Decree No. 158/2018/ND-CP the establishment, reorganization, dissolution of administrative organizations

DECREE

Prescribing the establishment, reorganization or dissolution of administrative organizations^[1]

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

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

At the proposal of the Minister of Home Affairs;

The Government promulgates the Decree prescribing the establishment, reorganization and dissolution of administrative organizations.

Chapter I

GENERAL PROVISIONS

Article 1.Scope of regulation

This Decree prescribes the principles, conditions, order, procedures and competence for establishment, reorganization or dissolution of administrative organizations.

Article 2.Subjects of application

1. Administrative organizations established under decisions of, and directed and managed personally by, the Prime Minister.

2. Administrative organizations of ministries or ministerial-level agencies (below collectively referred to as ministries), including:

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

b/ Offices, inspectorates (if any), departments, bureaus, and equivalent organizations in the organizational structures of general departments and equivalent organizations (below collectively referred to as general departments);

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

d/ Divisions in the organizational structures of offices, departments, and equivalent organizations of general departments;

dd/ Sub-departments and equivalent organizations in the organizational structures of departments under ministries (below collectively referred to as sub-departments of departments of ministries);

e/ Sub-departments and equivalent organizations in the organizational structures of departments under general departments (below collectively referred to as sub-departments of departments of general departments);

g/ Divisions and equivalent organizations in the organizational structures of sub-departments of departments of ministries;

h/ Divisions and equivalent organizations in the organizational structures of sub-departments of departments of general departments.

3. Administrative organizations (if any) of government-attached agencies:

a/ Administrative organizations in the organizational structures of government-attached agencies;

b/ Divisions in the organizational structures of administrative organizations of government-attached agencies.

4. Administrative organizations in provinces and centrally run cities (below referred to as provincial-level administrative organizations), including:

a/ Specialized agencies of provincial-level People’s Committees (below referred to as provincial-level departments);

b/ Offices, inspectorates, specialized divisions, sub-departments, and equivalent organizations in the organizational structures of provincial-level departments;

c/ Divisions in the organizational structures of sub-departments of provincial-level departments;

d/ Other administrative organizations of provincial-level People’s Committees;

dd/ Offices, divisions, sub-departments, and equivalent organizations in the organizational structures of other administrative organizations under provincial-level People’s Committees.

5. Administrative organizations in rural districts, urban districts, provincial towns, provincial cities, and municipal cities (below referred to as district-level administrative organizations), including:

a/ Specialized agencies of district-level People’s Committees (below referred to as district-level divisions);

b/ Other administrative organizations of district-level People’s Committees.

6. This Decree does not apply to the establishment, reorganization or dissolution of:

a/ Ministries, ministerial-level agencies and government-attached agencies;

b/ Provincial-level People’s Councils and People’s Committees;

c/ District-level People’s Councils and People’s Committees;

d/ Commune-level People’s Councils and People’s Committees.

Article 3.Interpretation of terms

In this Decree, the terms below are construed as follows:

1. Administrative organization means an organization that is assigned the advisory function to assist the head of an agency or organization in performing, or organizing the performance of, state management tasks with regard to sectors and fields or advise on the internal administration of an agency or organization, and established in accordance with law.

2. Equivalent organization means an administrative organization that has the position, functions and tasks as an administrative organization defined in Clause 2, or at Point b or dd, Clause 4, Article 2 of this Decree but has a different name and is established in accordance with law.

3. Reorganization of an administrative organization means the restructuring and consolidation of an administrative organization in the form of separation, merger, consolidation, transformation, or adjustment of its functions and tasks in order to form a new administrative organization.

Article 4.Principles on establishment, reorganization or dissolution of administrative organizations

1. The establishment, reorganization or dissolution of administrative organizations must strictly comply with the conditions, order, procedures and competence defined in this Decree and other relevant legal documents. A new organization shall be established only in a really necessary particular case to meet practical requirements.

