Luận văn thạc sĩ luật học: Improving the mechanism for settlement of administrative disputes: an important contribution to public administration reform in Vietnam today

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54 | Z SZ.

NAGOYA UNIVERSITY OF JAPANGRADUATE SHOOIL OF LAW

MASTER’S TITESIS

IMPROVING THE MECHANISM FOR SETTLEMENTOF ADMINISTRATIVE DISPUTES: AN IMPORTANTCONTRIBUTION TO PUBLIC ADMINISTRATION REFORM

IN VIETNAM TODAYTHƯƯIÊN. |

TRƯỜNG ĐẠI HỌC LUAT HA NỘI

PHÒNG ĐỌC

Thesis presented as partial fulfilliment of requirements for a Master’s Degree

SUBMITTED BY TRƯỜNG” OH LUAT HANOIPHAM HONG QUANG THƯYIỆN BIÁ0 VIEN

L SỐ OK (Có — |

Special Program for International Student — M2”

Student’s ID: 230003575

Acadeniuc Advisor: Prof. AIK YO MASANORI

Sub Advisors: Prot. KAMINO KENJE- Prof. ICHHIHASHI KATSUYANAGOYA, JUNE 2002

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The foundation of the Administrative Division Courts in Vietnam in Juiy' 1996 has

ifproved the mechanism for Settlement of Administrative Disputes (SAD)! , social

dienocratization, and the building of “Nha nuoc Phap quyen”? addressed by Public

A\cministration Reform (PAR)Ì commenced from the beginning of 1990s. However, the

em-ountercd problems of the existing mechanism for SAD featured by the appearance ofAvcministrative Division Courts in the past six years has once again triggered the legal debatesom looking for the best resolution for its existence. This result has surely influenced thestuccess or faiure of the overall PAR process. Such important implications, the chosen topic

alims to contribute a discussion to this hot-issue im Vietnam.

[hs paper ts fscuscd bn the low-effect of the existing Administrative Division Court model,

(ica supplics an overall view of the whole process for improving the mechanism for SAD and

the PAR in Vietnam, while simultaneously confirming the mutual relation between them.Druwing the study, the following issucs were addressed:

Firstly, this paper confirms the important contribution for the improvement of the

mcechanism for SAD toward the overall process of PAR in Vietnam, since the former aimed to

cay oul the main contents as well as the objective addressed by the latter lt proved the

" Ttereimaler referred to as SAD

<small>Ths term means “Recht staat or Leeal State” that ts common use in the Party's Resolutions and State's lawdoccuments aller performing the “DoiMoac” palicy in L986</small>

<small>Hlremafter relerred to as PAR</small>

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indispensable necd Tor the establishment of the Administrative Division Court that re-markedthe development of the “judicial review of administrative actions” previously unknown in

Victnam, and also made the Vietnamese legal system catch up with the development of legal

science in the rest of the world.

Secondly, this paper focuses on the encountered problems of the existing mechanismthat resulted in the development of legal debates among Vietnamese lawyers concerning themaintenance of the existing model or the change it to a new model known as “an independentadministrative court” like the model of Consei d'/tal in France, This paper thus presents this

discussion and affirms that the improvement of the mechanism for SAD is a “continuous

learning process’, arming to meet the overall requirement of the PAR.

Finally, based on the situation of SAD in Vietnam, the latest amended Constitution of

1992 as well as the development of the international co-operation in the present content, this

paper supports the maintenance of the existing model and proposes some directions for its

betler operation in the future. Some experiences on SAD in Japan were also added tocontribute such an opinion.

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Do cố)

(PAR) (Zh CEREAL TUS “Nha nuoc Pháp quyen’ OER EL, Lal, 3š 6 HERCASU YC FT Ee ANAT OD HZ ENS CHF KSI 24L SAD OL MORE FO 40 =ADLT SLD, FEO, AD = ALO ERO TY [Cte by FLU WER ER VD 7 OTE AYheim 25) È HOOLTE, LOD aR RROD AE Am eh, TTC OO EB KOKI, MPAA IC MESES¿1 0 10-4 OCR, MOAT Eh, 032419 1 2t Rel cds bOI cI SH

1028 < BART 4# AIGEL TWD,

SAD DPL MOY AD) = Ady BO PAR 09101123188 PAS TPZ He 7. TAS EA LED

JOE A PER AMEE44103745, 1260314 CISUYC, LA POON MIA UK Sd CUD,

qm, COO MI aT. ARP IC ASIS S SAD OLE MO AY = 260304 jÊ7Ý PAR 018tị EAE *ƑFU C eT ARP BS 2) te EEA AMER PH SAD (NK) AW et ALVA PAR

<small>SU ROS bP 2408112 fit Ee LR OD PC 33L} DR 20) ABEL IBY OA ME DEMOELLE</small>

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PACS ACT ORAL DS As 8Ị KR Cd oT LAE L TE,

TNS, LOR XE, EFF HF ILM TD OM, MUL, FI AOD RE RFT (Conseild`EtaD EF LO LIAR MELE TT BRAN PT J 2L C#0ÈsätS 3L v MEF IL AOR {TID

ZIRE ME tly CCW, COM, LO di SEL, OD ie in 2H TPL WON, SAD 02?

YD 427) ~ 22401013” RF TS Ze EE M1” Edo), PAR 0) PR {E0)385R( CIE. LING See

“SLM TS,

NERA. API 21 E352 SAD OAK. T10) 1992 SAREE, A Ô TM fE0) CIS

ES tS Z HIẾN bth 710) 3š lệ (Ẻ EDUC, LOM SCL, ELE OD-E FLO TF EF SOBEL EOCANCA DH LOL MONO MOUS OA OTT TERN, HE. BOOZE Mr tillo

MIS ASIII SAD LMP áv*<~320)## 23/122 Cod ÚV V5,

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IMPROVING THE MECHANISM FOR SETTLEMENT OF ADMINISTRATIVEDISPUTES: AN IMPORTANT CONTRIBUTION TO PUBLIC ADMINISTRATION

REFORM IN VIETNAM TODAY

TABLE OF CONTENTS Page

INTRODUCTION |

CHAPTER 1; PUBLIC ADMINISTRATION REFORM (PAR) IN VIETNAM AND 8

ITS RELATION TO THE OVERALL REQUIREMENT FOR THEIMPROVEMENT OF THE MECHANISM FOR SE ETLEMENT OF

<small>ADMINISTRATIVE DISPUTES (SAD)</small>

I, Overview 8

|. Overview of the PAR process in Vietnam 8

2. Overview of the mechanism for SAD in Vietnam 12

HH, Why the improvement of the mechanism for SAD is an important 17contribution to PAR in Vietnam?

| PAR seen as a spring-board for the improvement of the mechanism for SAD 172 Improvement of the mechanism for SAD considered as an effective measure to — 20

carry out the main contents of PAR

3. Improvement of the mechanism for SAD aims to carry oul the main objectives of 23

PAR to build up successfully “Nha nuoc Pháp quycn (egal State) in Vietnam

4. Improvement of the mechanism for SAD also auns to catch up with the — 27

development of legal science of the world and region in the field of SAD

5. Improvement of the mechanism for SAD affirms the birth and development of the 32

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judicial review of administrative action in Vietnam

T11. Conclusion

<small>CHAPTER TE: PROCESS OF THE IMPROVEMENT OF TILE MECHANISM</small>

<small>FOR SADIN VIETNAM - INSTORY AND OUTLINE OF VIETNAM ‘S</small>

<small>EXPERIENCE IN SAD </small>

-I. SAD prior to July 1996 and the need for the establishment of theAdministrative Division Court

|. Legal basis applied to SAD

2. The main characteristic of the previous mechanism for SADae) The shortcomings of mechanism for SAD prior to July 1996

3.1 Lack of an independent judicial organ to review impartially and objectively the

complained administrative decisions or actions

3.2 The defect in the procedures of SAD and tmplementation of review decisions33 Imperfection of legal regulations applied to SAD

