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THE STANDING
COMMITTEE OF THE NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
09/2014/UBTVQH13
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Hanoi, January
20, 2014
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ORDINANCE
ON THE ORDER OF, AND PROCEDURES FOR, CONSIDERING AND
DECIDING ON THE APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES AT PEOPLE’S
COURTS (*)
Pursuant to the Constitution of the Socialist
Republic of Vietnam;
Pursuant to Law No.15/2012/QH13 on Handling of
Administrative Violations;
The National Assembly Standing Committee
promulgates the Ordinance on order of, and procedures for, considering and
deciding on the application of administrative-handling measures at People's
Courts,
Chapter
I
GENERAL
PROVISIONS
Article 1. Scope of regulation
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Article 2. Principles of considering and deciding on the application of
administrative-handling measures
1. The consideration of,
and decision on, application of administrative-handling measures must comply
with Clause 2 of Article 3 and Clause 2 of Article 5 of the Law on Handling of
Administrative Violations; the consideration of, and decision on, application
of administrative-handling measures to minors must also comply with Clauses 1,
2 and 4 of Article 134 of the Law on Handling of Administrative Violations.
2. The consideration of,
and decision on, application of administrative-handling measures shall be
implemented by a single judge.
3. When considering and
deciding on application of administrative-handling measures, judges are independent
and only abide by law.
4. To ensure the
impartiality of persons conducting sessions.
5. The spoken and written
language used in the consideration of, and decision on, application of
administrative-handling measures at courts is Vietnamese.
Persons subject to the
proposed application of administrative-handling measures (below referred to as
subject persons) or their lawful representatives, parents or guardians of
subject persons being minors may use the languages and scripts of their own
ethnicities but with interpreters.
6. Subject persons being
minors or their parents or guardians may defend themselves or invite lawyers or
other persons to defend their lawful rights and interests.
In case subject persons
being minors have no defenders of their lawful rights and interests, courts
shall request bar associations to assign lawyers ’ offices to nominate persons
to defend their lawful rights and interests.
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7. To ensure the subject
persons’ right to explain before courts and argue with agencies proposing the
application of administrative-handling measures.
8. To ensure the right to
two-tier review in the application of administrative-handling measures.
Article 3. Competence to consider and apply administrative-handling
measures
1. Courts competent to consider and decide on the
application of administrative-handing measures are district-level People’s
Courts of localities where the proposing agencies are headquartered.
2. Provincial-level People’s Courts are competent
to review the complained, petitioned or protested decisions of district-level
People’s Courts.
Article 4. Supervision of the consideration of, and decision on,
application of administrative-handling measures
1. People’s Procuracies
shall supervise the observance of law by courts in considering and deciding on
the application of administrative-handling measures, and exercise the right to
request, petition and protest, aiming to ensure the timely and lawful
settlement.
2. People’s Procuracies
shall participate in sessions; participate in the consideration of
postponement, exemption from, reduction or suspension of the serving of
decisions on application of administrative-handling measures in accordance with
this Ordinance.
3. After receiving the
dossier acceptance notices of the courts of the same level, the People’s
Procuracies may study the case files at the courts that have accepted such
cases for handling.
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1. Individuals, agencies
and organizations may not intervene in violation of law in the courts’
consideration of, and decision on, application of administrative-handling
measures.
2. Within the ambit of
their respective tasks and powers, individuals, agencies and organizations
shall coordinate with courts in considering and deciding on the application of
administrative-handling measures, when so requested by courts.
3. Legally effective
decisions of courts must be executed and respected by individuals, agencies and
organizations. The concerned individuals, agencies and organizations shall comply
with decisions of courts and take responsibility before law for their
compliance.
Article 6. Responsibility to manage the consideration of, and decision
on, application of administrative-handling measures
Within the ambit of its
functions, tasks and powers, the Supreme People’s Court shall manage the
consideration of, and decision on, application of administrative-handling
measures by courts, having the following tasks and powers:
1. To assume the prime
responsibility for, and coordinate in, proposing the promulgation of, and
submit to competent agencies for promulgation, legal documents on consideration
of, and decision on, application of administrative-handling measures;
2. To organize the making
of statistics on, to establish and manage the database on consideration of, and
decision on, application of administrative-handling measures;
3. To assume the prime
responsibility for, and coordinate in, guiding, training in and fostering
skills in the implementation of the law on consideration of, and decision on,
the application of administrative-handling measures;
4. To inspect the
observance of the law on handling of administrative violations in the
consideration of, and decision on, the application of administrative-handling
measures by courts;
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Chapter
II
ORDER OF,
PROCEDURES FOR, CONSIDERING AND DECIDING ON APPLICATION OF ADMINISTRATIVE-HANDLING
MEASURES
Article
7. Time limit
for consideration of, and decision on, application of administrative-handling
measures
Within 15 days after
accepting a written proposal of a competent agency, a court shall issue one of
the decisions prescribed at Point h, Clause 2, Article 20 of this Ordinance;
for complicated cases, this time limit can be prolonged, but must not exceed 30
days.
