phân định thẩm quyền giải quyết khiếu nại hành chính và thẩm quyền xét xử hành chính ở việt nam bản tóm tắt tiếng anh

MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY



NGUYEN MANH HUNG


DELIMITATION OF THE JURISDICTION TO DEAL WITH
ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF
COURTS TO DEAL WITH ADMINISTRATIVE CASES IN
VIETNAM
Specialized Major: Theory and history of state and law
Code: 62.38.01.01



SUMMARY OF DISSERTATION






HANOI - 2013

The dissertation is completed at:

HANOI LAW UNIVERSITY

Academic Supervisor: Prof. Dr. Pham Hong Thai


Reviewer 1: Prof. Dr. Hoang Kim Que
Reviewer 2: Ass. Prof. Dr. Luong Thanh Cuong
Reviewer 3: Dr. Duong Thanh Mai


Dissertation will be examined by the Council of Dissertation Evaluation at
Hanoi Law University at … date …/…/2014









Dissertation is available at:
1) National Library;
2) Library of Hanoi Law University.

1
INTRODUCTION
1. Theme Selection Reason

Since 01/07/1996, administrative dispute was not only solved by
administrative procedure but also by administrative court procedure
because Vietnam has wanted to ensure that the administrative dispute will
be solved more effectively, in order to protect fully the rights and legitimate
interests of citizens violated by individual/organization when exercising
executive power. However, these two channels were only conducted and
completed seperately. Therefore, legal regulations on delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam still reveal many issues.
The unclear delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
has caused many challenges that are common in reality such as: refusing or
shifting responsiblity for dealing with administrative dispute; imbalance in
the number of cases and in the quality handled by two channels.
These problems do not meet requirements of the principle: State power
is unity with reasonable delegation of power to, and co-ordinate and control
tightly among State bodies in exercising legislative, executive and judicial
rights in process of dealing with administrative disputes under the rule of
law state. These mechanisms also do not create favourable conditions for
protecting timely and fully the rights and legitimate interests of individual,
organization violated by authority when exercising executive power.
However, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in Vietnam has not yet studied in depth, comprehensively and systematically
as a dissertation theme. Therefore, dissertation theme: "Delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam" responds to the urgent
needs of Vietnam in both legal theory and practical aspect.
2
2. Subject and Scope of Research Theme

Subject of research theme includes:
- Legislative perspective, content and methods prescribed by current
related legal regulations in Vietnam in comparison with the other countries.
- Law enforcement of delimitation of jurisdiction in handling with
administrative complaint and lawsuit in Vietnam recently.
- People’s opinion and scientific assessments of effectiveness, scope
and the ways for determining the jurisdiction in handling administrative
complaint and lawsuit in Vietnam.
Research theme focuses mainly on study the aspects such as: concept
and forms of administrative dispute; concept of jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases in Vietnam; concepts, contents and grounds for
delimitation of the jurisdiction to deal with administrative complaints and
the jurisdiction of courts to deal with administrative cases; administrative
disputes which are solved under administrative procedure or administrative
court procedure according to current legal frameworks in Vietnam; receipt
of case files related to administrative complaint and lawsuit according to
current legal regulations in Vietnam.
3. Research objectives and study mission
Research aims at analysis both theory and practice of legislation and
law enforcement in delimiting the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in order to ensure that: individual/organization can exercise fully their rights
to select administrative dispute handling measure; good poits of each handling
measure will be ultilized whereas weak points will be minimized; jurisdiction
to deal with administrative dispute is coherent and consistent with jurisdiction
of court to deal with administrative case; effectiveness of mechanism for
dealing with administrative dispute in Vietnam will be enhanced.
In order to reach the above mentioned objectives, research includes the
following tasks:

3
- Clearly determining the scientific grounds for delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam.
- Evaluating the current practices in delimitation of the jurisdiction to
deal with administrative complaints and the jurisdiction of courts to deal with
administrative cases in Vietnam in both aspects of legislation and law enforcement.
- Proposing the opinions and solutions in both legislation and
enforcement aspects for ensuring that the delimitation of the jurisdiction to
deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases in Vietnam in coming years, meeting requirements
of rule of law state and global integration in Vietnam.
4. Research Methodology
Research has been carried out basing on the methodology of Marxism -
Leninism, Ho Chi Minh thought, and Vietnam Communist Party’s policy
for building rule of law state in open market economy and global
integration period.
In addition, there are some methodologies such as systems, analysis,
comparison, synthesis, statistics, specific historical study and results of
social surveys carried out in previous studies.
5. Research’s implication in science and practice aspects
Dissertation contributes to science in term of determining comprehensively
and systematically the jurisdiction in handling with administrative complaint
and lawsuit in Vietnam. The dissertation contributes:
- The dissertation introduces the concept of administrative redress which
includes administrative complaint and initiation of administrative cases.
- The dissertation introduces the concepts of jurisdiction to deal with
administrative complaints and jurisdiction of courts to deal with administrative
cases; points out the trend of diversifying channels for resolving administrative
disputes in Vietnam and around the world; and analyses good points and

weak points of each channel.
4
- The dissertation defines the concept of delimitation of the jurisdiction
to deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases; indicates the need as well as the contents and
grounds for delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases.
- The dissertation evaluates the status quo of the delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam in recent years with
regard to legal framewor and practical law application.
- The dissertation proposes viewpoints and solutions with regard to
legal framewor and practical law application for ensuring the delimitation of
the jurisdiction to deal with administrative complaints and the jurisdiction
of courts to deal with administrative cases in coming years, meeting
requirements of a rule of law state and global integration in Vietnam.
In addition, arguments, evaluations, conclusions and recommendations
of the dissertation are reliable and can be good references for researching,
teaching and improving the law and promoting the effectiveness of law
enforcement in handling with administrative redress and disputes in general
and the delimitation of the jurisdiction to deal with administrative complaints
and the jurisdiction of courts to deal with administrative cases in Vietnam
in particular.
CHAPTER 1
OVERVIEW OF STUDIES RELATED TO RESEACH TOPIC
Through assessment of previous studies related directly to the scope of
this research, the viewpoints of delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases in Vietnam were mentioned in various ways or even
conflicted with each other. Therefore, delimitation of the jurisdiction to

deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases in Vietnam has been a significant topic discussed
5
by many scholars. However, this topic has not yet studied comprehensively
and systematically. In addition, the recent changes in legislative views and
law enforcement for delimitation of jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in Vietnam.
On the other hand, the current changes in legislative views, legal
regulations and law enforcement related to jurisdiction to deal with
administrative complaint and jurisdiction of court to deal with administrative
lawsuit in Vietnam requires to study about delimitation of the jurisdiction to
deal with administrative complaints and the jurisdiction of courts to deal with
administrative cases in Vietnam as an essential science task during this period.
CHAPTER 2
THEORETICAL BASIS FOR DELIMITATION OF THE JURISDICTION
TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE
JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASE
2.1. Administrative redress and the diversity of jurisdiction to deal
with administrative dispute
2.1.1. Administrative redress
In order to ensure consistency of terms, "administrative redress"
reflects the common features of administrative complaint and administrative
case initiation, which includes:
Firstly, administrative redress refers to the right of self-defense and
self-determination of the object of public administration when executive
power was abused.
Secondly, objective of administrative redress refers to implementation
of executive power (mainly including administrative decision and action).
Thirdly, administrative redress can be carried out only in specific

conditions determined by laws.
Fourthly, administrative redress must be carried out in the forms
determined by laws.
6
Fifthly, administrative redress refers to dispute happened between
subject and object of public administration.
In brief, administrative redress is the right to self-defense and self-
determination of object of public administration through requesting in
accordance with the laws the competent state organ to handle with
administrative dispute in order to protect the right, legitimate interests that
are violated illegally or unreasonable in exercising of executive power.
Administrative redress includes two forms as follows:
- Administrative complaint is the right to self-defense and self-
determination of object in public administration through requesting based
on laws the competent state organ to handle with administrative dispute by
administrative procedure in order to protect the right, legitimate interests
that are violated illegally or unreasonable in exercising of executive power.
- Administrative case initiation is the right to self-defense and self-
determination of object in public administration through requesting the
court to handle with administrative dispute by administrative court
procedure in order to protect the right, legitimate interests that are violated
illegally or unreasonable in exercising of executive power.
2.1.2. Diversity of jurisdicion to deal with administrative dispute
2.1.2.1. Jurisdiction in handling with administrative complaint
Through assessment of the legal regulations and law enforcement on
jurisdiction to deal with administrative complaint, jurisdition to deal with
administrative complaint is carried out under jurisdition of public administration
subject when exercising executive power. This jurisdiction is determined
by administrative laws in order to solve the administrative complaint under
administrative procedure.