3.4 The linited legal capacity of state officials and the malpractices in SAD

3.5 The limitation of legal knowledge among people and the non-support toward

stale officials

3.6 Situation of SAD in Vietnam prior to July 1996 and the remarkable problems

4. The establishment of the Administrative Division Courts (July, 1“ 1996)

4.1 The indispensable need for the establishment of Administrative Division Courts

4.2 Process of setting up the model as Administrative Division within people's court

131 The model of administrative court as an independent system formed by3738

38394141

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National Assembly, separating tt from the administrative organs, in parallel with thepeople’s court system

4.2.2 The model of administrative court as an independent system formed and

subordinated to Prime Minister, but separated from Executive organs

4.2.3 The choice of the model of Administrative Division within People’s Court

system (Administrative Divisions Court) and its formation since July, 1 1996

4.3 Conclusion

II. SAD in Vietnam since the creation of the Administrative Division Courtsand the need for improvement of the existing mechanism for SAD

1. SAD by judicial review tin the Administrative Division Courts under the

Ordinance on Settlement of Administrative Cases (OSAC) from July, 1 1996 andits amendment enacted on December 25" 1998 to date

1.1 What ts an administrative case?

1.2 Requirement for inating administrative cases

[.3 The objects of Settlement of Administrative Cases (SAC)[.4 Administrative Division Courts competence on SAC

[.Š Some remarkable features in the proceedings of SAC

1.6 Judgments and execution of judgments of administrative cases

2. SAD by administrative review conducted by the system of the administrativeagencies under the OSCCD of 1991 and the LOCD of 1998

2.1 The contradiction with the existing OSAC of the OSCDC of 1991 resulted in the

birth of the LOCD

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2.2 SAL by the competent administrative agencies under the LOCD

= 2 Problems encountered in the existing mechanism for SAD<small>`</small>

Sơ) t2| The problems remarned in the definition of competence tn SAC

3.2.2 SAD in the pre-litigation period by administrative agencies

wn 2 3 Nonfeasance of the competent administrative agencies and non-effectiveenforcement of court *s remedies

3.2.4 Some problems encountered in SAC proceedings at Administrative Division

42.5 The imperfect and contradiction in legal regulations involved in SAD

3.2.6 Quality of judges, people’s assessors and procurators in participation of SAC

3.3 The discussion to look fora better model for SAD in the present time

3.3.1 A criticism of the existing model for SAD

3.3.2 Some discussions to look for a better model for SAD3.4 Conclusion

CHAPTER Th: THE DIRECTION FOR IMPROVING THE EXISTING

MECITIANISM FOR SAD AND ITS IMPLICATION TOWARD THE

OVERALL PROCESS OF PAR

113116[l6117[21123

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1 The direction for improving the existing mechanism for SAD|. The improvement of law document system

2. The improvement of the existing model for SAD

3. The improvement of public service system

4. The improvement of administrative review of administrative action and the

responsibility of administrative agencies5. The role of administrative judges

6. The role of procurators and pcople”s assessors

7. The role of political social organizations and all individuals

8. The development of international co-operation and foreign legal aidI. Learning experiences of SAD in Japan

|. Overview

2. Some experiences of SAD m Japan.

HT, Implication of improving the mechanism for SAD toward the overall

process of PAR1 Theoretical aspect

160161163

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I. TOPIC AND RATIONALE

Public Admimrstration Reform (hereinafter referred to as PAR) is a “common phenomenon” in

modern societies and been conducted by almost all governments throughout the world, aiming tocatch up the changes of economic, political, social circumstances at different levels of each

country, Vietnam, since the implementation of “Doi Moi” policy in 1986, along with the vigorous

economic reform, has taken in a parallel range of reforms such as the legislative, judictary and

public administration reforms. The 8” Plenum of the 7" Party Congress’ constituted a turning

point. in building and improving PAR m Vietnam. Though public administration has been

reformed to a certain extent, it continues to face with many obstacles to its progress and failed to

mect the expectation of the leadership of the country as well as the people. The main objectivesof PAR are to setup a strong and effective state administration, build up successfully the “Nha

nuoc Phap quyen"Tïn Vietnam in which the superiority of the law is absolutely respected, and

protecting the legal democratic rights of citizens.

In the time being, the strong development of the welfare state, the information society as well as

the democratization process have led to changes in the relationship between public authorities

and individuals that make all governments in the world, including Vietnam, have to pay muchnore attention to settling peoples claims for damages caused by administration. As a result, the

Setlement of Administrative Disputes (hereinafter referred to as SAD) im Vietnam nowadays 1s

"Nils Bronsson and Johan P Olsen , The reforming organization , | (1993 )

* “This term means “ Renovation ” that has been popularly used in Vietnam since the 6" Communist Party Congress

The term of the 7!” Party Congress ts from 1991 to 1996 The 8“ Plenum of the 7” Party Congress 1s in 1995.

` Fhs leval term means * Recht staat” or ^ Legal State ` that is originated from Germany fegal system, hereinafter

<small>referred to Nha nuoc phap quyen ~</small>

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revarded as an important contribution to the PAR process because it also aims to carry out one ofthe main objectives of PAR that allows people, apart from those making complaints to

administrative agencies or State Inspectorate system featured by the mechanism for SAD prior

101996, to initiate administrative cases to a competent court to protect themselves from the

infringement of administrative power. Let’s give an example to illustrate the nature of the

Imagine that citizen A was granted the certificate of land use rights by a competent

administrative agency. tle was using tt legally for residence and agricultural purposes for a longtime, and then suddenly the certificate was withdrawn for the land use rights by the sameadministrative agency that in turn surely caused him much damage for benefits that he would

have derived from the land’. Is it just and fair enough if such an administrative decision was

made illegally, not for a public purpose but for a personal purpose? Or even in cases of public

purpose, what level of compensation for his labor and living 1s reasonable?

[hús, the exatple mentioned above is not a civil matter concerning the civil rights between two

private parties who are equal in legal status, but an administrative dispute arising between aprivate person and state power. Public Administration will become effective if it creates a strongmechanism for SAD that aims to protect the infringed people from malpractices by the

administration like such above cases on the one hand, and to recover the mistakes for the better

operation on the other. Vietnamese administrative law, since the establishment of the

Adnunistrative Diviston Court in July 1996 has allowed citizens to initiate the administrative

lawsuit to a competent court that re-marks the birth and development of the theory “judicial

See the 1“ trial iudgmentof DAKLAK provincial Administrative Division Court No OL on January, 6" 1997 in

<small>which the citizen Nguyen Van Doan tnrtiated the administrative case toward People ‘s Committee of Lal lfteo district</small>

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review of administrative action” in Vietnam. The foundation of the Administrative Division

Court since July 1996 has been an encouraging fruit of PAR as well as the judiciary reform

launched from the beginning of 1990s. A number of administrative cases were resolved by courtsand some of them were won by the infringed that to some an extent affirms the tmportant

contribution toward protecting people’s democratic rights as well as setting up the “Nha nuocPlhiap quyen” as addressed tn the objectives of PAR. However, although having been in existence

for over five years, the mechanism for SAD has revealed many defects that failed to fulfill theexpectation of the people as well as lawmakers, resulting in doubt and disappointment. Hence, along with the process of a step-by-step implementation of the main objectives of PAR, the

invprovement of the mechanism for SAD is also a “continuous learning process” in which tl is not

easy to make simplistic judgments tn terms of success or failure without deeply understanding

what has caused the defects. There has still been in discussion of either maintaining the model asAcdimimistrative Division Court with some appropriate changes in the both legal and practical

asipcels of looking fora better model for SAD.