Article
8. Receipt and
acceptance for handling of dossiers proposing the application of
administrative-handling measures
1. Upon receipt of a
dossier sent by a competent agency, a court shall record in the
delivery-receipt register; where the dossier lacks documents prescribed in
Clause 2 of Article 100, Clause 2 of Article 102 or Clause+ 2 of Article 104 of
the Law on Handling of Administrative Violations, the court shall return the
dossier and clearly state the reason.
2. Within one working day
after the receipt of a dossier, the court shall process and assign a judge to
consider and settle it.
Article 9. Nomination of judges to consider and decide on the
application of administrative-handling measures
1. Within the time limit
prescribed in Clause 2, Article 8 of this Ordinance, the chief justice of the
court shall assign a judge to consider and decide on the application of
administrative-handling measures. For the consideration of, and decision on,
application of measure of sending the subject person to a reformatory, the
assigned judge must have necessary knowledge about psychology and educational
science and activities of preventing minors ’ violations of law.
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3. If the assigned judge
cannot continue performing his/her tasks or refuses the consideration and
decision, the chief justice of the court shall assign another judge to consider
and decide on the application of administrative-handling measures.
Article
10. Cases of refusal or change of judges
or clerks of sessions
1. They are relatives of
the subject persons.
2. They have already
considered and decided on the application of administrative- handling measures
in the same case.
3. They have already
settled complaints, petitions or protests against the decision on application
of administrative-handling measures in that same case.
4. There are clear
grounds to believe that they may not be impartial in the performance of their
tasks.
Article 11. Notification of case acceptance
1. Within 2 working days
after accepting a case, the court shall notify in writing the acceptance to the
proposing agency and the subject person or the lawful representative, parents
or guardian of the subject person who is a minor, and the Procuracy of the same
level.
2. A written notification
must contain the following principal contents:
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b/ The name of the court
that has accepted the dossier;
c/ The serial number and
date of acceptance of the dossier;
d/ The name of the
proposing agency;
dd/ The full name of the
subject person;
e/ The proposed
administrative-handling measure to be applied.
Article
12. Examination of dossiers of
proposal on the application of administrative- handling measures
1. The assigned judge
shall examine the dossier in terms of the following contents:
a/ Documents in the
proposal dossier, as prescribed in Clause 2 of Article 100, Clause 2 of Article
102 or Clause 2 of Article 104 of the Law on Handling of Administrative Violations;
b/ The statute of
limitations for application of administrative-handling measures as prescribed
in Clause 2, Article 6 of the Law on Handling of Administrative Violations;
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2. In case of necessity,
the judge may consult medical, psychological, educational and sociological
experts and representative of the commune-level People’s Committee of the
locality where the subject person resides in order to clarify his/her health,
psychological, living and educational conditions.
3. Within 3 working days
after being assigned, the judge shall base himself/herself on the result of
examination of the dossier to make one of the following decisions:
a/ To request
supplementation of documents and evidence;
b/ To adjourn or suspend
the consideration of, and decision on, application of administrative-handling
measures;
c/ To open a session to
consider and decide on the application of administrative- handling measures.
Article
13. Subject
persons’ right to provide documents and evidence
1. From the date of
receiving the acceptance notice to the time the court opens a session, the
subject person or the parents or guardian of the subject person who is a minor,
the defender of the lawful rights and interests of the subject person have the
right to provide documents and evidence for the court that has accepted the
cases.
2. The supply of
documents and evidence may be made at the court or by post.
Article 14. Request to supplement documents and evidence
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a/ Documents proving the
subject person’s violation, documents on the subject person’s personal status
and health conditions are unclear or contradictory and cannot be supplemented
or clarified at a session;
b/ Upon detection of a
serious violation of the order of, and procedures for, proposing the
consideration of, and decision on, the application of administrative-handling
measures.
2. The written request must
clearly state the documents and evidence to be supplemented and the reason for
the supplementation.