2. The establishment or reorganization of administrative organizations may not result in the increase in the quantity of organizations as prescribed by the Government, the Prime Minister or a competent authority.

Article 5.Conditions for establishment, reorganization or dissolution of administrative organizations

1. An administrative organization shall be established when fully meeting the following conditions:

a/ Having legal grounds for the establishment;

b/ Meeting the law-prescribed criteria on the establishment;

c/ Having the state management scope and objects according to sectors and fields or fields of internal management of the administrative organization;

d/ Having the functions, tasks and powers not overlapping with those of another administrative organization;

dd/ The form and size of the administrative organization must conform with its functions, tasks and powers and meet state administrative reform requirements.

2. An administrative organization shall be reorganized in the following cases:

a/ Upon the adjustment of its functions, tasks, powers, organizational structure, or management scope and objects under regulations of a competent agency or person;

b/ When it operates inefficiently as assessed by the competent management agency.

The reorganization of an administrative organization to form a new one must satisfy the criteria and conditions on establishment of administrative organizations defined in Clause 1 of this Article.

3. An administrative organization shall be dissolved in case it no longer has the functions, tasks, scope and objects of management.

Chapter II

ORDER AND PROCEDURES FOR ESTABLISHMENT, REORGANIZATION OR DISSOLUTION OF ADMINISTRATIVE ORGANIZATIONS

Section 1

ESTABLISHMENT OF ADMINISTRATIVE ORGANIZATIONS

Article 6.Schemes on establishment of administrative organizations

1. A scheme on establishment of an administrative organization shall be formulated by an agency or organization proposing such establishment and submitted to a competent agency or person for consideration and decision on the establishment.

2. A scheme must have the following contents:

a/ Necessity of and legal grounds for the establishment;

b/ Objectives, scope and objects of management;

c/ Form and name of the administrative organization;

d/ Position, functions, tasks, powers and organizational structure of the administrative organization;

dd/ An explanatory report on the satisfaction of the law-prescribed criteria on establishment of administrative organizations;

e/ Projected working positions, working position-based payroll and rank-based civil servant structure in conformity with its functions, tasks and powers; having the working office, equipment and facilities as well as implementing a financial mechanism necessary for its operation after the establishment;

g/ An establishment plan and operation schedule of the administrative organization;

h/ Proposals (if any) of the scheme-formulating agency or organization;

i/ Other contents as prescribed by specialized laws and guidance of line ministries.

Article 7.Reports on the establishment of administrative organizations

1. A report on the establishment of an administrative organization shall be made by the agency or organization proposing such establishment for submission to a competent agency or person for decision on the establishment.

2. A report must have the following contents:

a/ Necessity of and legal grounds for the establishment;

b/ The scheme-formulating process;

c/ Principal contents of the scheme;

d/ Issues involving divergent opinions, and relevant issues.

3. A report on the establishment of an administrative organization shall be signed by the head of the agency or organization proposing such establishment and submitted to a competent agency or person for decision on the establishment.

4. Agencies and organizations proposing the establishment of administrative organizations are prescribed below:

a/ The Ministry of Home Affairs shall propose the establishment of the organizations defined in Clause 1, Article 2 of this Decree;

b/ Ministries shall propose the establishment of the organizations defined at Points a and b, Clause 2, Article 2 of this Decree;

c/ Offices, inspectorates, departments, bureaus and equivalent organizations of ministries shall propose the establishment of the organizations defined at Point c, Clause 2, Article 2 of this Decree;

d/ General departments of ministries shall propose the establishment of the organizations defined at Points d, e and h, Clause 2, Article 2 of this Decree;

In case ministers decentralize general directors to decide on the establishment of the organizations defined at Point h, Clause 2, Article 2 of this Decree, departments of general departments shall propose such establishment.