Hence, settlement of administrative complaint is a channel of solving
administrative dispute through exercising executive power, under the
motto: use executive power to control executive power. Therefore, the
disadvantages inherent in this channel is not ensuring the objectivity and
7
equality between complainant and complained; is not ensuring requirements
of "specialized" in process of dealing with administrative dispute. On
contrary, this channel also includes many advantages which should be
promoted such as: creating a quick and comprehensive mechanism for
handling with administrative dispute; strengthening relationship between
the subject and object of public administration; promoting the self-
management and self-responsibility of the national administration.
2.1.2.2. Jurisdiction to deal with administrative case
Through assessment of the legal regulations and law enforcement on
jurisdiction to deal with administrative case, jurisdiction to deal with
administrative case is carried out under the jurisdiction of court to adjudicate
administrative dispute under the administrative court procedure.
Therefore, administrative case adjudication is a channel of solving
administrative disputes through exercising the judicial power; under the
motto: use judicial power to control executive power. Hence, the disadvantages
inherent in this channel are: not ensuring the settlement of administrative
dispute quickly; not allowing review and adjudicate the reasonability of the
implementation of executive power, or the internal work of public
administration; not able to restore directly the rights and legitimate interests
of individual/organization which have been violated by exercising executive
power; not ensuring the "specialized" element in handling with administrative
dispute. However, the advantages of this channel must be utilized such as:
settlement of administrative dispute is independently; the equality between
the petitioner and petitioned person is ensured; subject’s responsibility in
exercising and dealing with administrative dispute will be enhanced.

2.1.2.3. Jurisdiction of administrative tribunals to deal with
administrative dispute
Administrative tribunals for dealing with administrative dispute is
defined as a combining channel of the implementation of executive and
judicial power. This tribunal is established on the basis of notion: national
8
public administration is combined of two components: public administration
and administrative tribunals. Therefore, the administrative tribunals not
only ensures the requirement of "specialized" to deal with administrative
disputes but also consists of many advantages of the two channels to deal
with administrative complaint and cases. However, the administrative tribunals
channel also raises some challenges such as:
Firstly, administrative tribunals may interfere deeply into the works
related to public management.
Secondly, administrative tribunals may face with difficulty in training
the their professional staffs who affect directly to the quality of settlement
of administrative dispute.
2.1.2.4. Jurisdiction of mediation organ to deal with administrative dispute
Settlement of administrative dispute by mediation organ refers to
channel which combines a half nature of state power activity and a half of
social activity. Therefore, administrative dispute settlement which under the
jurisdiction of mediation organ can overcome the common disadvantages of
the other channels to deal with administrative disputes under jurisdiction of
executive organs, courts and administrative tribunals. However, the
administrative dispute resolution of mediation organ also faces with the
most difficulty in training and maintaining arbitrators who have appropriate
professional skills, experiences, capacities, and reputation for proposing
reasonable and acceptable recommendations to the both complainant and
complained as well as the other competent organs such as court, executive
organs, and administrative tribunals.

Therefore, diversifying jurisdiction to handle with administrative disputes
is a common trend in countries around the world. However, Vietnam is not
able to set up channels to deal with administrative disputes by adminitrative
tribunals or mediation organs dute to the lack of capacity. Therefore,
dissertation only focuses on delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
9
administrative cases in Vietnam which combines two measures carried out
under administrative procedure and administrative court procedure.
2.2. The viewpoints of delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
In Vietnam recently, there is a viewpoint such as: on delimitation of
the jurisdiction to deal with administrative complaints and the jurisdiction
of courts to deal with administrative cases is mentioned in a case when a
dispute over jurisdiction between two channels: administrative complaint
settlement and administrative case adjudication. This dispute is happened
when individual/organization exercise the right to complaint cannot get
agreement in selecting the channel to deal with administrative dispute. This
viewpoint does not reflect fully the relationship between two channels:
administrative complaint settlement and administrative case adjudication
based on a holistic unified mechanism of administrative dispute resolution.
This dissertation defines the concept of delimitation of jurisdiction
based on the viewpoint of delimitation such as: delimitation is a clear
division and determination of jurisdiction as well as the analysis of
jurisdiction to handle with administrative complaint and jurisdiction of
court to adjudicate administrative case mentioned in section 2.1.2.1 and
2.1.2.2 of dissertation, on delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases defined in a broad concept is the division of administrative