3. Within 2 working days
after receiving the request, the requested agencies shall send the supplemented
documents and evidence to the court.
4. Within 1 working day
after receiving the supplemented documents and evidence or after the expiration
of the time limit prescribed in Clause 3 of this Article, if the requested
agency fails to supplement the documents and evidence, the judge shall issue a
decision to open a session to consider and decide on the application of
administrative-handling measures.
Article
15. Adjournment
or suspension of the consideration of, and decision on, application of
administrative-handling measures
1. The judge shall decide
to adjourn the consideration of, and decision on, application of
administrative-handling measures when there is one of the following grounds:
a/ The statute of
limitations for application of administrative-handling measures expires;
b/ The subject person
dies;
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d/ The subject person
falls within the cases prescribed in Clause 5 of Article 92, Clause 2 of
Article 94 or Clause 2 of Article 96 of the Law on Handling of Administrative
Violations;
dd/ The proposing agency
withdraws its proposal;
e/ The subject person has
been handed down a criminal judgment or decision by the court, which has taken
legal effect, for the acts proposed for application of administrative- handling
measures;
g/ The subject person is
serving his/her prison term, is expected to serve his/her imprisonment or death
penalty under a legally effective judgment or decision of a court.
2. The judge shall issue
a decision to suspend the consideration of, and decision on, the application of
administrative-handling measures when there is one of the following grounds:
a/ The subject person’
act shows criminal signs and the court must transfer the dossier to the agency
competent to carry out the criminal procedures for consideration or the subject
person is being examined for penal liability for such act;
b/ There arise new
circumstances on the health or mental conditions of the subject person, which
prompt the proposing agency to solicit inspection;
c/ The subject person is
suffering a dangerous disease as certified by a hospital of the district or
higher level.
Article 16. Decisions to open sessions to consider and decide on
application of administrative-handling measures
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2. A session-opening
decision must contain the following principal contents:
a/ The full name, date of
birth, occupation and residence of the subject person;
b/ The parents or
guardian of the subject person who is a minor;
c/ The name of the
proposing agency;
d/ The proposed
administrative-handling measure to be applied;
dd/ The date and site of
opening the session;
e/ The full names of the
judge and clerk at the session;
g/ The full name of the
defender of the lawful rights and interests of the subject person;
h/ The full name of the
interpreter;
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3. At least 3 working
days before a session is opened, the session-opening decision must be sent to
the persons prescribed at Points a, b, c, g, h and i, Clause 2 of this Article
and the Procuracy of the same level.
Article
17. Participants in a session
1. Persons conducting a
session include the judge and clerk.
2. Participants in the
session include a representative of the proposing agency, the procurator, the
subject person or his/her lawful representative, or the parents or guardian of
the subject person who is a minor, and the defender of the lawful rights and
interests of the subject person.
3. If necessary, the
court may request a representative of the district-level Labor, War Invalids
and Social Affairs agency, the surveyor, the interpreter, medical, educational
and psychological specialists, a representative of the school where the subject
person being a minor studies, a representative of the commune-level People’s
Committee of the locality where the subject person resides or other persons to
participate in the session to present their opinions on related matters.
Article 18. Rights and obligations of session participants
1. To request change of
session-conducting persons.
2. To know, read, take
notes of, duplicate and see documents in the proposal dossier.
3. To provide documents
and evidence, to explain and argue at the session in accordance with this
Ordinance.
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5. To receive decisions
of the court.
6. To lodge complaints in
accordance with this Ordinance.
7. To be present at the
session at the request of the court.
8. To respect the court,
to abide by the regulations of sessions.
9. To abide by decisions
of the court which have taken legal effect.
10. Other rights and
obligations as prescribed by law.
Article
19. Participation
in sessions to consider and decide on the application of
administrative-handling measures
1. The participants in a
session prescribed in Clause 2, Article 17 of this Ordinance must be present at
the session; if the representative of the proposing agency or procurator is
absent, the session must be postponed.
2. If the subject person
or his/her lawful representative, the parents or guardian of the subject person
being a minor, or the defender of the lawful rights and interests of the
subject person is/are absent for plausible reasons, the court may postpone the
session; if they are absent without plausible reasons or request permission for
their absence, the court shall still conduct the session.
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4. The postponement
duration must not exceed 5 working days after the issuance of a postponement
notice. The court shall notify the postponement to the session participants
prescribed in Clause 1 of this Article and clearly state the postponement
reason and the time for re-opening the session.
For persons absent at the
session, the court shall notify them in writing.
Article 20. Order of, procedures for, conducting sessions to consider
and decide on application of administrative-handling measures
1. Before a session is
opened, the session clerk shall perform the following tasks:
a/ To announce the
internal regulations of the session;
b/ To check the presence
of persons requested by the court to attend the session; if anyone is absent,
to clarify the reason and report it to the judge for consideration of whether
to continue with, or postpone, the session.
2. The session procedures
are as follows:
a/ The judge announces to
open the session;
b/ The judge explains the
rights and obligations of the participants in the session. If there is a
request to change the judge, the judge shall consider it; if there are grounds,
he/she shall adjourn the session and report it to the chief justice of the
court for consideration and decision. If the judge must be changed while
another judge is not available for replacement, the session must be postponed.
The postponement of the session must comply with Clause 4, Article 19 of this
Ordinance;
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d/ The subject person or
his/her lawful representative, the parents or guardian of the subject person
being a minor presents their opinions on the contents of the proposal of the
proposing agency;
dd/ The participants
present their opinions on conditions for application of administrative-handling
measures, the personal status of the subject person; the aggravating and
extenuating circumstances; the educational forms and measures already applied;
propose or do not propose the application of administrative-handling measures;
the time for application of administrative-handling measures;
e/ The representative of
the proposing agency, the parents or guardian of the subject person being a
minor, the defender of the lawful rights and interests of the subject person
discuss the application of administrative-handling measures;
g/ The procurator
presents his/her opinion on the observance of law in the consideration of, and
decision on, application of administrative-handling measures;
h/ The judge announces
the decision to apply or not apply the administrative- handling measure or to
adjourn or suspend the consideration of, and decision on, the application of
administrative-handling measures in the cases prescribed in Article 15 of this
Ordinance.
Article 21. Minutes of sessions
The minutes of a session
to consider and decide on the application of administrative- handling measures
must clearly specify the date and location of the session; participants in the
session; session proceedings and development; decision of the judge.
After the conclusion of a
session, the judge shall examine the minutes and sign it together with the
clerk. The procurator, the subject person or his/her lawful representative, the
parents or guardian of the subject person being a minor, the defender of the
lawful rights and interests of the subject person and representative of the
proposing agency may read the minutes, request recording of modifications and
supplements in the minutes and sign for certification.
Article 22. Contents of decisions to apply or not to apply administrative-handling
measures and other decisions
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a/ Its serial number and
date of issuance;
b/ Name of the decision-issuing
court;
c/ Full names of the
judge and clerk of the session;
d/ Full name of the
procurator participating in the session;
dd/ Full name of the
representative of the proposing agency;
e/ Full name, birth date,
residence place, occupation and educational level of the subject person; names
and addresses of the representative and defender of the lawful rights and
interests of the subject person;
g/ The specific
administrative-handling measure proposed for application;
h/ The reason and grounds
for issuance of the decision;
i/ The decision on the
application or non-application of administrative-handling measures, the
termination or suspension of the consideration of, and decision on, the
application of administrative-handling measures.
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k/ Responsibilities of
individuals, agencies and organizations that execute the decision;
l/ The right to complaint
about the decision;
m/ Effect of the
decision;
n/ Decision recipients.
Article 23. Effect of court decisions
1. Decisions on
application or non-application of administrative-handling measures and
decisions on termination or suspension of application of
administrative-handling measures take effect after the time limit prescribed in
Article 31 of this Ordinance expires without complaints, petitions or protests.
2. Court decisions,
excluding the decisions prescribed in Clause 1 of this Article, take effect on
the date of their issuance
Article 24. Sending of court decisions
1. Within 2 working days
after the decision on application or non-application of administrative-handling
measures is announced, the court shall send the decision to the persons
prescribed in Article 107 of the Law on Handling of Administrative Violations
and the Procuracy of the same level.
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Article 25. Management of dossiers on consideration and application of
administrative- handling measures
Materials and documents
issued by courts in the process of considering and applying
administrative-handling measures must be compiled in dossiers, which are
numbered and archived in accordance with law.
Chapter
III
ORDER OF AND
PROCEDURES FOR, CONSIDERING AND DECIDING ON THE POSTPONEMENT OF, OR EXEMPTION
FROM SERVING, REDUCTION OF SERVING DURATION, SUSPENSION OF OR EXEMPTION FROM
SERVING OF THE REMAINING DURATION OF APPLICATION OF ADMINISTRATIVE-HANDLING
MEASURES
Article 26. Receipt and acceptance for handling of dossiers of proposal
on postponement of, or exemption from, the application of
administrative-handling measures
1. The sending of appeals
for postponement of, or exemption from, serving of decisions on application of
administrative-handling measures must comply with the law on handling of
administrative violations.