dd/ Departments of ministries shall propose the establishment of the organizations defined at Points dd and g, Clause 2, Article 2 of this Decree;

e/ Government-attached agencies shall propose ministries (agencies assigned by the Government to manage them) to request the establishment of the organizations defined at Point a, Clause 3, Article 2 of this Decree;

g/ Administrative organizations of government-attached agencies shall propose the establishment of the organizations defined at Point b, Clause 3, Article 2 of this Decree;

h/ Provincial-level People’s Committees shall propose the establishment of the organizations defined at Point a, Clause 4, Article 2 of this Decree;

i/ Specialized agencies of provincial-level People’s Committees shall propose the establishment of the organizations defined at Points b and c, Clause 4, Article 2 of this Decree;

k/ Provincial-level People’s Committees shall propose the establishment of the organizations defined at Point d of Clause 4, and Point b of Clause 5, Article 2 of this Decree, which fall under the jurisdiction of the Prime Minister as prescribed by law;

In case it is prescribed by law that provincial-level People’s Committees shall decide on the establishment of the organizations defined at Point a of Clause 4, and district-level People’s Committees shall decide on the establishment of the organizations defined at Point b of Clause 5, Article 2 of this Decree, specialized agencies advising on the state management of the apparatus organization under provincial-level People’s Committees or district-level People’s Committees shall propose such establishment.

l/ Other administrative organizations of provincial-level People’s Committees shall propose the establishment of the organizations defined at Point dd, Clause 4, Article 2 of this Decree;

m/ District-level People’s Committees shall propose the establishment of the organizations defined at Point a, Clause 5, Article 2 of this Decree.

Article 8.Consultation with related agencies and organizations

An agency or organization proposing the establishment of an administrative organization shall send a draft scheme, draft report and draft document of the agency or person competent to decide on such establishment to related agencies and organizations as prescribed by law to collect their written opinions on the establishment of the administrative organization before forwarding them to a competent agency for appraisal.

Article 9.Dossiers for establishment of administrative organizations

1. A dossier to be sent to the appraisal agency or organization must comprise:

a/ A written request for appraisal, signed and affixed with the seal of the agency or organization proposing such establishment as prescribed;

b/ A draft report on establishment of the administrative organization;

c/ A draft scheme on establishment of the administrative organization;

d/ A draft document of the agency or person competent to decide on the establishment of administrative organizations;

dd/ Written opinions of related agencies on the establishment of the administrative organization;

e/ A report of the agency or organization proposing the establishment of the administrative organization on the acceptance and clarification of opinions of related agencies.

2. A dossier to be submitted to the agency or person competent to decide on the establishment of administrative organizations must comprise:

a/ A report of the agency or organization proposing the establishment of the administrative organization;

b/ A scheme on establishment of the administrative organization;

c/ A draft document of the agency or person competent to decide on the establishment of administrative organizations;

d/ A written appraisal of the competent agency;

dd/ A report of the agency or organization proposing the establishment of the administrative organization on the acceptance and clarification of opinions of the appraisal agency;

e/ A report of the agency or organization proposing the establishment of the administrative organization on the acceptance and clarification of opinions of related agencies (enclosed with the latter’s written opinions), and other documents related to the establishment of the administrative organization;

g/ A written notification of the competent authority’s opinions, in case of establishment of administrative organizations defined at Point a of Clause 2, or Point a of Clause 3, Article 2 of this Decree, which increases the number of administrative organizations of ministries or government-attached agencies.

Article 10.Order of forwarding and receiving dossiers for establishment of administrative organizations

1. An agency or organization proposing the establishment of an administrative organization shall each send 1 set of dossier on establishment of an administrative organization to the appraisal agency or organization defined in Article 11 of this Decree for appraisal; the document or report on the establishment needs to state in the box of recipients only the names of related agencies for coordination or for information.

2. An agency or organization receiving dossiers on establishment of administrative organizations shall make a list of dossiers as prescribed.

3. The dossier must be the original signed and affixed with the seal of the agency or organization proposing the establishment of an administrative organization and other relevant documents as prescribed in Clause 1, Article 9 of this Decree.

