not yet expired and the
president of the People's Committee of district S has not yet issued a decision
on settlement of the complaint, the court shall base on Point a, Clause 1,
Article 2 and Point c, Clause 1, Article 31 of the Ordinance to return the
lawsuit petition to Mr. A.
Example 2: Mr. Tran B is a judgment enforcer of
district D, province Q, who files his statement for action against the
disciplinary decision on forced job severance against him by the director of
the Justice Service of province Q, and Mr. B had already lodged his complaint
to the director of the Justice Service of province Q, but the latter has not
yet issued a decision to settle the complaint or has issued the decision but
Mr. B disagreed and further complained with the Justice Minister who has issued
a decision on settlement of the complaint, the court shall base on Clause 4,
Article 2 and Point c, Clause 1, Article 31 of the Ordinance to return the
lawsuit petition to Mr. B.
2. Administrative decisions
subject of lawsuits to request the courts to settle administrative cases
Administrative decisions being subject of
lawsuits to request the courts to settle administrative cases must be
first-time administrative decisions. In addition to administrative decisions
issued for the first time by state administrative agencies or competent persons
in state administrative agencies while handling or settling specific matters
under their competence, the following administrative decisions shall also be
regarded as first-time one:
a/ After issuing administrative decisions which
are not yet complained about, the state administrative agencies or the
competent persons in state administrative agencies that have issued such
administrative decisions issue other decisions to replace the previous
administrative decisions, the newly issued decisions shall be first-time
administrative decisions;
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It should be noted that for two above cases a
and b, if the later decisions are issued after the state administrative
agencies or the competent persons in state administrative agencies have
received complaints and such decisions are the complaint settlement outcomes,
the later decisions shall be first-time complaint settlement decisions, not
first-time administrative decisions;
c/ After the people's courts competent to settle
administrative cases issue decisions cancelling parts or whole of the
complained administrative decisions; assign state administrative agencies or
competent persons in state administrative agencies to re-settle the cases with
regard to parts or whole of the cancelled administrative decisions and the
re-settlement results are new decisions issued by the state administrative
agencies or the competent persons in state administrative agencies, such new
decisions shall be first-time administrative decisions;
d/ After the persons competent to settle
second-time complaints issue complaint settlement decisions and the
administrative-decision issuers have issued administrative decisions amending
parts or whole of such administrative decisions, the decisions amending parts
or whole of the previous administrative decisions and unamended parts of the
previous administrative decisions shall all be first-time administrative
decisions.
Example: The president of the People's Committee
of Ward T, district H, city H issues a decision to administratively sanction
Mr. with a fine of VND 400,000 and the additional sanctioning form of forced
restoration of the initial state altered due to the administrative violation.
Mr. A complains about this decision and the president of the People's Committee
of Ward T has issued a complaint settlement decision, concluding to uphold
his/her decision.
After Mr. A complains with the president of the
People's Committee of district H, city H, the president of the People's
Committee of district H issues a complaint settlement decision, concluding that
the complained contents are partly true to the decision concerning the
additional sanctioning form, and requests the president of the People's
Committee of ward H to amend such decision.
The president of the People's Committee of ward
T issues a new administrative violation-sanctioning decision, changing the
additional sanctioning form of forced restoration of the initial state altered
due to the administrative violation into the coercive application of measures
to redress the environmental pollution caused by the administrative violation.
In this case, the previous administrative
violation- sanctioning decision with the principal sanctioning form of VND 400,000-fine
and the later administrative violation-sanctioning decision with the additional
sanctioning form of coercive application of measures to redress the
environmental pollution caused by the administrative violation of the president
of the People's Committee of ward T shall all be first-time administrative
decisions.
3. Administrative acts
subject of lawsuits to request the courts to settle administrative cases
Under the provisions of Clause 2, Article 4 and
Article 11 of the Ordinance, the administrative acts subject of lawsuits to
request the courts to settle administrative cases shall include acts committed
by state administrative agencies or competent persons in state administrative
agencies of performing or not performing the tasks or official duties in the
matters or domains specified in Clauses from 3 thru 17, Article 11 of the
Ordinance or in other matters or domains prescribed by law.
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Under the provisions of Clause 6, Article 4 of
the Ordinance, respondents are individuals, agencies and organizations that
have issued the complained administrative decisions, committed the complained
administrative acts or issued disciplinary decisions on forced job severance;
hence, in order to correctly identify whether the respondents are individuals,
agencies or organizations, it is a must to base on the provisions of law on
competence to settle such cases.
Example: There are two administrative decisions
which are complained about and signed by district- level People's Committee
presidents (one decision on sanctioning of an administrative violation and one
decision on recovery of land of a household), for which the court is requested
to settle administrative cases. Based on the legal provisions on competence to
settle these cases, the respondent in the administrative case complaining about
the administrative violation-sanctioning decision shall be the district-level
People's Committee president personally (Article 29 of the Ordinance on
Handling of Administrative Violations) while the respondent in the
administrative case complaining about the decision on recovery of land of a
household shall be the district-level People's Committee (Articles 37 and 38 of
the Land Law).
It should be noted that the competent persons in
state administrative agencies, defined in Article 4 of the Ordinance, shall be
those having specific positions or titles and by law only such persons are
competent to issue administrative decisions or perform administrative acts.
Even though an administrative decision is signed or an administrative act is
performed by a specific person (Mr. Nguyen Van A, Mrs. Tran Thi X), such
administrative decision is issued or such administrative act is performed by
such person in the capacity of a competent position or title (example: the
president of the district People's Committee, chief of the ward police,');
therefore, such administrative decision or administrative act can only be
labelled as that of the district People's Committee president or ward police
chief, not of a specific person (Mr. Nguyen Van A, Mrs. Tran Thi X). Therefore,
in case the persons who had issued administrative decisions or performed
administrative acts have been transferred to other places of work or have
retired and such administrative decisions or acts are complained about, the
persons newly elected, nominated or appointed to such positions or titles shall
inherit the rights and obligations, and become the very respondents.
5. Settlement of claims for
damages in administrative cases
Under the provisions of Article 3 (paragraph 1)
of the Ordinance, the respondents in administrative cases can simultaneously
claim compensations for damage. The damage in this case is the actual damage
caused by the administrative decision or disciplinary decision on forced job
severance or by the administrative act. If the administrative case initiators
claim compensations for damage, they are obliged to supply evidences. In case
of necessity, the courts may gather additional evidences to ensure the accurate
settlement of the cases. The gathering of evidences in this case shall comply
with the provisions of the Civil Procedure Code. Where the administrative case
initiators cannot supply evidences yet, the claim for damages shall be
separated for later settlement in other administrative cases according to
common procedures, when so requested by the involved parties.
Example: A person initiates a lawsuit to request
the court to cancel a decision on confiscation of his/her means used for
commission of an administrative violation and at the same time to claim for
damages as some parts of the means were lost or damaged or his/her actual
incomes were lost due to the seizure of his/her means. If the court deems that
the decision on confiscation of the means used for commission of the
administrative violation is illegal and deems that the lawsuit initiator's
claim for damages is well grounded (with full evidences supplied by the
complainant, with witnesses,'), the court shall decide to cancel such
administrative decision and at the same time decide on the compensation for
damage; if the lawsuit initiator cannot yet prove which parts of the means are
lost or damaged and which actual income amounts were lost, the court shall only
decide to cancel such administrative decision and leave the claim for damages
for settlement in another civil case according to common procedures, when so
requested by the involved parties.
6. Settlement of cases where
respondents amend or cancel administrative decisions or disciplinary decisions
on forced job severance which are complained about
Under the provisions of Article 3 (paragraph 4)
and Article 20 of the Ordinance, in the course of settlement of administrative
cases, respondents may amend or cancel the complained administrative decisions
or disciplinary decisions on forced job severance; therefore, in the course of
settlement of administrative cases, if respondents obtain decisions on amending
or cancelling the complained administrative decisions or disciplinary decisions
on forced job severance, the courts should notify such to the lawsuit
initiators and should distinguish:
a/ If the lawsuit initiators agree with such
amending or cancelling decisions and withdraw their lawsuits, the courts shall
base on Point b, Clause 1, Article 41 of the Ordinance to issue decision to
stop the settlement of the cases;
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7. The provisions of Article
11 of the Ordinance
7.1. On the concept of "works, other solid
architectural objects" defined in Clause 5, Article 11 of the Ordinance
a/ "Work" must be steady and
sustainable and the construction of which requires meticulousness, science,
techniques or art. For example: A monument, a system in service of aquaculture'
b/ "Other solid architectural objects"
means objects, besides dwelling houses, works, which are steadily and
sustainably built and have long-term use value. For example: water wells,
garages, churches, fence walls attached to dwelling houses, workshops,
storehouses'
c/ Regardless of the value of dwelling houses,
works or other solid architectural objects, only if there are complaints about
administrative decisions, administrative acts in the application of measures of
forced dismantlement, shall the courts open files for the cases according to common
procedures and only need to identify whether they are truly dwelling houses,
works or other solid architectural objects.
7.2. Regarding the provisions of Clause 9,
Article 11 of the Ordinance
Upon the implementation of the provisions of
Clause 9, Article 11 of the Ordinance, attention should be paid to the fact
that the courts shall only have jurisdiction to settle administrative cases
with regard to complaints about administrative decisions or administrative acts
in the requisition, compulsory purchase or confiscation of assets, which were
issued or taken after October 2, 1991 (when the Chairman of the Council of
Ministers, now the Prime Minister, issued Decision No. 297/CT).
7.3. On administrative decisions, administrative
acts in the domain of land management, specified in Clause 17, Article 11 of
the Ordinance
Administrative decisions, administrative acts in
the domain of land management, which the involved parties may initiate lawsuits
against so that the courts shall settle the administrative cases shall include
administrative decisions and administrative acts defined in Clauses 1 and 2,
Article 4 of the Ordinance in case of land allotment, land lease, land
recovery, land requisition, permission for land use purpose change;
compensation, support, ground clearance, resettlement; grant or withdrawal of
land use right certificates; extension of land use duration.
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7.4. On the provision of Clause 22, Article 11
of the Ordinance
a/ The provision of Clause 22, Article 11 of the
Ordinance should be construed as that besides the lawsuits defined in Clauses
from 1 thru 21, Article 11 of the Ordinance, if a legal document or a treaty to
which the Socialist Republic of Vietnam is a contracting party provides legal
actions for the courts to settle under the provisions of law on procedures for
settlement of administrative cases with regard to complaints about any
administrative decisions or acts, the lawsuits against such administrative
decisions or acts shall fall under the jurisdiction of the courts for
settlement according to common procedures.
b/ When lawsuits against administrative
decisions or acts do not fall into one of the cases defined in Clauses from 1
thru 21, Article 11 of the Ordinance, the courts need to check to see whether
there is any legal document or treaty to which the Socialist Republic of Vietnam
is a contracting party on this domain provides the right to initiate lawsuits
against such administrative decisions or administrative acts under the
provisions of the law on procedures for settlement of administrative cases. In
case there is a legal document or a treaty to which the Socialist Republic of
Vietnam is a contracting party, which so provides for, the courts shall base on
the provisions of Article 22, Article 11 of the Ordinance and the relevant
provision of such legal document or treaty to open the file and settle the
administrative cases according to common procedures; in cases where there is
not any legal document or any treaty which so provides for, the courts shall
base on Clause 1, Article 31 of the Ordinance to return the lawsuit petitions
to the lawsuit initiators.
8. Regarding the provision
of Point g, Clause 2, Article 12 of the Ordinance
The following cases falling under the
jurisdiction of district-level courts can be picked up by provincial-level
courts for settlement:
a/ Lawsuits against administrative decisions,
administrative acts of district-level People's Committees, presidents of
district-level People's Committees, which are complicated and involve many
subjects;
b/ Lawsuits against administrative decisions,
administrative acts of district-level People's Committees, presidents of
district-level People's Committees in cases where judges of such district-level
People's Committees fall into the cases where they have to refuse to conduct
legal proceedings or shall be replaced.
9. Regarding the provision
of Article 13 of the Ordinance
9.1. Determination of competence of courts and
persons competent to settle second-time complaints
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a/ If such administrative decision or
administrative act involves only one person who has initiated an administrative
case at a competent court and also complained with the person competent to
settle second-time complaints and he/she has not yet issued a decision on
settlement of the complaint, the settlement thereof shall fall under the
court's jurisdiction. The court shall open the file and settle the case
according to common procedures and at the same time notify the person competent
to settle second-time complaints thereof and request him/her to transfer the
entire dossiers on settlement of the complaint to the court (if any). If the
dossiers arrive at the time the person competent to settle second-time
complaints has issued a decision on settlement of the second-time complaint
before the court opens the files, the court shall base on Point c, Clause 1,
Article 31 of the Ordinance to return the lawsuit petition to the lawsuit
initiator. If the decision on settlement of the second-time complaint has been
issued after the court opens the files, the court shall base on Clause 3,
Article 41 of the Ordinance to issue a decision to stop settling the
administrative case and deletes the case from the file-opening book and return
the lawsuit petition together with documents, evidences to the lawsuit
initiator. Where the court returns the lawsuit petition or stops the settlement
of the case under the guidance at this Point a, if the lawsuit initiator
disagrees with the second-time complaint settlement decision and files a
lawsuit petition for an administrative case, the court shall consider to
proceed to open the files according to common procedures.
b/ If such administrative decision or
administrative act involves many persons, it is necessary to make the
distinction as follows:
b.1/ In cases where only one person initiates an
administrative case at a competent court and at the same time complains with
the person competent to settle second-time complaints while the rest do not
initiate an administrative case nor complain with the person competent to
settle second-time complaints, the settlement thereof shall fall under the
jurisdiction of the court and be effected like the case guided at Point a of
this Item.
b.2/ In cases where many persons initiate an
administrative cases at a competent court and at the same time complain with
the person competent to settle second-time complaints, the settlement thereof
shall fall under the competence of the person competent to settle second-time
complaints. If the court has not yet opened the files, it shall base on Point
c, Clause 1, Article 31 of the Ordinance to return the bill of complaint to the
complainant; if the court has opened the files, it shall delete the case from
the file-opening book and transfer the case files to the person competent to
settle second-time complaints and notify the lawsuit initiator thereof. In this
case, if past the time limit for settling second-time complaints under the
provisions of the law on complaints and denunciations a complaint has not yet
been settled or has been settled under a decision on settlement of the
second-time complaint but the complainant disagrees therewith and initiates an
administrative case, the court shall base on the provision of Point c, Clause
1, Article 13 of the Ordinance to open the files according to common
procedures, unless otherwise provided for by law.
b.3/ In cases where only one or a number of
persons inititate an administrative case at a competent court while another
person or several other persons complain with the person competent to settle
second-time complaints, the settlement thereof shall fall under the competence
of the person competent to settle second-time complaints and be carried out
like the case guided at Point b.2 of this Item.
9.2. Handling of cases where the court has
improperly settled an administrative case (as it is another case or falls under
the jurisdiction of another court)
Where a court has improperly settled an
administrative case (as it is another case or falls under the jurisdiction of
another court), on a case-by-case basis it shall be settled as follows:
a/ In the course of settling administrative
cases according to first-instance proceedings, if detecting that the settlement
of such cases falls under its jurisdiction, which are, however, not
administrative cases but other (civil, economic, labor) cases, the court shall
re-handle the cases according to common procedures prescribed by the procedural
law for the settlement of such cases and concurrently notify the involved
parties and the Procuracy of the same level thereof;
b/ In the course of settling administrative
cases according to first-instance proceedings, if detecting that the settlement
of such cases falls under the jurisdiction of another court, the court dealing
with such cases shall base on Clause 2, Article 13 of the Ordinance to delete
the cases from the file-opening books and transfer the case files to the
competent court and concurrently notify the involved parties and the Procuracy
of the same level thereof;
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d/ When conducting cassation or review of
administrative cases, if detecting that the cases fall under the circumstances
guided at Points a and b of this Item, the court of cassation or review shall
base on Clause 3, Article 72 of the Ordinance to cancel the judgments or
rulings which have taken legal effect due to serious violation of legal
proceedings and transfer the case files to the courts competent to conduct
first-instance adjudication for re-opening the first-instance trial of the
cases according to common procedures prescribed by procedural law for the
settlement of such cases.
10. Regarding the
provisions of Clause 1, Article 15 of the Ordinance
For the following cases, the first-instance
trial panel may be composed of two judges and three people's jurors:
a/ Lawsuits against administrative decisions,
administrative acts of provincial-level People's Committees or presidents of
provincial-level People's Committees, which are complicated and involve many
subjects;
b/ Lawsuits against decisions on settlement of
complaints about decisions on settlement of competition cases.
11. Regarding the
provisions of Article 16 of the Ordinance
11.1. The provision of Clause 1, Article 16 of
the Ordinance
a/ According to the provision of Point a, Clause
1, Article 16 of the Ordinance, the persons conducting legal proceedings must
refuse to conduct legal proceedings or be replaced if they are relatives of the
involved parties (including complainants, complained persons, persons with
relevant interests and obligations) in the administrative cases.
b/ Relatives of involved parties include:
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b.2/ Paternal grandparents, maternal
grandparents, siblings of the involved parties;
b.3/ Paternal uncles or aunts, maternal uncles
or aunts of the involved parties;
b.4/ Paternal or maternal grandchildren,
paternal or maternal nieces or nephews of the involved parties.
c/ There are clear grounds to believe that they
may not be impartial while performing tasks, meaning that besides the cases
provided for at Points from a to h, Clause 1, Article 16 of the Ordinance, in
other cases (such as in affectionate ties, in-law ties, working relations,
economic relations,') there are clear grounds to confirm that judges, people's
jurors, procurators or court clerks are not impartial while performing their
tasks. Example: People's jurors are sworn brothers of lawsuit initiators;
judges are in-law sons or daughters of persons with relevant interests and
obligations'
It can also be regarded as having grounds to
believe that they may be not impartial while performing their tasks if in the
same court session for adjudication of administrative cases, the procurators,
judges, people's jurors and court clerks are relatives to each other or if
judges, people's jurors, procurators, who are assigned to conduct appellate
adjudication of an administrative case, have relatives being judges, people's
jurors or procurators who have participated in the first-instance or appellate
adjudication of such cases.
11.2. Regarding the provisions of Clause 2,
Article 16 of the Ordinance
a/ Under the provisions of Point b, Clause 2,
Article 16 of the Ordinance, the judges and people's jurors must refuse to
conduct legal proceedings or be replaced if they are in the same trial panel
and relatives to each other. However, when there are in a trial panel two
persons who are relatives to each other, only one of them must refuse to
conduct the legal proceedings or be replaced. The replacement of whom before
the court session opens shall be decided by the court president, and at the
court session shall be decided by the trial panel. The identification of judges,
people's jurors in the same trial panel being relatives to each other shall be
conducted similarly under the guidance at Point b, Item 11.1 of this Section.
b/ Under the provisions of Point c, Clause 2,
Article 16 of the Ordinance, judges and people's jurors must refuse to conduct
legal proceedings or be replaced if they have participated in the
first-instance or appellate adjudication of such cases. "Having
participated in the first-instance or appellate adjudication' of such
cases" means having participated in settling the cases and issued the
first-instance or appellate judgments or decisions on termination of the cases.
12. Regarding the
provisions of Clause 2, Article 17 of the Ordinance
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The trial panel shall hear the replacement
requesters presenting their opinions on the requests for replacement of people
conducting legal proceedings.
The requests for replacement of people
conducting legal proceedings and the statements of the requesters, of the
people requested to be replaced must be fully recorded in the minutes of the
court session. The trial panel shall discuss them at the deliberation chamber
and base on the provisions of Article 16 of the Ordinance and the guidance in
Section 11 of this Resolution to decide by majority whether to replace the
people conducting legal proceedings.
In case of decision on the replacement of people
conducting legal proceedings, the decision shall clearly state the postponement
of the court session and request competent authorities to nominate another
person for the replacement within three days counting from the date of receipt
of the decision and the court session postponement duration.
12.2. The decision on replacement or
non-replacement of people conducting legal proceedings must be publicized by
the trial panel at the court session. The replacement decisions shall be
immediately sent to competent authorities for nomination of replacement;
concretely as follows:
a/ The decision on replacement of people
conducting legal proceeding, who are procurators shall be immediately sent to
the chairman of the Procuracy of the same level; if the replaced procurator is
the procuracy chairman, the decision shall be immediately sent to the chairman
of the immediate higher Procuracy;
b/ The decision on replacement of other legal
proceeding-conducting people shall be immediately sent to the courts
presidents; if the replaced legal proceeding-conducting persons are the court
presidents, it shall be immediately sent to the president of the immediate
higher court.
13. Regarding the
provisions of Clause 2, Article 30 of the Ordinance
13.1. Upon the implementation of Clause 2,
Article 30 of the Ordinance, attention should be paid to the cases where the
persons initiate the administrative cases due to their disagreement with the
decisions on settlement of first-time or second-time complaints, the
complainants only need to file their claims requesting the courts to settle the
administrative cases within the time limit prescribed in Clauses 2, 3 and 4,
Article 30 of the Ordinance, counting from the date of receiving the decisions
on settlement of first-time or second-time complaints regardless of the time of
issuance of such complaint settlement decisions.
13.2. Where after the issuance of a decision on
settlement of a first-time or second-time complaint, the complainant still
further lodges his/her complaint and the agency or person competent to settle
such first-time or second-time complaint issues another decision (or document)
settling the complaint, distinction should be made as follows:
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b/ Where the later complaint settlement decision
contains contents not different from the contents of the previous complaint
settlement decision or is only the reply on the settlement of the previous
complaint, the time limit for initiating a lawsuit shall be counted from the
date of receiving the previous complaint settlement decision.
14. Regarding the
provisions of Clause 5, Article 33 of the Ordinance
Application of temporary urgent measures defined
in Clause 5, Article 33 of the Ordinance shall comply with relevant provisions
of the Civil Procedure Code; therefore, when applying the temporary urgent
measures in this case, the courts should comply with the provisions of Clause 2
of Article 99 as well as Articles 100, 101, 117, 120, 123, 124, 125 and 126 of
the Civil Procedure Code and the guidance in Resolution No. 02/2005/ND-HDTP of
April 27, 2005 of the Judges' Council of the Supreme People's Court, guiding
the implementation of a number of provisions of Chapter VIII "Temporary
urgent measures" of the Civil Procedure Code.