2. Within 2 working days
after receiving a dossier enclosed with the appeal, the court shall accept it
for handling and assign a judge to consider and settle it and concuưently
notify the proposing agency and the Procuracy of the same level thereof.
3. Within 3 working days
after being assigned, the judge shall consider and issue a decision; in case of
necessity, the proposing agency and the Procuracy of the same level shall give
their written opinions before the court issues a decision.
4. After examining the
dossier enclosed with the appeal for postponement ofj or exemption from,
serving of the decision on application of administrative-handling measures, the
judge shall issue one of the following decisions:
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b/ To reject the appeal.
5. The decision on
postponement of, or exemption from, serving of the decision on application of
administrative-handling measures must contain the following principal details:
a/ Serial number and date
of issuance;
b/ Name of the
decision-issuing court;
c/ Full name of the
judge;
d/ Full name of the
appellant;
dd/ Name of the proposing
agency;
e/ Grounds and reason for
issuance of the decision;
g/ Full name, birth date,
residence place, occupation and educational level of the person requesting the
postponement of, or exemption from, serving of the decision on application of
administrative-handling measures;
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i/ Responsibilities of
individuals, agencies and organizations that execute the decision;
k/ Effect of the
decision;
l/ Decision recipients.
6. Within 2 working days
after being issued, decisions on postponement of, or exemption from, serving of
administrative-handling measures take effect after the expiry of the complaint,
petition or protest time limit prescribed in Article 31 of this Ordinance and
must be sent to the persons prescribed in Clause 3, Article 111 of the Law on
Handling of Administrative Violations and the Procuracy of the same level.
Article 27. Reduction of the duration of, suspension of, or exemption
from, serving of the remaining duration of, application of
administrative-handling measures
1. If a person currently
serving an administrative-handling measure falls into a case prescribed in
Clauses 1 and 2, Article 112 of the Law on Handling of Administrative
Violations, he/she is entitled to reduction of the duration, suspension of, or
exemption from, serving of the remaining duration of, application of the
administrative-handling measure as decided by the court based on the proposal
of the director of the reformatory, compulsory education establishment, or
compulsory detoxication establishment.
2. For the case of
reducing the duration of serving an administrative-handling measure, the
subject person to be considered for reduction must have served half of the
duration decided by a court and he/she shall be considered for reduction only
once a year with the reduction time equal to at most a quarter of the duration
decided by the court.
3. Directors of
reformatories, compulsory education establishments or compulsory detoxication
establishments shall send written proposals to the courts of the localities
where the reformatories, compulsory education establishments or compulsory
detoxication establishments are located, together with documents proving that
the persons who are serving the administrative-handling measures, fall into one
of the cases prescribed in Clauses 1 and 2 of Article 112 of the Law on
Handling of Administrative Violations. Such documents include:
a/ Copy of the decision
on application of administrative-handling measures;
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c/ Written certification
of a hospital of the district or higher level of the sickness, for the case
where the person serving the administrative-handling measure suffers a serious
sickness or a dangerous disease;
d/ Written certification
of a hospital, for the case where the person serving the
administrative-handling measure is pregnant;
dd/ Written proposal of
the director of the reformatory, compulsory education establishment or
compulsory detoxication establishment.
Within 2 working days
after receiving a dossier of proposal on reduction of the duration of,
suspension of, or exemption from serving the remaining duration of, application
of administrative-handling measures, the court shall process the case and
assign a judge to consider and settle it, and concurrently notify the Procuracy
of the same level thereof.
Within 3 working days
after being assigned, the judge shall consider and issue a decision; if
necessary, the proposing agency and the Procuracy of the same level may give
their written opinions before the court issues a decision.
4. After examining the
dossier of proposal, the judge shall issue one of the following decisions:
a/ To approve the
proposal;
b/ To disapprove the proposal.
5. The decision on
reduction of the duration of, suspension of, or exemption from, serving of the
remaining duration of, application of administrative-handling measures must
contain the following principal details:
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b/ Name of the
decision-issuing court;
c/ Reason and grounds for
issuance of the decision;
d/ Full name, birth date,
residence place, occupation and educational level of the person serving the
administrative-handling measures;
dd/ Name of the proposing
agency;
e/ Contents of the
reduction of the duration of, suspension of, or exemption from, serving of the
remaining duration of, application of administrative-handling measures;
g/ Responsibilities of
agencies, organizations and individuals that execute the decision;
h/ The right to complaint
about the decision;
i/ Effect of the decision;
k/ Decision recipients.
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Article 28. Cancellation of decisions on postponement or suspension of
serving of decisions on application of administrative-handling measures
1. When the conditions
for postponement of serving of an administrative-handling measure no longer
exist or the person entitled to the postponement or suspension falls into one
of the cases prescribed in Clause 2, Article 113 of the Law on Handling of
Administrative Violations, the commune-level People’s Committee of the locality
where the person eligible for postponement or suspension of serving of an
administrative- handling measure shall send a written notification to the court
that has issued the decision.
2. Within 3 working days
after receiving a written notification of the commune-level People’s Committee,
the court shall consider and cancel the postponement or suspension decision and
compel the person who is enjoying the postponement or suspension to serve the
decision on application of administrative-handling measures.
3. The decision on
compulsory serving of the decision on application of administrative- handling
measures takes effect immediately and, within 2 working days after being
issued, shall be sent to persons concerned prescribed in Clause 3, Article 113
of the Law on Handling of Administrative Violations and the Procuracy of the
same level.
4. A decision on
compulsory serving of the decision on application of administrative- handling
measures must contain the following principal details:
a/ Serial number and date
of issuance of the decision;
b/ Name of the
decision-issuing court;
c/ Reasons and grounds for
issuance of the decision;
d/ Full name, birth date,
residence place, occupation and educational level of the person being subject
to the application of administrative-handling measures;
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e/ Responsibilities of
individuals, agencies and organizations that execute the decision;
g/ The right to complaint
about the decision;
h/ Effect of the
decision;
i/ Decision recipients.
Chapter
IV
COMPLAINTS,
PETITIONS AND PROTESTS; SETTLEMENT OF COMPLAINTS, PETITIONS AND PROTESTS IN THE
APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES
Section
1. COMPLAINTS, PETITIONS AND PROTESTS; SETTLEMENT OF COMPLAINTS, PETITIONS AND
PROTESTS AGAINST COURT DECISIONS IN THE APPLICATION OF ADMINISTRATIVE-HANDLING
MEASURES
Article
29. Court decisions which can be complained
about, petitioned or protested against
1. Decisions on
application of administrative-handling measures.
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3. Decisions on
termination of the consideration of, and decision on, application of
administrative-handling measures.
4. Decisions on
postponement of, or exemption from, serving of decisions on application of
administrative-handling measures.
5. Decisions on reduction
of the duration of, suspension of, or exemption from, serving of the remaining
duration of, application of administrative-handling measures.
Article
30. Persons
having the right to complaint about, petition or protest against court
decisions
1. Subject persons or
their lawful representatives, parents or guardians of subject persons being
minors have the right to complain about court decisions on application of
administrative-handling measures.
2. The proposing agencies
have the right to petition, the Procuracies of the same level have the power to
protest against court decisions on application of administrative-handling
measures when they have grounds to believe that such decisions are illegal.
Article
31. Time limits for complaint about,
petition or protest against, court decisions
1. The time limit for
subject persons or their lawful representatives, parents or guardians of
subject persons being minors to lodge their complaints is 3 working days after
the court announces the decision; if they are absent from the session, such
time limit is 3 working days after the receipt of the court’s decision.
If due to sickness, a
natural disaster, enemy sabotage or other objective hindrances, the
complainants cannot exercise their right to complaint within the above time
limit, the time where such hindrance exists must not be counted into the time
limit for complaint.
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Article 32. Procedures for lodging complaints about, petitions or
protests against, court decisions
1. A complainant shall
file a complaint clearly stating the reason and grounds for the complaint, with
the court that has considered and decided on the application of
administrative-handling measures.
2. The proposing agency
or the Procuracy of the same level shall file a written petition or protest,
clearly stating the reasons and grounds for the petition or protest, with the
court that has considered and decided on the application of administrative-handling
measures.
Article 33. Procedures for settlement of complaints about, petitions
and protests against, court decisions
1. Within 2 working days
after receiving the written complaint, petition or protest, the court that has
considered and decided on the application of administrative-handling measures
shall send it together with the dossier to its immediate higher-level court for
consideration and settlement; and concurrently notify the concerned individual
or agency and the Procuracy of the same level of the complaint, petition or
protest.
2. Within 2 working days
after receiving the written complaint, petition or protest enclosed with the
dossier, the immediate higher-level court shall process and assign a judge to
consider and settle it, and concurrently notify the complainant, the
petitioning agency and the Procuracy of the same level thereof.
3. Within 5 working days
after being assigned, the judge shall open a session to consider and settle. At
least 3 working days before the session opens, die judge shall notify in
writing the opening of the session to the persons prescribed in Clause 4 of
this Article.
4. A session to consider
and settle a complaint, petition or protest shall bỡ participated by the
complainant, his/her lawful representative and representatives of the proposing
agency and the Procuracy of the same level; if the representatives of the
proposing agency and the procurator are absent, the session must be postponed.
The postponement must comply with Clause 4, Article 19 of this Ordinance.
If the complainant is
absent for the first time with a plausible reason, the court shall postpone the
session; if he/she is absent without a plausible reason, or with a written
request for permission for absence, or is absent for the second time, the court
shall proceed with the session.
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5. If the complainant
withdraws his/her complaint, the proposing agency withdraws its petition or the
Procuracy withdraws its protest, the court shall stop the consideration of the
complaint, petition or protest; in this case, the complained, petitioned or
protested decision will take effect.
Article 34. Order of conducting sessions to consider and settle
complaints about, petitions or protests against, court decisions
1. Before a session
opens, the session clerk shall perform the following tasks:
a/ To announce the
regulations of the session;
b/ To check the presence
of persons summoned by the court; if someone is absent, he/she shall clarify
the reason therefor and report such to the judge for consideration of whether
to continue with or postpone the session.
2. The procedures for
conducting a session are as follows:
a/ The judge announces
the opening of the session;
b/ The judge explains the
rights and obligations of participants in the session. If there is a request
for change of the judge, the judge shall consider; if there are grounds, the
judge shall halt the session and report it to the chief justice of the court
for consideration and decision. If the judge must be changed while another
judge is not available for replacement, the session must be postponed. The
postponement must comply with Clause 4, Article 19 of this Ordinance.
c/ The complainant or
his/her lawful representative presents the contents of the complaint; the
representative of the proposing agency presents the contents of the petition or
the procurator presents the contents of the protest;
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dd/ The procurator presents
his/her opinions on the observance of law in the consideration of the
complaint, petition or protest;
e/ The judge announces
one of the decisions prescribed in Article 35 of this Ordinance.
Article 35. Judges’ jurisdiction to settle complaints, petitions and
protests
1. To reject complaints,
petitions or protests; to uphold decisions of district-level courts.
2. To accept part of
complaints, petitions or protests; to amend the district-level courts’
decisions regarding the time limit for application of administrative-handling
measures.
3. To cancel the
district- level courts’ illegal decisions on non-acceptance of application of
administrative-handling measures; to return the dossiers to the district-level
courts.
4. To cancel the
district-level courts’ decisions, terminate the consideration and application
of administrative-handling measures when there is one of the grounds prescribed
in Clause 1, Article 15 of this Ordinance.
5. To cancel the
district-level courts’ decisions on postponement of, or exemption from, serving
of decisions on application of administrative-handling measures and to compel
the serving of administrative-handling measures when there are no grounds
prescribed in Article 111 of the Law on Handling of Administrative Violations.
6. To cancel the
district-level courts’ decisions on non-acceptance of the postponement of, or
exemption from, serving of decisions on application of administrative-handling
measures, and accept the proposal to postpone or exempt the serving of
decisions on application of administrative-handling measures when there are no
grounds prescribed in Article 111 of the Law on Handling of Administrative
Violations.
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8. To cancel the
district-level courts’ decisions on non-acceptance of proposals on reduction of
the duration of, suspension of, or exemption from, serving of the remaining
duration of, application of administrative-handling measures and decisions on
reduction of the duration of, suspension of, or exemption from, serving of the
remaining duration of, application of administrative-handling measures when
there are no grounds prescribed in Article 112 of the Law on Handling of
Administrative Violations and Article 27 of this Ordinance.
9. To terminate the
settlement of complaints, petitions or protests when the complainants,
petitioning agencies or protesting procuracies withdraw the whole of their
complaints, petitions or protests; in this case, the district-level courts’ decisions
shall take effect.
Article 36. Contents and effect of decisions on settlement of
complaints, petitions or protests
1. A decision on
settlement of a complaint, petition or protest must contain the following
principal details:
a/ The serial number,
date of issuance of the decision;
b/ Name of the
decision-issuing court;
c/ Full names of the
judge and clerk of the session;
d/ Full name of the
procurator participating in the session;
dd/ Full name of the
complainant;
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g/ Contents of the
complaint, petition or protest;
h/ Reasons and grounds
for, and contents of, the settlement of the complaint, petition or protest;
i/ Effect of the
decision;
k/ Decision recipients.
2. Decisions on
settlement of complaints, petitions or protests are final and take effect
immediately.
Within 2 working days
after announcing the decision, the court shall send it to the persons
prescribed in Article 24 of this Ordinance and the court that has issued the
complained, petitioned or protested decision.
3. Decisions on
settlement of complaints, petitions or protests and the materials and documents
collected or issued by courts in the process of considering and settling the
complaints, petitions or protests shall be numbered and archived in accordance
with law.
Section
2. COMPLAINTS AND SETTLEMENT OF COMPLAINTS ABOUT ACTS OF COMPETENT PERSONS OF
COURTS IN THE APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES
Article 37. Acts that can be complained about in the consideration of,
and decision on, application of administrative-handling measures
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2. Complaints about other
acts not related to the consideration of, and decision on, application of
administrative-handling measures at courts shall be considered and settled in
accordance with law.
Article 38. Rights and obligations of complainants
1. A complainant has the
following rights:
a/ To lodge complaints on
his/her/its own or through a lawful representative;
b/ To lodge complaints at
any stage of the process of considering and deciding on application of
administrative-handling measures;
c/ To withdraw
his/her/its complaints at any stage of the process of complaint settlement;
d/ To receive written
replies on acceptance of complaints for settlement, to receive the complaint
settlement decisions;
dd/ To have his/her/its
lawful rights and interests, which have been infringed upon, restored, to be
compensated for damage in accordance with law.
2. A complainant has the
following obligations:
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b/ To present the matters
honestly, to provide information and documents to the complaint-settling
person; to be accountable before law for the contents and the information and
documents he/she/it has presented or provided;
c/ To abide by the
complaint settlement decisions which are legally effective.
Article 39. Rights and obligations of complained persons
1. A complained person
has the following rights:
a/ To produce evidence of
the legality of the complained act;
b/ To receive the
complaint settlement decision.
2. A complained person
has the following obligations:
a/ To explain the
complained act; to provide relevant information and documents when so requested
by competent persons;
b/ To abide by the
complaint settlement decision which is legally effective;
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Article 40. Time limit for lodging complaints
The time limit for
lodging a complaint is 3 working days after the complainant knows and believes
that an act of a competent person breaches the law.
If due to force majeure
events or objective obstacles, the complainant cannot exercise his/her right to
complaint within the time limit prescribed in this Article, the time during
which the force majeure event or objective obstacle exists must not be included
in the time limit for complaint.
Article 41. Complaint-settling competence and time limits
1. Complaints about acts
of judges or clerks shall be settled by chief justices of district-level courts
within 3 working days after the receipt of complaints; if disagreeing with the
settlement result, the complainant may lodge a complaint with the provincial-
level court. Within 5 working days after receiving the complaint, the chief
justice of the provincial-level court shall examine and settle it. The decision
of the chief justice of the provincial-level court is final.
Complaints about acts of
chief justices of district-level courts shall be settled by chief justices of
provincial-level courts within 5 working days after the receipt of complaints.
Decisions of the chief justices of provincial-level courts are final.
2. Complaints about acts
of chief justices, judges or clerks of provincial-level courts shall be settled
by chief justices of provincial-level courts. Within 3 working days after
receiving the complaints, chief justices of provincial-level courts shall
examine and settle them. Decisions of chief justices of provincial-level courts
are final.
3. Within 2 working days
after issuing a complaint settlement decision, the court shall send it to the
complainant and the Procuracy of the same level.
Chapter V
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Article 42. Effect
1. This Ordinance takes
effect on the date of its signing.
2. The provisions of this
Ordinance will apply to dossiers which have been compiled by competent agencies
for consideration of the postponement of, or exemption from, serving of
decisions on application of administrative-handling measures, the reduction of
the duration of, suspension of, or exemption from, serving the remaining
duration of, application of administrative-handling measures but have not yet
been settled by the effective date of this Ordinance.-
ON BEHALF OF
THE NATIONAL ASSEMBLY STANDING COMMITTEE
CHAIRMAN
Nguyen Sinh Hung
(*) Công Báo Nos 199-200
(10/02/2014)