Article 11.Appraisal for establishment of administrative organizations

1. Appraisal agencies or organizations

For the establishment of administrative organizations, appraisal agencies are prescribed below:

a/ The Ministry of Home Affairs is the appraisal agency for administrative organizations which fall under the jurisdiction of the Government or Prime Minister;

b/ The organization and personnel department (bureau or board) of a ministry or government-attached agency is the appraisal agency for administrative organizations which fall under the jurisdiction of ministers, heads of ministerial-level agencies or heads of government-attached agencies;

c/ A specialized agency advising on the state management of the apparatus organization under a provincial-level People’s Committee is the appraisal agency for administrative organizations which fall under the jurisdiction of the provincial-level People’s Committee;

d/ A specialized agency advising on the state management of the apparatus organization under a district-level People’s Committee is the appraisal agency for administrative organizations which fall under the jurisdiction of the district-level People’s Committee.

2. The verification contents cover:

a/ Necessity of and legal grounds for the establishment of an administrative organization;

b/ Objectives, scope, objects, name, organizational form, legal status, functions, tasks, powers and organizational structure of the administrative organization;

c/ Dossier and procedures for establishment of the administrative organizations as prescribed;

d/ Conditions to ensure the operation of the administrative organization after it is established;

dd/ Satisfaction of the law-prescribed criteria on establishment of the administrative organization;

e/ Feasibility of the establishment of the administrative organization;

g/ Draft document of agency or person competent to decide on the establishment of the administrative organization.

For issues which remain unclear or involve divergent opinions, the appraisal agency or organization shall request the agency or organization proposing the establishment of the administrative organization to make additional explanations or shall, under authorization of the person competent to decide on the establishment of administrative organizations, hold a meeting with the scheme-submitting agency or organization and related agencies to clarify such issues and report thereon to the competent agency or person for decision.

3. In case the decision on the establishment of an administrative organization is a legal document, the appraisal must also comply with the law on promulgation of legal documents.

Article 12.Reports on establishment of administrative organizations

1. In case the establishment of an administrative organization defined at Point a of Clause 2, or Point a of Clause 3, Article 2 of this Decree increases the number of administrative organizations in the organizational structure of a ministry or government-attached agency, the agency proposing such establishment shall report the case to the Government for submission to a competent authority for opinion.

2. Order and procedures for reporting on the establishment of an administrative organization:

a/ The agency proposing the establishment of an administrative organization defined in Clause 1 of this Article shall formulate a draft scheme on the establishment according to Article 6, and a draft report on the establishment according to Article 7, and send them for opinion according to Article 8, of this Decree;

b/ The agency proposing the establishment of the administrative organization shall sum up, accept and clarify opinions of related agencies for finalization of the draft scheme and draft report, and send them to the Ministry of Home Affairs and Ministry of Justice for appraisal (enclosed with the written opinions of related agencies);

c/ The agency proposing the establishment of the administrative organization shall sum up, accept and clarify the appraisal opinions of the Ministry of Home Affairs and Ministry of Justice, and finalize the scheme, then submit them to the Government for opinion;

d/ The agency proposing the establishment of the administrative organization shall accept and clarify opinions of the Government members for finalization of the scheme, and submit it to a competent authority for opinion.

Article 13.Decisions on establishment of administrative organizations

1. The agency or person competent to decide on the establishment of an administrative organization shall base on the written request for establishment, written appraisal and written notification of opinions of a competent authority (for the establishment of administrative organizations defined at Point a of Clause 2, and Point a of Clause 3, Article 2 of this Decree which increases the number of administrative organizations of a ministry or government-attached agency) for decision on establishment of the administrative organization.

2. The form of an establishment document must conform to the competence to decide on the establishment of administrative organizations and comply with other relevant legal documents.