As the important implication above mentioned, the topic “Improving the mechanism for SAD:Am unportant contribution to PAR in Vietnam today” was chosen for a Master's graduation

thesis. This paper, by looking back the history of Vietnam’s experience in SAD, analyzes theclose relation between the improvement of the mechanism for SAD and PAR in Vietnam. Inaddition, this paper ts finding problems encountered in the existing mechanism, confirming the

need for further mmprovement of the mechanism for SAD, and piving proposals for new

tye scope of the chosen topic may appear broad, so that three more specific questions according10 the content of cach chapter (three chapters included) will be addressed as follows:

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In Chapter I, the first question that shall be directly answered 1s why the improvement ofmechanism for SAD is regarded as an tmportant contribution to PAR in present Vietnam?Since the purpose of this chapter is to make clear the mutual relation between the process of PARin Vietnam toward the overall requirement for improving the mechanism for SAD, it firstly gives

an overview of all the mechanisms. Then, a direct analyze of this mutual relation through five

main points 1S presented and emphasizes that the improvement of the existing mechanism for

SAD 1s aimed to carry out the main contents as well as the objectives addressed by PAR, and

needs to speeding up further to meet the requirement of the present, strong renovation process.[he main theoretical issues as well as the use of legal terms covering through the content of the

thesis such as “judicial review of administrative action”, “Nha nuoc Phap quyen”(Legal State)

“Phap che (Prdnciple of Legality) are also intentionally presented and analyzed in this chapter.Since the development of legal science in Vietnam 1s aimed to catch up fo the developments inthe world, this chapter will also make clear the influence of the world and the region on theVietnam's circumstances in the field of SAD, especially in the creation of the model of the

Administrative Division Court to deal with adininistrative disputes.

In Chapter HH, in order to confirm that the improving mechanism for SAD ts an importantcontribution to the process of PAR in Vietnam today, there is an indispensable need to prove in

fact the history and outline of Vietnam‘s experience in SAD. As in mentioned above, the secondmain question how is the important contribution to PAR proved in fact by the process ofimproving mechanism for SAD in Vietnam? will be concentrated on to provide an answer. This

represents the most important earl of the thesis, so that this chapter atms to analyze and prove the

<small>process of improving the mechanism for SAD in Vietnam by dividing tt in to two main periods:</small>

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the first is prior to July, 1996 known as the “Ministry-Justice”’* mechanism that revealed a Jot ofshortcomings, leading to the indispensable need of setting up a better model for SAD known asAdministrative Division within People’s court system handling out administrative disputes. The

second concerns the period from July 1996 up to now, in which this paper poured over manyefforts to analyze the main encountered problems of the existing mechanisin that need to be

recovered for its existence. In addition, the apparent shortcomings of the new mechanism for

SAD exposed in the recent years has once again made a good condition for the legal debates

developed, so that in the rest of chapter II, the paper wants to conduct a discussion concerning the

support or non-support of the existing model. One, there should change the existing model as theAdministrative Division Court to another new model as proposed before 1996. This was known

as an “independent administrative court system”, “formed and subordinated to the Prime Minister,bul separating from executive organs”, and the existing State Inspectorate agency shall befunctioned as both dealing with disputes and making legal consultation to government like the

model of the Conseil @ Etat tn France. The other ts to mamtain the existing model and along with

some appropriate changes of the present Constitution 1992 continuously improve both theorganizational structures and legal regulations concerned step- by- step.

In Chapter HI, the last question shall be examined 1s what is the direction for improving theexisting mechanism for SAD and its tnplication toward the overall PAR process in Vietnam

<small>It means mn Vietnamese “Bo truong- quan toa” mechanism. According to this mechanism, the administrative</small>

<small>avencies were handed over the competence of both giving the administrative dispositions while performing the pubic</small>

<small>power and also making the final yudements thereof when complaints appeared. See L.. Neville Brown and Jolin</small>

<small>S Bell. French Administrative law, 47 (1998 )</small>

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today? Since some appropriate changes to the Constitution of 1992 was made by the lo"

National Assembly in December 2001 and the importance of the development of internationalco-operation and foreign legal aid has been fully realized, the last chapter aims to present someproposals for the direction of improving the existing mechanism for SAD. In addition, since

having a chance to study Japanese law, this paper wants to briefly identify and analyze the

positive points as well as some remaining issues of SAD in Japan that are really useful to draw

some lessons for Vietnam‘s experiences in SAD,

There are two main reasons that require such a study.

First, concerns the controversial character laid down on the effectiveness of the existingmodel as Administrative Division within People’s Court. The foundation and inauguration of

Administrative Division Court for over past five years re-marked an epoch-making step toward

the improvement of the mechanism for SAD in Vietnam by applying “judicial review of

administrative actions” that have not been known before. Along with certain results, the existing

mechanisnt has also left behind a lot of shortcomings that need to be recovered for existence. The

low-effectiveness in SAD tn some past years once again enhances the legal scientists and the

public’s attention to looking for a better mechantsin for SAD. All these points ake this topic far

from being out of date and still a hot-issue in Vietnam, even though Administrative Division

Court has existed since 1996. Besides that, PAR in Vietnam promoted by Communist Party since

the beginning of 1990s is a new task, “without precedents” that needs to be promoted step by step.

This thesis finds a need to put the PAR in its relation to the overall requirement for improvement

of the mechanism for SAD today in order to find out both the legal and practical basis for

explaming the remaiming tssues, and to think of 1s better development in the future.

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Secondly, the topic is attractive by both tts theoretical and logical character. As mentioned,Vietnamese lepal sciences m general as well as the field of administrative law in particular are

still ummature and need to be supported by foreign legal aid. The ideology behind of the “judicialreview of administrative actions”, “Nha nuoc Phap quyen”, “administrative jurisdiction” and its

distinction from the “active adininistratton” seem quite new and are in need of much attention

and complete study by the legal scientists and administrative governors as well. In addition, the

lopicalily in such a topic also draws my attention. Such as the SAD issue is not only examined

separately but also put in mutual relation toward the overall process of PAR, the process of

improving the mechanism for SAD in Vietnam is analyzed in its relation to the development of

Vietnamese history as well as the tnfluence of the development of the legal science in the world

and so on that are presented m the thesis.

<small>2. METHOD OF RESEARCH</small>

<small>While conducting the research, the main used methods were the analysis and synthesis of both</small>

the lewal and practical issues relating to SAD and PAR in Vietnam. The writer collected the

matenals concerning on SAD in Vietnam including the update data such as the annual reports on

judgment activities made by the Supreme Court, the report on SAD made by General State

<small>Inspectorate and so on; analyzed the process of tmproving the mechanism for SAD, presented the</small>

own opmions upon the being debated issues and to a certain extent proposed directions in the

Although the comparative laws method is a still difficult one, the writer also try best to take HH

during the research to make comparison and collation between Victnaimese law and some other

foreign laws such as Japan, France and some other countries in the world and the Asian regiontowatl the legal issues involved.

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CHAPTER |

PUBLIC ADMINISTRATION REFORM "( PAR ) IN VIETNAM AND ITS RELATION TO THE

OVERALL REQUIREMENT FOR IMPROVEMENT OF THE MECHANISM FOR

SETTLEMENT OF ADMINISTRATIVE DISPUTES 7( SAD )

The purpose of this chapter 1s to make clear the mutual relation between the PAR and the

overall requirement for improving the mechanism for SAD in Vietnam by first giving an

overview of both the process of PAR and the mechanism for SAD, then directly analyzing thisalleged mutual relation through five main points and confirming the unportant contribution of thelatter to the former.

I. Overview

I. Overview of the PAR process in Vietnam

On September gn 1945, President Ho Chi Minh read the Declaration of Independence, the NewDemocratic Republic of Vietnam ‘came in to existence and a state administration was formed.Vicinam immediately experienced (vo continuous bloody wars for liberation and đefense `. OnJuly 2” 1976,under the resolution of a reunified Vietnam National Assembly, the whole country

chtered in to a period of transition to socialism. During the process of poverning the country, the

State with the sole ruling Communist Party has coped with many difficulties in the build up anew democratic socicty in conformity with the development of the region and the world, which

required a complete renovation for Hs existed being. The 6ˆ National Congress of Vietnamese

" Hereinafter referred to PAR

“Hereinafter referred to SAD

‘The first name of Vietnam, then it changed to * The Socialist Republic of Vietnam “since July 2" 1976 by the<small>reunified National Assembly after the war's end , formally provided in the forewords of Constitution of 1980</small>

Sco Political Report of the central committee, 8” tenure at 9" National Coneress

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Communist Party in 1986, based on “the attitude in assessing the situation is to face and to tell

the truth’? that earnestly recognized the mistakes and shortcomings resulted in the less

development of the whole country over the past ten years since the reunification was laid down in

the “Party’s ideological and organizational activity” and courageously called upon the

renovation, has been seen as a significant turning-point in Vietnamese history. As a result, since1986, under the leadership of the Communist Party, the country has pursued a comprehensiverenovation policy known as “Doi Moi”, shifting from a planned economy operated through a

central, bureaucratic mechanism in to a multi-sector economy operated through a market

mechanism, subject to the monitoring by the State®. PAR is seen as a necessary component in theoverall renovation process and has become an important policy component of the Party and theState. PAR in Vietnam is still a new task, “without precedent ” The development of concepts

and baste principles for PAR as well as the formulation of guidelines and directions for PAR bythe Party and the State has resulted in a continuous developing process.

Looking back at the history prior to 1986, although the watresistant government (period 1945

-1975) and the reunified government (after -1975) had already conducted some remarkable reformpolictes concerning the state administrative management closely connected to collectivist or

socialist reform", and the concept of “Public Administrative Reform” was not still mentioned .

During this period, the fact remains that the organizational rearrangement of the administrative

<small>See the 6" Party C onpress Document < http// www. cpv.ore. vn/cpv/nationalconeuressecs/6thconegresscs2ndex htm ></small>

<small>hes term means” Renovation” and tis popularly used in Vietnam since the 6" Communist Party Congress in</small>

<small>1986, hereinafier referred as “ Dot Mọi”</small>

"then phap Victnam 1992, [Vietnamese Constitution 1992, hereinafter referred to Vietnamese Constitution 1992],<small>Art TS</small>

= ee “The review of reform activities carried out tn the past 5 years of implementation of Party Resolution No 8 (the

7° congress) and Resolution No 3 (8” congress) by Government Office of Vietnam “| 3 (2000)

"Such as land reforms in the period of 1983-1954 i the North of Vietnam and of 1976 in the South, and the

<small>socialist industrial and trade reform since 1976 in the whole country.</small>

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system was implemented and more attention was paid to the development of legal institutions as

well as the staffimanagement.

[he conceptuahzation of PAR has improved step-by-step since the 6" Party Congress (1986).

The 6" Party Congress Document showed that “in order to set up the new mechanism for stateadministrative management, there needed a tremendous reform of the state organizationalstructure’”!'. Thus, the concept of PAR was not fully mentioned, except for “the reform of the

state organizational structure” to be seen as a major component of the reform.

During the period 1992-1995, the 7"° Party Congress `” represents a time of strong development of

the Party‘s thinking perception and conception of public administration and PAR, Resolution on

“administrative procedure reform”' was enacted by the government in 1994 and considered abreakthrough for PAR, aiming at improving the democratic relationship between the State andvarious subjects in a new economic and social context. The 8" Plenum of the 7” tenure Party

Congress in 1995 constituted a turning point in building and improving the public administration.

The term of PAR, for first time, was officially mentioned in Party’s documents. Hence, PAR was

concerned with three major components such as: the “administrative institutional reform”, the

“organizational structure reform”, and the “development of cadres and civil servants” were

systematically presented for the first time in the significant political documents.

During the second half of the decade of the 90s, the Vietnamese government, based on the

guidelines of the Party Resolution No 8 of the 7" Party Congress, strongly promoted the PAR

' Van kien Dai hor Dang toan quoc lan thu 6, [Document of the 6" Party Congress], 118 (1986)

: . The term of the 7" Party Congress was from 1991 to 1996

"See Resolution No 38/ CP on May 4" 1994 on Reforming Administrative procedure

"See the 7” Party Congress Document < hitp// www. cpv.org.vn/cpv/nationalcongresses 77” congress /index hin >

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process in parallel with the process of Judiciary Reform'*that has resulted in the important initial

achievements of stable socio-economic growth as well as the political stability, made Vietnamgradually integrated m to the development of the Asian region and the world. However, PAR hasnot yet been able to meet the requirements of renovation, especially economic in which theremnants of a stale admmustration designed for a centrally planned and bureaucratic mechanismsull remain, PAR has faced obstacles to its progress, such as “Jow and irresolute”'” reform andinconsistent implementation. The Political Report of the latest 9°" Party Congress (April, 2001)

frankly criticized the weakness and shortcomings in the implementation of PAR. This reportespecially pointed out the situation of the country in the past five years and the main lessons of 15

years of renewal concerning PAR, such as “the state apparatus which has been organizationallycumbersome with overlapping functions, numerous intermediaries and harassing administrative

procedures” “and the quality of not a small number of public officials and employees who have

been “substandard in both ethics and job qualifications, professional capacities and vacational

skills Thus, Vietnam has still been looking for effective measures to carry out successfully the

PAR process, and ts objective is also emphasized in the “Official Report” of the latest session

of the 10" National Assembly (December 2001) that there needs to be further speeding up of theprocess of PAR, promoting the effective operation of administrative apparatus. PAR is a broad

<small>catepory in both theoretical and practical aspect, so thal in the scope of this thesis, the writer ts</small>

<small>notin desire of dealing with all problems involved in PAR, but cndeavors to focus on PAR tn its</small>

relation to the overall requirement for improvement of the mechanism for SAD.

Judicial reform was conducted since the end of 1992. See National Scienufic Project No 92-98-3543 Tudicral

<small>reform in Vietnam, 7t (1993)</small>It Supra note 4

'” See the Official Report of Government in the 10" session of the 10" term National Assembly in December 2001

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2. Overview of the mechanism for SAD in Vietnam

in order to fully understand “the improvement of the mechanism for SAD” in Vietnam seen as animportant contribution toward PAR process, there is an indispensable need to attach it to thedevelopment of the administrative law as well as the administrative system with the respect of

2.1 The development of Vietnamese administrative law concerning SAD

The modern administrative law, in the broaden sense, involves the study of “how the system of

governments which are neither legislatures nor courts make decisions” and how to govern the

relationship between the citizens and government agencies and the interrelationship among

government agencies”'. In addition, judicial review of administrative action known as the mainpart of administrative law aims to undertake “the primary purpose””to protect citizens against the

malpractices of administration, With the above understanding about administrative law,

Vietnamese administrative law may be criticized for taking so long to develop, especially

sometime or Somewhere blamed for not effectively protecting people’s rights and legitimate

interests provided by law.’ Looking back at its historical development, some outstanding features

could be drawn and explained as follows:

Modern history witnessed the foundation of Democratic Republic of Vietnam in1945 thal ended80 years of French colonization. Vietnam then experienced 30 years of suffering from wars to

liberate the country, consequently the Vietnamese administrative law in this period was strongly

<small>influenced by wars and primarily aimed to serve the revolutionary task. Administrative law was</small>

| William F Fox, Jr, Understanding Administrative Law, | (1986)

<small>_, J Beatson & MH Matthews, Administrative Law, Cases and Materials, 3(1989)- Mark Aronson & Bruce Dyer, Judicial Review of Administrative actions, 2 (2000)</small>

“See Nguyen Duy Gia, Thiết lap tat phan Hanh chính o nuoc ta [The establishment of Administrative Jurisdiction inVietnam], (37 (1995)

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taken as an effective instrument in hand of the government to contribute to the land andagricultural reforms in 1953-1 954, trade and industrial reform, ownership nationalization inwhich individuals were not allowed to own the means of production, land, and all private

management was also prohibited.”“During this time, it did not mean that the people always were

satisfied with government's decisions, or that the government completely ignored the people‘swill In fact, the system of Inspectorate”? was set up and inaugurated from 1945 to deal with

complaints of people toward the State, but due to reasons laid down by wars and all for thesuccess of revolutionary works, these kinds of disputes seemed less developed and thusadministrative law lacked grounds for reviewing it.

The Vietnamese administratTve law, after the liberation of the country in 1975, can be divided into two stages, one Is prior to “Doi Mor” in 1986 and the other is from 1986 up to this date.

Adnunistrative law in the former aimed to contribute to the socialist regime in which collectivismwas highly concentrated, Since administration had played an important role in ruling the country

through the state plans by cách five years, as to administrative law, though many legal norms

were issued but not treated as laws because they did not provide for good methods of

enforcement and only imposed one-sided duties on enterprises and citizens, Disputes between

<small>people and the state had still not drawn much attention meanwhile those among enterprises were</small>

resolved under the form of arbitration “just like taking money from one pocket and putting it in to

<small>another pocket, both pockets belonging to the state’. Administrative law after “Dot Mor” 1986</small>

up to date has step-by-step developed in the both aspect of governing and protecting the people's

‘See Vu Dinh Hoe. Lich su nha nuọc va phap luat Vietnam ,[ The history of State and law of Vietnam |}, 156,

( 1967), and see also documents of VIE 02- 992 project in Vietnam since 1986 to 2000

State Inspectorate was formed on November 23TM 1945 in the name of“ Special Inspector Commission “[ Uy ban<small>thanh tra đạc biet |</small>

“Michael Bovdan, Comparative Law, 204 (1994)

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tiphts and legitimate interests, catching up with the full meaning of the administrative law that

was marked by the reception of “judicial review of administrative actions” resulted in the creationand operation of the Administrative Division Court in July1996, making a great contribution toset up “Nha nuoc Pháp quyen "(Recht staat or Legal State) in Vietnam.

2.2 Mechanism for SAD

Naturally, the legal system ts highly influenced by the country’s political system, especially in the

matters of constitutional and administrative law.?’ The political system, in its turn, is influenced

so many other factors, such as the country*s economic structure. In order to thoroughly grasp themechanism for SAD in Vietnam, the mutual relation to the political and economic structure in the

justorical development must be studied as well.

[he political system in Vietnam 1s formally based on the principle of power centralization. TheVictnamese Constitution refuses the concept of separation of powers. It is more correct lo talk

about the “division of function . All state power ts centrally in hands of the National Assembly,

the highest representative organ of the people, accordingly tt ts the only organ with constitutional

and legislative powers, which then delegates executive power to the government and Judicralpowers to the court and the procuratorate agency. The role of the sole ruling Communist Party is

stipulated in the Constitution’”. The relationship between the administration and the Party mayappear confusing to western observers ’since the preamble of the Constitution of 1992 states that

“the people are the masters, while the state provides management and the Party provides the

leadership”. This explains why all reforms in Vietnam are found to be originating from the Party

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Conuress documents including administrative reform as well as the foundation of theAdmimistrative Division Court handling the disputes".

Being vigorously influcnced by the changes in economic structure that shifted from the central

planning economy to multi-sector market economy, the mechanism for SAD in Vietnam haschanged fundamentally to meet the requirement for the overall renovation, especially for thetincly dealing with complex disputes emerging in the open-door economy. Looking at the

histertcal aspects, the establishinent of the Administrative Division Court handling disputes sinceJuly 1996 can show a landmark to discriminate the mechanism for SAD in Vietnam in to two

types as follows:

Priot to 1996, the mechanism for SAD in Vietnam was known as the “ministers-judges”

mechanism” in which all disputes were settled within the state agencies applied “administrativereview of administrative action”. The administrative agencies while performing public powershad ‘numerous prerogatives and exercised a great deal of discretion”, so that under the

Constitution and a number of law documents”, they are obliged to subject to numbers of external

controls, such as the supervisory activities of the National Assembly toward government'sdocuments, the “internal control” activities of administrative agencies to recover itself the

mistakes; the general supervision of procurators” ` at all levels toward the legal performance of

See ll Resolutions of Party Congress, especially the nh git gu conceming on the mentioned issues

<small>“ Be truong - quan toa” mechanism, See L.Neville Brown & John S. Bell, French Administrative Law, 47, 48(1998</small>

<small>‘Thutuc Hanh chính [Administrative Procedure]. accordingly all Administrative disputes are resolved within</small>

<small>Adnuristrative avency system by “ internal control”</small>

' Witham F Fox, Jr supra note 20, at L9

` Such as law on organization and operation of the National Assembly, the Government, the People’ Court and<small>Peoples Prosecution. laws on organization and operation of some political social organization such as Fatherland</small>

<small>Front, Frade Union, Youth Unton. Jaw on complaints and denunciation, ordinance on Inspection — etc“The function known as" the general supervision `” of procuratorate agency system was repealed by the</small>

Amendment of Constitution 1992 at the 10" session of the 10” National Assembly in December 2001 Tt now

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administrative agencies, the examination of a vartous social organizations toward administrative

management activities and so on. The State Inspectorate was set up in 1945 and developed muchin both the names and organization to catch up with the requirement for SAD. However, it wasstill an administrative agency that was vested not enough strong power to deal with disputes.Although thal was not the sole reason, it shall be interesting to discuss in chapter IT why thismechanism for SAD was not suitable for the present time.

Since July 19906, the mechanism for SAD has considerably changed in which for the first time,

people are allowed to sue administrative authorities to an independent judicial court due tocausing them damages guaranteed by law. All disputes are resolved first by the administrativeagency that renders such a litigated decision. People, in case of disagreement with such a reviewdecision, can chose either continuously to make complaints to immediate higher-level agency or

to initiate a case to the Administrative Division Court’”. The system of State Inspectorates, sincethe birth of the LOCD"TM replaced for the OSCCDTM in 1991, has not functioned as a competent

agency handling administrative disputes, but consulting to people’s commitices to deal with

pcople`s claims, except for the case of delegation’”.

The theory of judicial review of administrative action has been enthusiastically welcomed inVietnam for over past five years. The new mechanism for SAD has had a great contribution to thesetIlement of the peoples complaints toward the infringement by the administration, However,

<small>undertakes {wo main functions as “ prosecution ” and “ supervising the judicial activities". See the amended</small>

Pháp lenh piát quyet khieu nai to cao cua cong dan, [Ordinance on settlement of citizen’s complaints and

<small>denunciations, hereinafter referred to OSCCD]</small>

"See LOCD, Art 26, 27

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after five years of experience, it has also left behind a lot of shortcomings that need to be

recovered for existence. This paper is therefore poured over much effort to point out and analyzethe encountered problems in chapter II, definitely emphasizing that Vietnam has still been

looking for an effective mechanism for SAD.

Il. Why the improvement of the mechanism for SAD is an important contribution to PAR

in Vietnam?

1.PAR has been seen as a springboard for the improvement of the mechanism for SAD,

In thts part, the problem that should be made clear is to point out the mutual relation betweenPAR and the improvement of the mechanism for SAD, in which the former regarded as a spring-board for the later. Three aspects need to be explained as follows:

Firstly, PAR is a “common phenomenon"! happening in all social regimes and countriesthat are sll quite different in the political system or governmental structures”. The ONIZINS,

contents and cffects of PAR can be explained by practical factors laid down in each country other

than “its leader's rational choice"' In Vietnam, the state administration established since the

liberation of the country up to date has revealed a lot of defects featured by cach stage that leadslo the imperative requirement of the overall reform, aiming at ensuring the effective and concreteoperation of the public administration, keeping the powers of administrative authorities withintheir legal bounds as well as protecting people from their abuse. Authorities, during the carryingout the public powers tn everyday life, are empowered to render a great number of administrativediscretions, whether accidentally or deliberately, may inevitably infringe on people concernedthat in turn leads to various administrative disputes appeared and the requirement of resolving tt.

<small>Nails Brunsson & Johan P Olsen, The reforming organization, } (1999)</small>

<small>Vu Điện, Car cach tanh chính va cai cách kinh te, [Administrative reform and economic reform], 7 (2001)</small>

<small>Là + » ae ` ..Nas Bronssan & Johan P Olsen, supra note 4. at” preface ” part</small>

TRUONG !

THUVIEN GIAG |

TRUONG ĐẠI HỌC LAT HA NÓI #! :

PHONG ĐỌC AS. & an oot

THU VIỆM |

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ifthe public administration is strong and effective enough and there is no malpractices by the

authorities, the numbers of disputes will be considerably reduced or even disappear.

Simultaneously, if the public administration is well reformed, it will create in itself the effectivemechanism for resolving disputes while protecting the rights and legitimate interests of people as

well as deceasing the antipathy of people toward the administration. Thus, PAR in Vietnam,

besides some other factors such as to ensure the administration to operate well in everyday life,

has evidently originated from the practical requirement of SAD that is considered as a

requirement in the adiministration itself, and not the “subjective choice” of Vietnam‘s leadership.Accordingly, PAR ts really defined as a springboard while dealing with the SAD.

Secondly, looking at this mentioned issue from the philosophical principles” that have muchinfluenced the Vietnamese legal system namely Marxist doctrine” . According to thts doctrine,

“all things existing tn the world have inside and outside relations and mutual relation among them

and to the others’ and “motion is the mode of existence of matter”. Asa result, whatever

things could not be examined precisely without being put in its relation to the others or ina

certain aim’, PAR thus is necessarily examined in its relation to the averall requirement for

Improvement of the mechantsm for SAD and the latter is aimed to carry out the main contentsand objectives of the former that shall be continuously discussed in the next section

= Studying socialist legal system (that Vietnam much influenced from former Soviet Union) should attach it to the<small>sole philosophy theory, namely Marxist - Leninist Philosophy. See Rene David & John E.C. Brierley, Major systems</small>

<small>in the world today, 169 (1985) and see also Text book of Marxist-Leninist Philosophy in Vietnam (1999)</small>

* nee giao trình Triết học Mac- Lenin, [Textbooks of Marxist -Leninist Philosophy m Vietnam] (1999)

"Chu nghĩa duy vat bien chung ve-the gioi,[ The textbook of the word materialistic dialectics — Marxist- Leninist

<small>Rene David & John E.C Briecley, Major legal system im the world, 170 (1985)</small>

“Le Sv Thiếp, Vat tro tat phan Hanh chỉnh va yeu cau dat ra dot vot to chúc co quan tat phan, |The role of

<small>Administrative jurisdiction and requirement laid down to the organization of Administrative purisdiction agency JinNATIONAL SCIENTIFIC PROJECT NO .95-98-406/DT " ADMINISTRATIVE COURT - THEORETICAL ANDPRACTICAL PROBLEMS “by General State Inspectprate, 91 (1997)</small>

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The final and tmportant reason to explain the alleged issue is the theoretical aspect laiddown in the fundamental principle of administrative law showing that the administration itself

includes two co-existing sides as “active administration” “and “judicial administration”. The“judicial functions are distinct and will always remain separate from administrative function’?!

There should remain a clear distinction between those administrative agencies responsible for the

“initiation of governmental or other administrative action"2 and those which are “adjudicative

avencies”” responsible for the adjudication or resolution of disputes arising from administrative

actions. The improvement of the mechanism for SAD m Vietnam, in which administrative

disputes are allowed lo be settled by competent courts since 1996 are‘parallel with those settledby administrative agencics affirms as the “judicial function” of administration that has never been

known in Vietnamese administrative law. Thus, it aims to carry out the main contents of PAR as“unprovements of the legal system concerning on SAD”. PAR, tn its turn, is held responsibility tocreate a favor condition to resolve administrative disputes, such as: the “organizational structure

reform””” is auned to setup an effective “adjudicative agency” to deal with disputes; the“institutional reform”? is (o render an appropriate legal framework for SAD and so on,

accordingly PAR ts really scen as a fundamental and indispensable requirement in order lo

improve the mechanism for SAD in Vietnam,

“Meaning as the managing function of Administration, See Neville Brown & John S. Bell, French Administrative

` Meaning as the judicial function of Administration. See Neil Hawke, An mtroduction to Administrative Law, 142

‘| Nevile Brown & John S Bell, French Administrative Law, 46 (1998)

<small>Nel Hawke, An intioduction to Administrative Law, 19 (1989)Id</small>

<small>„Ông of the mam content of PAR. See part H2 below</small>

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2Improvement of the mechanism for SAD considered as an effective measure to carry out

the main contents of PAR

the perception and understanding of PAR in the context of overall reform has increasingly

became clear for the political leadership, the civil servants and the general public in Vietnam,

Ihe problems being addressed by PAR and the process of implementation are various and very

complex. This part of the paper aims to point out three main contents of PAR closely concerning

the improvement of the mechanism for SAD as below:

2.1 Reform of administrative institutions

Administrative institution reform was conducted after the 6” Party Congress (1986) together with

the economic reform and the creation of the new economic mechanism namely “market economy

oriented socialisn’’”. After the birth of the Constitution of 1992, the administrative tnstitution

system has been gradually renewed to catch up with the requirement of slate management and ofpublic service delivery in the open market economy, and little by little it has improved in

accordance with the process of expanding democracy.

The new democratic institution has allowed people to protect themselves from being infringed by

the administration, as a resull, ïLcaused a great numbers of disputes arising between people and

public authorities or state that should be both legally and rationally resolved. In order to satisfy

the above mentioned demand, Resolution No 8 of the 7 Party Congress thatis considered to be

officially use the name for PAR, determined “there should intensify the settlement of complaints

and litigations of people`””, correct and make new legislative reeulatian concerning some

administrative fields centrally arising in disputes such as over land, housing, soctal policies ete

<small>Victnamese Constitution 1992, Art 18</small>

<small>‘See Van kien hor neht lan § BCHEWV Dang khoa 7, [Document of the 8” session of the 7” Party Congress], 29</small>

bo =<small>oS</small>

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ind “promote the foundation of administrative court to deal with the litigated administrative

dispositions made by authorities of the state””*.

[he requirement for SAD has obliged the government to implement the effective measurestoward administrative institution reform, such as the important legal documents that have beenissued’, the new legal framework covering the all fields of society included concentrated

litigation fields that have been built?” especially the reforms of administrative procedure from

*Slof PAR. Administrative procedural reform has focused on

1994 1s regarded as a “breakthrough

seven fields”? concerning on initiating disputes, for instances: complaints and denunciations;

granting of construction permits and certificates of land-use rights: granting permits of business

establishments and business administration, foreign direct investment; import and export...etc.

The administrative institution, in fact, has a lot of shortcomings during the operation process. Inrespect of the legislative, it ts common that superior and subordinate regulations are inconsistent.

Provisions in superior regulations are sometime too general, leaving too much discretion to lower

level reptilations that cause difficulties for competent agencies in application of law to resolve

disputes, lessening the effectiveness of SAD as well as decreasing the trust of people toward

<small>present mechanism for SAD. This will be the focus of discussion in chapter HH. In respect of the</small>

application of law. the problem laid down finds that the local authorities empowered to render toomany administrative dispositions, some of these are far from legal and in uniform with legislativeprovisions, that naturally resulls in complaints or court action by people.<sub>` J ¥ pcoy</sub>

<small>Such as Foreign Investment Law, Domestic Investment encouragement law, OSAC in 1996, LOCD in 1998,</small>

<small>Ordinance on cadres and public servant etc. See supra note 9, at 7</small>

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The administrative institution reform thus has aimed to recover these encountered problems suchas improving the quality of legal documents including documents involved SAD, securingdemocratic rights of people. What result shall be scored, whether good or not, surely depends onthe effectiveness of the contemporary mechanism for SAD.

2.2 Reform of the organizational structures of the state administration

In order to improve (he mechanism for SAD, the important issues that should be given much

more consideration are the effective operation of the state administration and the definition of

competence to resolve when adininistrative disputes arise, in another words, the questions thatshould be made clear ts how to make administration avoid from infringing on people‘s rights. Ifmevitably 1L happens, which competent state agencies are empowered to deal with the problems isof utmost concern. Analyzing developed legal systems such as in countries like France, German(belonging to continental law family), England, America (belonging to common law family) oreven Japan known as a mixed legal system, the “judicial review of administrative action” has

experienced a long history to protect people from administrative abuse in which the

administrative disputes can be solved by the various entities such as administrative courts,adininistrative tribunals, ordinary courts, or by the system of ombudsmen. In Vietnam, SAD, upto July 1996, was only in competence of the system of administrative agencies including the

<small>system of State Inspectorate. If an administrative dispute wants to be resolved by a judicial court,</small>

the requirement for the organizational structure reform (such as the creation of AdministrativeDivision Court) will be inevitable. The discussion of which model of administrative court should

be applied in Vietnam or the redefinition of the function of the State Inspectorate or the

<small>procuratorate agency involving SAD are really good examples for the above mentioned matter</small>

that will be continuously presented in detail in the next chapter.

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2,3 Improving and developing cadres” and civil servantsTM

Civil servants represent the “key resource”? in bringing about the success or failure of PAR. The

promulgation of the Ordinance on cadres and public servants is seen as the most significant resultin the creation of a new legal framework on developing the cadres and civil servants.

in fact, Vietnam lacks a stable and professional contingence of civil servants in comparison with

the average level of other countries. The two main problems laid down in Vietnam are theinadequate remuneration and low quality of civil servants. The current salary levels fail to

motivate civil servants to perform better on the one hand, and the lack of training and upgrading

the major knowledge in the other maybe seen as the main reasons causing law violation, bribe,

corruption, low performance and quality of service. Cadres and civil servants do not serve the

public in.a manner of being “servants of citizens”.

The alleged defects has resulted ina great number of administrative disputes arising between

people and public authorities, and also decreased the effectiveness of settlement of disputes sincepublic authorities who are in competence of SAD fail to meet the expectation of people. Thequality of public authorities in charge of SAD such as administrative judges, people assessors,

procurators, inspectors or the heads of review agencies ts also in serious debate. As a result, theImprovement of mechanism for SAD might fail to get certain success unless it is definitely ablefo overcome these defects.

3. Improvement of the mechanism for SAD aims to carry out the main objectives of PAR tobuild up successfully “Nha nước Phap quyen” in Vietnam.

<small>ˆ See Phap lenh can bo cong chục, (Ordinance on cadres and civil servants, hereinafter referred to Ordinance on</small>

cadres and civil servants} enacted on February, 26" 1998, Art |

“` Supra note 9, at 30

“Tdi at 16

ho ¬

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The legal concepts of “Phap che” (Principle of Legality, hereinafter referred to as Phap che)

and “Nha nuoc Phap quyen”(Lepal State) are popularly used in Vietnam at present.

Firstly, 11S Important to explain what may be a confusing difference in terms. “Phap che” can be

compared with “Rule of Law” known as a legal concept of the Anglo-American law. “Rule of

Law”, in the eyes of western lawyers, is not unfamiliar and seen as a fundamental content of the

administrative law, closely attached with the “separation of power”. Administrative law

"6? the Rule of Law

meanwhile is defined as “the law relating to control of governmental powers

requires the “recognition of the predominance of the regular law, as opposed to arbitrary or wide

discretionary powers”. Hence, in essence, the Rule of Law requires all governmental powers to

be bound by law and it is regarded as a “useful doctrine in order to measure any undue shift of

power toward executives”””. In the case of Vietnam, deeply influenced by former Soviet Union’slegal system in Stalin period, the concept of “Rule of Law” was unknown, the concept of “Phap

che Xa hoi chu nghĩa ”(Prinetple of Socialist Legality’) has been commonly used instead. With

the affirmation of the principle of socialist legality, “law has been given the character andauthority that thas m capitalist country”, however the reason why the adjective “socialismwas added that, like the former Soviet Union, the strict confonnity to the Soviet legal order or to

socialism oriented state’s law in case of Vietnam was absolutely tmperative and it aimed to

legitimize the obligation to the law and to make the principle of legality meaningful“. In Vietnam,the concept of “Phap che”(Principle of Legality) that to some an extent can be compared with that“Mark Aronson & Bruce Dyer, supra note 22, at 2 (2000)

<small>Neil Hawke, supra note 52, at 3</small>

"Td at9

"This concept is influenced by Former Soviet Union Icgal system. Wis noted that this principle was first asserted tn

<small>USSR during the period of New Economic Policy 1921-1928 and could not be recognized during period ofrevolutionary comounisn im TS SR 1917-1921 See Rene David & Jolin FC Brierley, supra note 17.at 183, 209</small>

See Rene David & John EC Brierley, supra note 47, at 209

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of Rule of Law in the aspect of the law’s authority is newly adopted and becomes common in usetoday. Especially, after a couple of years of implementing “Dot Mor” policy, this was officially

“Phap che” was mtroduced in Vietnam in its relation to the theory of the “centralization ofpowers”, according to that, all state powers were centrally integrated, but clearly divided among

levislative, executive and judicial power. “Phap che” is seen as the fundamental legal principle”,

provided in Article 12 of the Constitution 1992 that requires all state entities and individuals toact respectfully and thoroughly according to the law.

Secondly, tt should be explained that the notion of “Nha nuoc Phap quyen” is a further

development of “Phap che” in Vietnam. The “Overall program for PAR in Vietnam in the period

of2001- 2010” has reaffirmed the main objectives of PAR is to build up“ a strong, modern and

democratic administration ”” “and “Nha nuoc Phap quyen Vietnam

“Nha nuoc Pháp quyen” m Vietnamese is defined as a state based on the “democratic and

scientific admmistration""ˆˆ, puts itself in the good obedience of the law in which “the superiority

Vietnamese Constitution 1992, Art 12

is Nguyen tac Phap che ` [Principle of legality], See Text book of Vietnamese Administrative Law edited by

<small>Hanoi Law University, 64, 80 (2000)</small>

Sce QD 136/2001 /QD- Trụ September17" 2001 by Prime Minister approved the “ Overall programs for PAR in<small>Vietnam in the pertod 2001-2010”</small>

” 1d“id

1e Binh Vong, Mot so van de ve tại phan Hanh chính o Vietnam , [Some problems on Administrative Jurisdiction<small>m Vietnam |, 84( 1994)</small>

“1d, at 85

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as a theory closely linked to “separation of powers” while Vietnam political system bas@8 on the

“centralization of powers”, the criticism surrounding the implementation of democratizatlon

Looking back at the history prior to the birth of “Doi Mot” policy, mechanism for SAD in

Vietnam was still not mature enough to be seen as an effective measure lo guarantee the rights

and legitimate interests of people. A typical fact known m Vietnam before is the superiority anddominance of Party resolutions, state plans for the development stage of each five years,administrative orders and they seemed probably equal to law. As a result, the build up of “Nha

nuoc Phap quyen” in which “the predominance of the regular law””Ẻ is recognized, the

democratic rights of the people are well protected by law has been vigorously supported by the

leaderslnp, law makers and general public and has become the essential objectives addressed by

PAR. The improvement of mechanism for SAD, thus to some extent, will obtain the alleged

objective of PAR if it satisfies the requirement addressed by “Nha nuoc phap quyen”, such as: the

protection of people from administration abuse by creating an appropriate state organ system trìsufficrent competence in the dealing with disputes; ensuring the dominance of law by setting upan effective legal framework tm all fields of administrative management as well as the

compulsory measures for enforcement.

“See Neuyen Duy Gia, supra note 23, at 137

“Net! Hawke, supra note $2, at 3

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4. Improvement of the mechanism for SAD aims to catch up with the development of legalscience of the world and region in the field of SAD.

In Vietnam, though the SAD was not unfamiliar, because right after the birth of Democratic

Republic of Vietnam on September 2TM 1945, the “Special Inspectorate Commission” was

founded and empowered “to deal with complaints of the people”. However, since then, SAD

was vested only with the system of administrative agencies including the system of Inspectorates,

Judictal review of administrative action was unknown until the creation of Administrative

Division Court in July 1996. In the context of contemporary international development, a judicial

review system has become “an essential systen’” “for those countries that are modernizing their

economy and joing the international community. The objectives laid down in PAR has also

aimed to make Vietnam quickly integrated in to the development of the region and the worldincluding the respect of legal scientific development .As a resull, the improvement of themechanism for SAD will be a really tmportant contribution toward PAR if it catches up the

development of legal science of the tegion and the world in the field of SAD. As above

implication, the next part is to present briefly the view of some major legal systems in the world

toward SAD in order to draw some lessons to Vietnam.

4.1 SAD in the view of Continental Law Family

The Continental Law family, also known as the Romano-Germanic system was created on the

[:uropean continent in the 13° century, and as a result of colonization and reception, many

non-“Special Inspectorate Commission was set up by the Decree No 64 of State President on November, 23" 1945Td

<small>“Yong Zhang. Comparative studies on the Judicial review system in East and Southeast Asia, 71 (1997)</small>

See Rene David & John lC Brierley, supra note 47, at 33

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|:uropean countries” have accepted or borrowed some certain elements and thus have becomemembers of this law family. This law family originated from the legal concepts of ancient Rone

>" closely

and derived from Roman Rule of Law. Rule of Law is seen as “a rule of conduct

related to the ideas of justice and morality and a fundamental legal theory to develop judicial

review in these countries.

This law family has clearly distinguished between private law and public law since public interest

and interest of private individuals cannot be weighed in the same balance”’. While private law is

seen as the law concerning the private relationships between individual citizens in business, civil

contracts, public law regulates the relations between those who govern and those who are

poverned, between state authorities and individuals, and among public entities’.

The clear distinction above leads to the foundation and delimitation of competence in dealing

with disputes arising in each of the law fields. Accordingly, administrative disputes involve cases

cclating to the “legal consequences originating in or by the application of the public law”

between state authorities and individuals, between public interests and private interests, while

civil disputes originating from the private interests among individuals”. ’

Judicial review of admimisfrative action In these countries 1s applied to empower the court

system to use judicial control toward administrative disputes. Courts formed throughout the

territory of the country in question are the first level. Some few courts of appeal are the courts of

upper-level with the Supreme Court as the head. The different structures of court to deal withadministrative disputes has been clearly realized such as an independent administrative court“Such as the whole of Latin America, a large part of Africa, the countries of Near East. See d

Rene David &John EC Brierley, supra note 47, at 22<small>"Ido at 81</small>

“1đ, at @3

“ Mong Zhang, supra note 86, al 248

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system Is established in case of France, German, Italy, Sweden; in Belgium, Spain and in most

French speaking Africa countries, the administrative dispute is solved by a separate division

within the ordinary courts; or finally itis resolved by ordinary courts and not divided in fo any

special division as in the cases of Denmark, Norway "etc.4.2 SAD in the view of Common Law Family

Common law is defined as “the Jaw common to all England” but did not exist until 1066” and

Common Jaw family consists of all the law of English speaking countries with a few exceptions”,

Common law was created not by means of legislation but by judicial decisions of the previous

courts as precedents” under “the principle of stare decisis”. Although the theories of Rule of

Law and judicial review have been highly developed in these countries and administrative

disputes arising between governmental power and private interests are definitely recognized, butfeatured by no clear distinction between public and private law, so that most disputes includingadministrative one are handed by the lower courts, various administrative boards, tribunals,

commissions and private arbitrators. All administrative disputes are firstly resolved by “internalreview" in the hand of administrative agencies that render the disputed administrative decisions ’”.

In cases of dissatisfaction with the original review decisions, people concerned can initiate cases

to ordinary judicial courts by virtue of the concept of “no hierarchy of administrative courts

“Michael Boudan, supra note 26, at 114

This principle simply means that “ 2 cases with substantially the same relevant facts shall be decided in the same

” See Neuyen Van Quang, Giai quyet tranh chap Hanh chính o Otxtraylia .{ Settmenent of Adminirative disputes in

Austraha ], 3 TAP CHI LUAT HOC . [ Journal jurisprudence No 3 2001 | (2001)

TM Rene David & John EC Brierley, supra note 47, at 372

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43 SAD in the view of Socialist law system

fhe Socialist law system, historically, in comparison with the development of the two main law

families presented above, is still “a young phenomenon” '°'since the Soviet Union was born in

October 1917. After the demise of the communist regiines in Eastern Europe and the rise of themarket economy reforms that took place at the end of the 1980s, along with the development of

international integration at the time being, the countries belonging to the previous Socialist law

system have almost developed their legal systems in different ways'””. This paper focuses on the

view of SAD in the previous Socialist Eastern European countries prior to collapse.

To fully understand the development of judicial review system in Socialist law, it needs to be

realized the historical development of the U.S.S.R in which the Stalin-era' was criticized for the“excessive centralization” and “the dictatorship’. that gave a judicial review system in these

countries lack a chance to develop.

Featured by the sole control of the Marxist legal ideology, accordingly, “the soctalist state which

exists in the mterest of all and not that of a privilege class” "and “individual rights and interestsare automatically protected and puaranteed"”““leading to the “non-existence of disputes arisingbetween state and citizens”. In addition, public and private law was not clearly discriminatedand judicial review of administrative action was refused, the “non-judicial control” on

Michael Bogdan, supra note 26, al 199

®Ẻ he Stalin cra began in 1924 after the Death of Lenin and ended with the Death of Stalin in 1953

<small>The denunciation of the Stalinist dictatorship by Khrushchev in February 1956) See Bionraphy of Stalin in</small>

<small>http “stel ru/stalin > :</small>

See Rene David & John EC Brictley. supra note 47, at 207td at 210

Td at 28S

<small>Nguyen Duy Cra, supra note 23, at 137</small>

"We have no more private law — wrote Lenin- for us with all has become public law”, See Rene David & John<small>ỨC Brierley. supra note 47, at 212</small>

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