dispute into groups corresponding to jurisdiction on delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases and to the specific determined
jurisdiction cases as prescribed by laws.
2.2.1. Content of delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
10
According to broad concept, on delimitation of the jurisdiction to deal
with administrative complaints and the jurisdiction of courts to deal with
administrative cases includes two elements: first, delimitation is a division
of administrative disputes into groups corresponding to jurisdiction on
delimitation of the jurisdiction to deal with administrative complaints and
the jurisdiction of courts to deal with administrative cases (it refers to
jurisdiction which defined by specific cases); second, delimitation is a
determination of jurisdiction in specific cases prescribed by laws (it refers
to case in which state organ recieves administrative dispute basing on the
competence prescribed by laws). These are two important elements which
interact each other in the process of handling with administrative dispute.
When exercising executive power, state organ holds power to provide
legal regulations independently for deviding administrative disputes into
groups corresponding to jurisdiction to deal with administrative complaint
or jurisdiction of court to deal administrative lawsuit. However, the
responsibility to implement these regulations belongs to executive organs
and judicial organs, firstly the responsibility of executive organ in receiving
administrative complaint and the responsibility of court in receiving
lawsuit. Therefore, the interacted relationship between two elements of
delimitation of jurisdiction as mentioned above indicates the unity of state
power in legislation, execution and judiciary in the field of administrative
dispute resolution. Consequently, receiving administrative complaint must

comply with legal regulations on scope of jurisdiction to deal with
administrative complaint; receiving administrative lawsuit must follow
legal regulations on scope of jurisdiction of court to deal with administrative
lawsuit; provisions which define the scope of administrative disputes
corresponding to jurisdiction of administrative complaint resolution and
jurisdiction of court to deal with cases must relevant to practice of
receiving these administrative disputes. On contrary, these provisions on
11
jurisdiction will not come to effect if the administrative disputes are not
received in practice.
2.2.2. Ground for on delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
Reasonable on delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases is
a ground not only for ensuring the effectiveness and coherence of administrative
dispute resolution mechanism but also for ensuring the right to complain or
initiate. It also contributes to ensure that the executive power is exercised
legally and reasonably. In order to reach this aim, delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases must be conducted on the basis of
the following grounds:
Firstly, the needs of administrative complaint and lawsuit.
Secondly, the specific features of jurisdiction to deal with administrative
complaint and lawsuit.
Thirdly, the organization and operation of the current national public
management and court system
Fourthly, the viewpoints of distribution of state functions in administrative
dispute resolution mechanism.
CHAPTER 3

CURRENT PRACTICE OF DELIMITATION OF THE JURISDICTION TO
DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION
OF COURTS TO DEAL WITH ADMINISTRATIVE CASE IN VIETNAM
3.1. Administrative disputes are under jurisdiction of administrative
complaint resolution and jurisdiction of court according to current legal
regulations in Vietnam
3.1.1. Disputes are under jurisdiction of administrative complaint
resolution
12
In Vietnam today, Law on Complaint, Decree No.75/2012/ NĐ-CP and the
other related legal documents do not provide directly the disputes which are
under jurisdiction of administrative complait resolution. This jurisdiction is
provided indirectly through regulations on the objectives of complaint and
the transfere of authority in handling with administrative complaint in
public management.
The scope of administrative complaint objectives and the transfere of
authority in handling with administrative complaint are determined by
various legal documents basing on the different contents, methods and
legislative views, such as:
Firstly, the laws define many types of administrative complaint
objectives; do not determine clearly the objectives of the first and the
second administrative complaint settlement; do not determine differences
between the objectives of the administrative complaint with the administrative
complaint settlement decision and the acts related to unsolving administrative
complaint. Therefore, individual/organization may face with difficulty in
exercise the right to complaint.
Secondly, transfer of authority in handling with administrative complaint
is inconsistent, incomplete and unreasonable. Therefore, it not only creates
a burden of work load in administrative dispute resolution but also limits the
rights to complain of individual/organization as a object of public management.

Thirdly, individual/organization is not allowed to complain about
decision or acts of Prime Minister in exercising executive power because
the laws do not provide the jurisdiction of Prime Minister to deal with
administrative complaint. This issue is a main shortcoming of decentralization
of jurisdiction to deal with administrative complaint second time.
3.1.2. Disputes are under administrative jurisdiction of court
Assessments of the current legal regulations in Vietnam related to scope of
jurisdiction to deal with administrative complaint and jurisdiction of court,
reveals that:
13
Firstly, disputes which are under jurisdiction to deal with administrative
complaint but not under jurisdiction of court include: decision in resolving
competition case; administrative decision, administrative act of organ in
charge of election; decision and act of civil enforcement of re-enforced
person and chief of re-enforced office; disciplinary decision of civil
servant; dismisal from office decision of civil servant (excluding the
dismisal from office decision of civil sevant who holds position from
Director General and equivalent or lower).
Secondly, disputes which are under jurisdiction of court but not
jurisdiction of administrative complaint resolution organs/competent person
include: complaint settlement decision on decision in resolving competition
case; administrative act of General State Audit; administrative decision of
State Audit and the competent persons in this organ; administrative decision,
administrative act of President Office, National Assembly Office, People’s
Procuracy, People’s Court and the competent persons in these organs;
administrative decision, administrative acts of organ (excluding decision on
handling with land dispute of People’s Committee).
Thirdly, some of disputes are not under jurisdiction of administrative
complaint resolution organ as well as the jurisdiction of court such as:
disputes related to administrative policy making decisions; legal normative

decisions; decisions of Government, Prime Minister, President
In general, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
as mentioned above has not yet based on the natures and features of these
channels; has not yet promoted the advantages or limited disadvantages of
each measures; has not yet ensured interacted relationship between two
channels as well as responded to the requirements of reasonable distribution
of state functions in administrative dispute resolution.
3.2. Acceptance of administrative dispute according to current legal
regulations in Vietnam
14
3.2.1. Acceptance of administrative complaint according to current legal
regulations in Vietnam
In Vietnam today, acceptance of administrative complaint is carried
out basing on the conditions which prescribed in different legal documents.
Through examining these regulations, conditions for receiving administrative
complaint are extracted from provisions on unaccepted complaint. Almost
unaccepted complaints are not provided reasonably and coherently with
other regulations on the objectives of administrative complaints, scope of
disputes are under jurisdiction of administrative complaint resolution
organ, conditions for administrative complaint, and form of administrative
complaint. In addition, laws do not define fully the unaccepted cases.
On the other hand, Annual report of Government, Government Inspectorate
and the results of social surveys of previous studies have revealed the status
of complaint, result of receiving administrative complaint, and result of
resolving administrative complaint as follows:
Firstly, although there are fluctuations from year to year but needs of
administrative complaint still very high; the number of administrative
complaint cases accepted annually still maintains at high level. The mains
reasons are: the laws do not provide fully and reasonably the cases which

are not accepted for settlement; regulations on jurisdiction to handle with
administrative complaint at two levels and the law enforcement on receiving
and handling with administrative complaint are not strict enough.
Secondly, the imbalance between the needs of administrative complaint
of the people and the capacity of public administration organs have affected
negatively to the psychological and legal awareness of both the complainant
and the competent person in process of administrative complaint resolution.
Some issues have happened increasingly such as: "wish for lucks" complaint,
illegal complaint, or complaint with aggressive, negative attitude; avoidance
of responsibility; and non-complied with laws of administrative complaint
settlement person.
15
3.2.2. Acceptance of administrative cases according to current legal
regulations in Vietnam
In Vietnam today, receipt of administrative case is mainly carried out
basing on regulations provided by Law on Administrative Court Procedure
and Resolution No.02/2011/NQ-HĐTP. Through examining these regulations,
it is seen that:
Firstly, the conditions for acceptance of the administrative case are
found indirectly through regulations on the cases of transfering lawsuit
petitions or returning lawsuit petitions.
Secondly, transfering of lawsuit petitions may cause problems such as:
pushing responsibility of the courts in accepting cases; accepting cases
become more complicated; and inconsistent with principle of ensuring the
right to make decision and right to self-determine of petitioners.
Thirdly, regulations on returning petitions are not clear, coherent, and
hardly to apply or even conflict with the other regulations on conditions,
form of petitions and jurisdiction in adjudicating administrative lawsuit.
Fourthly, law on administrative court procedure provides the cases of
returning petitions fully and tightly rather than the regulations on acceptance

of administrative complaints.
Fifthly, laws do not define clearly the cases of sharing information,
cooperation between the authority person who is responsible for handling
with administrative complaint and court in process of receiving, resolving, and
accepting administrative complaint. Consequently, pushing of responsibility in
receiving administrative dispute has happened between the authority person
who is responsible for handling with administrative complaint and the courts.
On the other hand, annual report of People’s Supreme Court, People’s
Supreme Procuracy and results of social surveys of previous studied on the
petition status, results of acceptance and settlement of administrative case
in Vietnam resently, have indicated that:
Firstly, the needs of petition and the number of accepted administrative
16
cases annually have tendency to increase but still limit in comparison with
the needs of complaint and the number of accepted administrative complaint
cases (in 2012, courts at all levels accepted under jurisdiction 6.177
administrative cases, increased 166% in comparison with 2011; however,
this number only accounts for 10,53% of total number of accepted
administrative complaints in the year 2012).
Secondly, petitioners often prepare carefully about information and
neccessary legal grounds for protecting their rights and legitimate interests.
[in 2009, percentage of returning petitions of administrative cases (13,46%)
was significant lower than percentage of unlawful administrative complaint
cases (56,93%).
Thirdly, result of administrative lawsuit settlement is better than the
results of administrative complaint resolution (in 2006, the number of
decisions of administrative complaint settlement which are proposed to
abolish, revise, additional accounted for 30,94%; the number of judgements
and court’s decisions for abolishing accounted for 6,2%; for revising
accouted for 4,7%; in which, the number of judgements and court’s

decisions of the first-trial which was abolished in order to re-adjudicate
accounted for 9,3%, and 7% was revised).
Fourthly, pushing of responsiblity between the competent persons/organs
that are responsible for handling with administrative complaint and the
court is still a common issue.
In brief, although Law on Complaint and Decree No.75/2012 NĐ-CP
were promulgated after the Law on Administrative Court Procedure and
Resolution No.02/2011/NQ-HĐTP but: the contents and methods of
promulgating the current legal regulations on: objectives of administrative
lawsuit, disputes on jurisdiction of administrative case adjudication; acceptance
of administrative cases are more advantages than the contents and methods
of promulgating the current legal regulations on: objectives of administrative
17
complaint; disputes on jurisdiction of administrative complaint settlement;
acceptance of administrative complaint.
Although the channel for handling with administrative complaint
established (23/11/1945) was sooner than the channel for adjudicating the
administrative lawsuit (01/07/1996) but the quality of initation, acceptance,
and adjudication of administrative cases is better than the quality of complaint,
acceptance, settlement of administrative complaint.
Although in Vietnam, the channel of administrative lawsuit adjudication
has more advantages than the channel of administrative complaint settlement
but the needs of initiation and the number of administrative lawsuit accepted
annually is so few in comparison with the needs of complaint and the
number of administrative complaint.
CHAPTER 4
VIEWS AND SOLUTIONS FOR DELIMITATION OF THE JURISDICTION TO
DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION
OF COURTS TO DEAL WITH ADMINISTRATIVE CASE IN VIETNAM
4.1. Views on delimitation of the jurisdiction to deal with administrative

complaints and the jurisdiction of courts to deal with administrative
case in Vietnam
Firstly, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in Vietnam needs to carry out based on the policy and viewpoints of
administrative dispute settlement mentioned by Communist Party’s resolutions
and documents.
Secondly, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
needs to implement based on comprehensive theoretical and practical grounds
in order to utilize fully advantages as well as to minize disadvantages of each
measure of resolving administrative complaint and adjudicating lawsuit.
18
Thirdly, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
needs to carry out based on the common viewpoints in order to ensure
administrative dispute settlement coherently, consistently, and to comply
with principle of distribution of state functions.
Fourthly, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
needs to respond to the needs of administrative complaint-petition in
society in accordance with current practice of national public administration
and capacity of court system in Vietnam.
Fifthly, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
needs to harmonize with the other measures of examination and supervision
of public administration.
Finally, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in Vietnam needs to carry out in parelell implementation of both measures

of administrative dispute settlement (administrative complaint resolution
and administrative lawsuit adjudication).
4.2. Solutions for delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
4.2.1. Concerning to aspect of legislation
Dissertation proposes to revise and add some contents and methods of
promulgation of legal regulations related to delimitation of the jurisdiction
to deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases, in specific as follows:
First, amending and adding regulations on right to complain and right
to initiate a case in order to ensure harmonization of objectives, subjective
19
and grounds for exercising the right to complain and right to initiate
unreasonable administrative decision, action.
Second, amending and adding regulations on concept of complainant-
petitioner in order to distinguish the subjects having the right to complain -
initiate with the subjects exercising this right.
Third, the forms of administrative complaint are determined consistently
with the forms of initiation of administrative lawsuit and ensuring the
implementation of direct complaint.
Fourth, the objectives of administrative complaint and objectives of
administrative lawsuit are determined consistently as follows:
- Adminstrative decision which is a written decision issued by a competent
organ, organization or individual prescribed by laws applies once to one or
several particular objects for a specific matter in the administrative
management activities.
- An administrative act which is expressed in action or inaction of a
state organ, organization or a competent person prescribed by laws relates
to the rights and legitimate interests of one or several particular individuals,

organizations in the administrative management activities.
Fifth, defining clearly objectives of administrative complaints with the
objectives of administrative complaint settlement; objectives of administrative
lawsuit with the objectives of administrative lawsuit adjudication.
Sixth, determining consistently regulations on administrative decisions,
administrative acts defined as state confidential scope in national defence,
public security, foreign affairs issued by National Assembly or Standing
Committee of National Assembly because they are not objectives of
administrative complaint-initiation.
Seventh, providing the internal administrative decisions and administrative
actions that are objectives of administrative complaint but not objectives of
administrative lawsuit.
Eighth, determining consistently the objectives of administrative complaint-
20
initiation which exclude decision of administrative complaint settlement and
administrative action of non-settlement of administrative complaint during
the time limit as prescribled by laws.
Ninth, defining the procedure of administrative complaint-initiation:
Individual, organization have a right to complain an administrative decision
and action to the competent person who is responsible for the first resolving
administrative complaint settlement or to petition this administrative decision
and action to the court when he/she does not agree with this decision or action.
In process of the first complaint settlement, complainant has a right to
withdraw his/her complaint in order to exercise the right to institute
administrative case at competent court if the statute of limitation for
initiation is still available.
In process of adjudicating administrative lawsuit under the first-
instance court procedure, petitioner has a right to withdraw his/her
petition in order to exercise the right to complain to competent person for
the first administrative complaint settlement, if the statute of limitation for

complaint is still available.
In the case of disagreement with decision of the first administrative
complaint settlement, or a complaint is not settled from the date of expiry of
the settlement time limit, individual, organization has right to institute
administrative case at competent court prescribed by Law on Administrative
Court Procedure; or has a right to complain to the competent person who
has responsibility for second administrative complaint settlement if that
decision/action is not under jurisdiction of court. Second complaint or
initiation of administrative case must be carried within 30 days since
individual, organization received the first decision of administrative
complaint settlement or since a complaint is not settled from the date of
expiry of the settlement of time limit prescribed by Law on Complaint.
Tenth, using qualitative methods in accordance with excluded methods
replace for methods of making a list as current in order to decentralize the
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competence in resolving administrative complaint and adjudicating
administrative lawsuit.
Eleventh, defining principles for determining jurisdicion of the first
administrative complaint settlement for all administrative disputes provided by
Law on Complaint and providing the other cases by specialized legal documents.
Twelfth, defining jurisdiction to deal with administrative complaint
second time of of the head of organ, organization at direct higher level of
the fisrt complaint settlement person if these disputes are not under
jurisdiction of court.
Thirteenth, decentralization of jurisdiction to deal with administrative
case bases on the following principles:
Court at district level has function of the first-instance court to
adjudicate the administrative cases if petitioner that is organ, organization
from district to lower level or a competent person of this organ, organization.
Court at provincial level has function of the first-instance court to

adjudicate administrative cases which are not under jurisdiction of the
district court.
Administrative cases related to petitioned person that is organ/
organization at local level or competent person of this organ/organization
will be under jurisdiction of court area where decision was issued or action
was conducted.
Administrative cases related to petitioned person that is organ/
organization or competent person of this organ/organization at central
level will be under jurisdiction of court of area where petitioner is
resident, works, or where headquarters is located. If petitioner does not
have specific living, working address or headquarters is located in territory
of Vietnam, the jurisdiction to deal with administrative cases belongs to the
court of area where decision was issued or action were conducted. In case
the place of issuing decision or conducting action is outside of Vietnam’s
territory, jurisdiction to handle with this case belongs to Court of Hanoi or
Hochiminh city.
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In the case, if the procedure conducting persons of district court and
provincial court have to refuse to participate in dealing with this case or
are changed, Chief Judge of the court which is responsable for dealing
with this case has to report to the Chief Judge of the higher court in order
to transfer the other procedure conducting persons of other courts to deal
with this case.
Fourteenth, providing comprehensively the cases which are not accepted
in accordance with regulations on conditions, forms of administrative
redress and decentralization of jurisdiction to handle with administrative dispute.
Fifteenth, providing specific and reasonable mechanism for exchanging
information, cooperating between competent person of administrative complaint
settlement and the courts in process of receiving, handling and accepting
administrative dispute.

4.2.2. Concerning to aspect of law enforcement
Dissertation proposes some necessary solutions for promoting law
enfocement related to delimitation of jurisdiction to deal with administrative
complaint and jurisdiction to deal with administrative cases, which includes:
First, enhancing the leading role of Communist Party in process of
dealing with administrative dispute.
Second, promoting capacity of state organs to deal with administrative
disputes.
Third, promoting co-operation among state agencies in process of
administrative dispute settlement.
Fourth, enhancing effectiveness of examination, supervision, detection
and settlement of violations in process of receiving, accepting, and handling
with administrative dispute.
Fifth, raising public legal awareness in administrative redress and
administrative dispute settlement.
Sixth, enhancing implementation of practical statistic on delimitation
of jurisdiction to deal with administrative complaint, and jurisdiction to
deal with administrative case.
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CONCLUSION
Administrative redress and administrative dispute settlement in
Vietnam has been a special topic mentioned by Party, State and many legal
scholars. Especially, delimitation of jurisdiction to deal with administrative
complaint and jurisdiction to deal with administrative case is always
defined as a key factor of administrative dispute mechanism and for
ensuring the right to complaint and initiate of individual, organization.
However, these two channels have been carried out and improved separately.
Although previous studies mentioned about administrative redress and
administrative dispute settlement but did not focus on delimitation of
jurisdiction to deal with administrative complaint and jurisdiction to deal

with administrative case in Vietnam. However, these studies illustrated
arguments, scientific viewpoints related to some contents of this topic.
Though studies did not provide comprehensive and consistent arguments,
viewpoints however these studies were the grounds for dissertation to
analyse, evaluate, and propose comprehensive and coherent recommendations
for delimitation of jurisdiction to deal with administrative complaint and
jurisdiction to deal with administrative case in Vietnam.
In order to respond fully to the needs of administrative redress,
Vietnam and many countries around the world have established and
implemented various mechanisms for dealing with administrative disputes.
When implementing two channels for dealing with administrative disputes,
delimitation of jurisdiction to deal with administrative complaint and
jurisdiction to deal with administrative case must be conducted comprehensively
by scientific methods in both aspects: legal regulations on scope of
administrative disputes and jurisdiction to deal with administrative dispute
or jurisdiction to deal with administrative case relatively; and delimitation
of jurisdiction to deal with administrative complaint or jurisdiction to
adjudicate the specific administrative disputes.