Article 14.Processing of dossiers and time limit for settlement of the establishment of administrative organizations

1. Appraisal for establishment of administrative organizations:

a/ For the establishment of administrative organizations falling under the jurisdiction of the Government or Prime Minister, the appraisal time limit is 15 days after the receipt of a complete dossier as prescribed, and the appraisal agency or organization shall send a written appraisal to the agency proposing the establishment of the administrative organization;

b/ For the establishment of administrative organizations falling under the jurisdiction of ministers, heads of ministerial-level agencies, heads of government-attached agencies, or local administrations, the appraisal time limit is 10 days after the receipt of a complete dossier as prescribed, and the appraisal agency or organization shall send a written appraisal to the agency proposing the establishment of the administrative organization.

2. Decisions on establishment of administrative organizations

Within 10 days after the agency or organization proposing the establishment of an administrative organization completes the dossier based on opinions of the appraisal agency or organization and submits it under regulations, the competent agency or person shall issue a decision on establishment of the administrative organization.

If the agency or person competent to decide on the establishment of administrative organizations disagrees with the establishment of an administrative organization, it/he/she shall send its/his/her written opinions (clearly stating the reason) to the agency or organization proposing the establishment of the administrative organization.

Section 2

REORGANIZATION OR DISSOLUTION OF ADMINISTRATIVE ORGANIZATIONS

Article 15.Schemes and reports on the reorganization of administrative organizations

1. A scheme on reorganization of an administrative organization must have the following contents:

a/ The contents prescribed in Clause 2, Article 6 of this Decree;

b/ The actual state of organization and operation of the administrative organization before it is reorganized;

c/ A plan to handle issues related to the organizational apparatus, personnel, finance, property and land, and other relevant issues;

d/ Documents issued by competent agencies and organizations certifying issues related to finance, property, land, loans and payable debts as well as other relevant issues (if any);

dd/ Responsibilities of the head of the administrative organization and related persons for the realization of the plan on reorganization of the administrative organization, and the time limit for handling relevant issues.

2. The contents of a report on reorganization of an administrative organization are similar to those of a report on establishment of an administrative organization prescribed in Article 7 of this Decree.

Article 16.Schemes and reports on dissolution of administrative organizations

1. A scheme on dissolution of an administrative organization must have the following contents:

a/ Necessity of and legal grounds for the dissolution;

b/ A plan to handle issues related to the organizational apparatus, personnel, finance, property and land, and other relevant issues;

c/ Documents issued by competent agencies or organizations certifying issues related to finance, property, land, loans and payable debts, and other relevant issues (if any);

d/ Responsibilities of the head of the administrative organization and related persons for the realization of the scheme on dissolution of the administrative organization, and the time limit for handling relevant issues.

2. The contents of a report on dissolution of an administrative organization are similar to those of a report on establishment of an administrative organization prescribed in Article 7 of this Decree.

Article 17.Dossiers and order and procedures for settlement of the reorganization or dissolution of administrative organizations

1. A dossier for reorganization or dissolution of an administrative organization must comprise:

a/ A scheme on reorganization or dissolution of an administrative organization;

b/ A report on reorganization or dissolution of an administrative organization;

c/ A draft document issued by an agency or person competent to decide on the reorganization or dissolution of administrative organizations;

d/ Documents issued by competent agencies or organizations certifying the fulfillment of obligations related to finance, property, land, loans and payable debts, and other relevant issues (if any).

2. The consultation with related agencies and organizations; procedures for sending and receiving dossiers; verification; processing of dossiers, and time limit for settlement of the reorganization or dissolution of administrative organizations are the same as those for the establishment of administrative organizations.

Chapter III

COMPETENCE AND RESPONSIBILITY

Article 18.Competence of the Government and Prime Minister

1. The Government shall promulgate regulations on establishment, reorganization or dissolution of administrative organizations.

2. The Government shall prescribe the criteria on establishment of administrative organizations in accordance with law.

3. The Government shall decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point a of Clause 2, and Point a of Clause 3, Article 2 of this Decree.