15. Regarding the provisions
of Clauses 5 and 6 of Article 37 of the Ordinance
15.1. The preparation time limit for
first-instance trial of an administrative case shall be two months after the
file is opened. Only where the case is complicated or due to objective
obstacles can the trial preparation time limit be three months after the file
is opened.
a/ "A complicated case" means a case
involving many parties and is related to many domains; a case with
contradictory documents and/or evidences which require more time for
consultation with professional agencies or require complex technical expertise;
a case where involved parties are foreigners who are residing overseas or are
Vietnamese who are residing, studying or working overseas.
b/ "Objective obstacles" are those
created by objective circumstances such as natural disasters, enemy sabotages,
combat or combat service demands,' which make the courts unable to settle the
cases within the prescribed time limits.
Example: The people's court of district B,
province L in a mountainous region has decided to bring the case to trial,
setting the date for opening the court session. Yet, two days before the court
session opens, a flash flood happened. The office of the people's court of
district B was damaged. Due to the overcoming of the flash flood's
consequences, repairing its office, the people's court of district B cannot
open the court session within the prescribed time limit.
15.2. Within the time limit prescribed in Clause
5, Article 37 of the Ordinance and guided in this Item 15.1, the judges
assigned to preside over the court session shall issue one of the following
decisions:
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b/ To suspend the settlement of the case;
c/ To stop the settlement of the case.
15.3. In cases where a decision to bring the
case to trial was issued but the court session cannot be opened within the
twenty-day time limit, counting from the date of issuance of the decision to
bring the case to trial, for plausible reasons, such time limit shall be added
with ten days at most.
"Plausible reasons" means events which
occur objectively and unexpectedly such as the replacement or re-assignment of
the legal proceeding-conducting persons named in the decisions to bring the
cases to trial should have been made while the competent persons cannot yet
nominate other persons for replacement; the complicated cases which have been
adjudicated time and again by courts of different levels, hence, no more judges
for adjudicating such cases which must be transferred to higher courts for
adjudication or must await judges to be seconded from other courts, thus
hindering the courts from opening the court sessions as scheduled.
15.4. Where a decision on suspension of the
settlement of a case is issued, the trial preparation time limit shall end on
the date the suspension decision is issued. The trial preparation time limit
shall be re- counted from the date the court resumes the settlement of the case
when the reasons for suspension no longer exist.
16. Regarding the
provisions of Clause 9, Article 43 of the Ordinance
Where in a case an involved party cannot use
Vietnamese and the court has nominated an interpreter, if the interpreter is
absent from the court hearing and there is no one to replace, the trial panel
still proceeds with the trial if it is so requested by the involved party that
cannot use Vietnamese (regardless of whether the other party agrees or
disagrees therewith).
17. Regarding the
provisions of Clause 2, Article 49 of the Ordinance
17.1. A first-instance administrative judgment
must contain the principal contents defined in Clause 2, Article 49 of the
Ordinance and be presented similarly to the first-instance judgment form issued
together with Resolution No. 01/2005/ND-HDTP of March 31, 2005, of the Judges'
Council of the Supreme People's Court.
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a/ Replacing Section "The plaintiff"
(The complainant) with "the Procuracy instigating the administrative
case." Where a provincial-level People's Procuracy instigates an
administrative case, the name of such Procuracy shall be indicated (Example:
The Procuracy instigating the administrative case: The People's Procuracy of
province H.T). Where a district-level People's Procuracy instigates an
administrative case, the name of such district-level People's Procuracy under
which province or centrally-run city shall be indicated (example: The Procuracy
instigating the administrative case: The People's Procuracy of district G, city
H).
b/ Replacing Section "The respondent"
(the complained) with "The person having administrative decision (or
administrative act), complained about for the administrative case"
(example: The person having the administrative decision complained about for
the administrative case: The president of the People's Committee of ward B,
district H, city H).
17.2. Upon adjudication of administrative cases,
depending on each specific circumstance, the courts may issue one or a number
of the following decisions:
a/ Rejecting the claim of the complainant, if
such claim lacks legal grounds;
b/ Accepting part or whole of the complainant's
claim to declare cancellation of a part or whole of the illegal administrative
decision; forcing the state administrative agency or the competent person in a
state administrative agency to perform its or his/her official duty under the
provisions of law;
c/ Accepting part or whole of the complainant's
claim to declare that a number or all of the administrative acts are illegal;
forcing a state administrative agency or the competent person in a state
administrative agency to terminate the illegal administrative acts;
d/ Forcing a state administrative agency to
compensate for damage, restore the legitimate rights and interests of
individuals, agencies or organizations that are infringed upon due to the
illegal administrative decision or act;
e/ Accepting the complainant's claim to declare
cancellation of the illegal disciplinary decision on forced job severance;
forcing the head of the agency or organization to perform the official duty
under the provisions of law; foring the compensation for damage caused to
individuals by illegal disciplinary decisions and the restoration of their
legitimate rights and interests.
18. Stoppage of settlement
of administrative cases at the appellate stage
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19. Regarding the
provisions of Article 69 of the Ordinance
19.1. For courts' judgments or decisions on
administrative cases which had come into force before 00.00 hrs of June 1,
2006, the time limit for protest according to the cassation procedures shall be
six months counting from the date the judgments or decisions take legal effect;
the time limit for protest according to reopening procedures shall be one year
counting from the date the judgments or decisions take legal effect.
19.2. For courts' judgments or decisions on
administrative cases which had come into force before 00.00 hrs of June 1,
2006, the time limit for protest according to cassation procedures shall be one
year counting from the date the judgments or decisions take legal effect; the
time limit for protest according to reopening procedures shall be one year
counting from the date the persons competent to protest are aware of the
grounds for protest according to reopening procedures defined in Clause 2,
Article 67 of the Ordinance.
20. Settlement of lawsuits
against lists of voters for election of National Assembly deputies, lists of
voters for election of People's Council deputies, specified at Clause 18,
Article 11 of the Ordinance
The courts shall only open files for settlement
of cases regarding lawsuits against lists of voters for election of National
Assembly deputies or lists of voters for election of People's Council deputies
if they receive the lawsuits at least five days before the election date. When
settling these lawsuits, the courts should do as follows:
20.1. Immediately after receiving the lawsuits
against the lists of voters for election of National Assembly deputies or lists
of voters for election of People's Council deputies, the court president (or
court vice-president authorized by the court president) shall assign a judge to
immediately open a file for the case. Within two days after opening the file,
the assigned judge shall issue one of the following decisions:
a/ To bring the case to trial;
b/ To stop the case and return the lawsuit.
20.2. Immediately after issuing a decision to
bring the case to trial, the court shall promptly send such decision to the involved
parties and the Procuracy of the same level.
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21. Instigation of
administrative cases by Procuracies as provided for in Article 18 and Clause 6,
Article 30 of the Ordinance
21.1. The Procuracies may instigate
administrative cases against administrative decisions, administrative acts
relating to the legitimate rights and interests of minors or losing their civil
act capacity, if such persons have no one to initiate lawsuits. The decisions to
instigate administrative cases shall be signed and affixed with stamps by
Procuracy heads or deputy-heads authorized by Procuracy heads.
21.2. Where the Procuracies instigate
administrative cases, when receiving the instituting decisions, the courts
shall request the Procuraties to give documents and evidences showing that the
institution of legal proceedings by the Procuracies are well grounded and
lawful. At court sessions, the procurators shall present the decisions to
instigate the administrative cases, the grounds of the instigation and
participate in the court sessions according to common procedures prescribed for
the procurators.
21.3. Where Procuracies that have issued
decisions to instigate administrative cases withdraw the instigation decisions,
the courts shall base on Article 41 of the Ordinance to issue decision to stop
the settlement of the administrative cases and delete the cases from the file
books.
22. Notification on file
opening to Procuracies
22.1. Within five working days as from the date
of opening the file for a case according to the first-instance procedures, the
court shall notify in writing the Procuracy of the same level of its opening of
file for the administrative case. In cases where it opens the file for many
administrative cases, the court may notify in a document all cases it has
opened the files. The written notification must contain the principal contents
specified at Points a, b, c, d and e, Clause 2, Article 37 of the Ordinance.
22.2. Within five working days as from the date
of opening the file for a case according to appellate procedures, the court
shall notify in writing the Procuracy of the same level of its file opening for
the administrative case. In case it opens the file for many administrative
cases, the court may notify in a document all cases it has opened the files.
The written notification must contain the following principal contents:
a/ Day, month, year the written notification is
made;
b/ The name and address of the court making the
notification;
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d/ The number, day, month, year of the appealed
first-instance administrative judgment;
e/ Specific issues which the appellant requests
the court of appeal to settle.
23. Transfer of
administrative-case files to Procuracies
23.1. Where Procuracies participate in
first-instance court sessions under the provisions of Clause 1, Article 43 of
the Ordinance, the first-instance courts shall send the administrative-case
files together with the decisions to bring the cases to trial to the
Procuracies for immediate study after the courts issue decisions to bring the
cases to trial as provided for in Clause 7, Article 37 of the Ordinance. Upon
the expiration of the fifteen day- time limit, counting from the date the
Procuracies receive the case files, the first-instance courts shall request the
Procuracies to return the files to the courts for proceeding with the opening
of the court sessions for first-instance trial of the cases.
23.2. Where Procuracies participate in appellate
court sessions under the provisions of Clause 1, Article 63 of the Ordinance,
the court of appeal shall send the administrative-case files to the Procuracies
for study. Upon the expiration of the fifteen-day time limit, counting from the
date the Procuracies receive the case files, the court of appeal shall request
the Procuracies to return the case files to the courts for proceeding with the
appellate trial of the cases.
23.3. Where the president of the Supreme
People's Court or presidents of the provincial-level people's courts protest
for cassation or reopening trial, the courts which shall conduct the cassation
or reopening trial shall send the administrative-case files together with the
protest decisions to the Procuracies for study immediately after the court presidents
issue the protest decisions. Upon the expiration of the fifteen-day time limit
counting from the date the Procuracies receive the case files, the courts which
shall conduct the cassation or reopening trial shall request the Procuracies to
return the case files for proceeding with the opening of court sessions for
cassation or reopening trial.
23.4. Where Procuracies request the transfer of
administrative-case files for consideration of protest according to cassation
or reopening procedures, the transfer of administrative-case files shall comply
with the guidance in Item 2.3, Section 2, Part I of Joint Circular No.
03/2005/TTLT-VKSNDTC-TANDTC of September 1, 2005, of the Supreme People's
Procuracy and the Supreme People's Court, guiding the implementation of a
number of provisions of the Civil Procedure Code regarding the supervision of
the observance of law in civil procedures and the Procuracies' participation in
the settlement of civil cases.
23.5. Where Procuracies need to study
administrative-case files for consideration of protest according to appellate
procedures, the courts shall create conditions for the Procuracies to study the
case files at the courts.
24. Procurators'
participation in court hearings, meetings
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24.2. The Ordinance does not provide that
procurators of the Procuracies of the same level must participate in meetings
in the case defined in Article 61 of the Ordinance. However, for the case of
consideration of protests by Procuracies, the court shall notify the
Procuracies of the same level thereof and request the Procuracies to assign
procurators to participate in the meetings. Where the assigned procurators are
absent from the meetings for plausible reasons and the Procuracies notify their
absence, the courts shall postpone the meetings. Excluding this case, if
procurators are absent, the courts shall keep proceeding with the meetings
according to common procedures.
25. Competence to protest
according to appellate procedures
Under the provisions of Clause 1, Article 55 of
the Ordinance, the chairmen of the Procuracies of the same level and the
immediate superior level shall have the right to protest according to appellate
procedures with regard to the judgments or decisions on suspension or stoppage
of the settlement of the administrative cases settled by provincial/municipal
people's courts according to first-instance procedures, the chairmen or
deputy-chairmen of the Procuracies who perform prosecution and control
appellate trials shall be authorized by the chairman of the Supreme People's
Procuracy to protest according to appellate procedures against the judgments or
decisions on settlement of administrative cases by first-instance courts, which
have not yet taken legal effect.
26. Control of amendment
and/or supplementation of protests according to the provisions of Article 58 of
the Ordinance
26.1. The courts shall accept the following
amendments and supplements to protests by the protesting Procuracies:
a/ Where the protest time limit provided for in
Clause 2, Article 56 of the Ordinance has not yet expired, the protesting
Procuracies may amend and supplement their protests without any restriction on
the scope of initial protests.
b/ Where the protest time limit provided for in Clause
2, Article 56 of the Ordinance has expired, before starting the court hearings
or at the court hearings, the protesters may amend and supplement their
protests but shall not go beyond the scope of protest in the protest time
limit.
26.2 The amendment and supplementation of
protests before the opening of court hearings must be made in three copies and
send to the court of appeal according to the provisions of Clause 3, Article 58
of the Ordinance. The amendment and/or supplementation of protests at court
hearings shall be recorded in the minutes of the court sessions.
27. Implementation effect
of the Resolution
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This Resolution replaces Resolution No.
03/2003/ND-HDTP of April 18, 2003, of the Judges' Council of the Supreme
People's Court, guiding the implementation of a number of provisions of the
Ordinance on Procedures for Settlement of Administrative Cases.
27.2. For administrative cases the courts have
opened files but have not yet conducted first-instance trials, appellate
trials, cassation trials or reopening trials, the guidance in this Resolution
shall apply to the settlement thereof.
27.3. For court judgments or decisions which
have taken legal effect before this Resolution takes effect, the guidance in
this Resolution shall not apply to the protests according to cassation or
reopening procedures, except for the cases where there are other grounds for
protest.