4. The Prime Minister shall decide on the establishment, reorganization or dissolution of the administrative organizations defined in Clause 1, and at Point b of Clause 2, Article 2 of this Decree (except organizations of the General Staff and General Political Department of the Vietnam People’s Army); and decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point d of Clause 4, and Point b of Clause 5, Article 2 of this Decree as prescribed by law.

Article 19.Competence and responsibilities of the Minister of Home Affairs

1. To submit to competent agencies or persons for promulgation or to promulgate according to his/her competence legal documents on administrative organizations, documents providing professional guidance, forms and reporting regime to serve the management of administrative organizations.

2. To submit to the Government general criteria on establishment, reorganization or dissolution of the administrative organizations defined in Clauses 2 thru 5, Article 2 of this Decree.

3. To sum up and update information on administrative organizations throughout the country and report thereon to competent authorities as prescribed by law.

Article 20.Competence and responsibilities of ministers, heads of ministerial-level agencies and heads of government-attached agencies

1. Ministers and heads of ministerial-level agencies have the following competence and responsibilities:

a/ To submit to competent agencies or persons for promulgation or to promulgate according to their competence specific regulations on criteria on establishment of administrative organizations according to branches or domains under their respective management as prescribed by law;

b/ To decide on the establishment, reorganization or dissolution of the administrative organizations defined at Points c, d, dd, e, g and h, Clause 2, Article 2 of this Decree, or to decentralize general directors to decide on the establishment of organizations defined at Point h, Clause 2, Article 2 of this Decree.

2. Heads of government-attached agencies shall decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point b, Clause 3, Article 2 of this Decree.

Article 21.Competence and responsibilities of provincial-level People’s Committees and district-level People’s Committees

1. Provincial-level People’s Committees shall propose provincial-level People’s Councils to decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point a, Clause 4, Article 2 of this Decree.

2. Provincial-level People’s Committees shall decide on the establishment, reorganization or dissolution of the administrative organizations defined at Points b, c and dd, Clause 4, Article 2 of this Decree; and decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point d, Clause 4, Article 2 of this Decree as prescribed by law.

3. District-level People’s Committees shall propose district-level People’s Councils to decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point a, Clause 5, Article 2 of this Decree.

4. District-level People’s Committees shall decide on the establishment, reorganization or dissolution of the administrative organizations defined at Point b, Clause 5, Article 2 of this Decree as prescribed by law.

Article 22.Regime on provision of information and reporting on administrative organizations

Ministries, ministerial-level agencies, government-attached agencies, other administrative organizations established by the Government or Prime Minister, and provincial-level People’s Committees shall:

1. Provide information on administrative organizations under their respective management for related agencies, organizations and individuals in accordance with law.

2. Periodically send reports on data on administrative organizations under their respective management to the Ministry of Home Affairs before December 20 every year for summarization according to regulations.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 23.Transitional provisions

1. In case agencies or organizations sent schemes and reports to agencies or persons competent to decide on the establishment, reorganization or dissolution of administrative organizations before the effective date of this Decree but such competent agencies or persons have not yet issued decisions on the establishment, reorganization or dissolution of administrative organizations, they shall continue to comply with the Government’s Decree No. 83/2006/ND-CP of August 17, 2006, prescribing the order and procedures for establishment, reorganization or dissolution of state administrative organizations.

2. Particularly for the establishment of administrative organizations defined at Point a of Clause 2, or Point a of Clause 3, Article 2 of this Decree, which increases the number of administrative organizations in the organizational structure of a ministry or government-attached agency, the agency or organization proposing such establishment shall report thereon and collect opinions under Article 12 of this Decree.

Article 24.Effect

This Decree takes effect on January 10, 2019, and replaces the Government’s Decree No. 83/2006/ND-CP of August 17, 2006, prescribing the order and procedures for the establishment, reorganization or dissolution of state administrative organizations.

Article 24.Implementation responsibility

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, heads of agencies established by the Government or Prime Minister, provincial-level People’s Councils and People’s Committees, district-level People’s Councils and People’s Committees, and related agencies and organizations shall implement this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC