Resolution No. 03/2003/NQ-HDTP dated April 18, 2003 of the Judges' Coucil of the Supereme People's Court guiding the implementation of a number of Provisions of the Ordinance on procedures for handling administrative cases

RESOLUTION

GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE ORDINANCE ON PROCEDURES FOR HANDLING ADMINISTRATIVE CASES

THE COUNCIL OF JUDGES OF THE SUPREME PEOPLE'S COURT

Pursuant to the Law on Organization of People's Courts;

In order to properly and uniformly implement the provisions of the Ordinance on Procedures for Handling Administrative Cases, which was amended and supplemented by the Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Procedures for Handling Administrative Cases (hereinafter referred to as the Ordinance for short);

RESOLVES:

1. Regarding the provision on "persons competent to settle first-time complaints"

"Persons competent to settle first-time complaints" defined in Article 2 of the Ordinance are State administrative agencies, competent persons in State administrative agencies or heads of agencies or organizations that have issued one of the administrative decisions, disciplinary decisions on job dismissal or taken one of the administrative acts defined in Article 11 of the Ordinance.

2. Regarding the provisions in Article 2 of the Ordinance

According to the provisions in Article 2 of the Ordinance, depending on each specific case of the following cases, the court shall base itself on the relevant provisions at Point 3, 5 or 6, Article 31 of the Ordinance to return lawsuit bills:

b/ Lawsuit initiators have lodged complaints with the persons competent to settle first-time complaints, but the time limit for settling first-time complaints has not yet expired and decisions on first-time complaint settlement have not yet been issued;

3. Regarding administrative decisions against which lawsuits are initiated to request the court to handle administrative cases

Administrative decisions against which lawsuits are initiated to request the court to handle administrative cases must be first-time ones. Apart from the administrative decisions issued for the first time by State administrative agencies or competent persons therein upon settling or handling specific matters under their respective competence, the following administrative decisions shall also be regarded as first-time ones:

a/ After the issuance of administrative decisions about which no complaints are lodged yet, the State administrative agencies or competent persons therein, that had issued such administrative decisions, have issued other administrative decisions to supersede the previous ones, the newly issued decisions shall be regarded as first-time ones;

b/ After the issuance of administrative decisions about which no complaints are lodged yet, the State administrative agencies or competent persons therein, that had issued such administrative decisions, have issued other administrative decisions to amend and/or supplement a number of points of the previous ones, the previous administrative decisions' parts which are neither amended nor annulled, as well as administrative decisions amending and/or supplementing a number of points of the previous ones shall all be regarded as first-time administrative decisions;

It must be noted that for above-said cases a and b, if the later decisions are issued after the State administrative agencies or competent persons therein have received written complaints and such decisions are the outcome of complaint settlement, such later decisions shall be regarded as first-time complaint settlement decisions but not first-time administrative decisions;

c/ After the persons competent to settle further complaints or the People's Courts competent to settle administrative cases issue decisions to partially or wholly cancel the complained or litigated administrative decisions; the State administrative agencies or competent persons therein shall be assigned to rehandle the cases regarding the part or the whole of the already canceled administrative decisions, and the result of the re-settlement is that such State administrative agencies or competent persons therein have issued new administrative decisions, such new decisions shall be regarded as first-time administrative decisions;

d/ Persons competent to settle further complaints, apart from settling complaints about administrative decisions, shall also decide on one or some matters which are totally new and not yet included in the complained decisions, the parts of such decisions on one or some totally new matters shall be regarded as first-time administrative decisions.

For example: When handling an administrative violation, the president of a commune-level People's Committee issues a decision to impose a fine of VND 400,000. The sanctioned person lodges the first-time complaint and the commune-level People's Committee president still holds on to such administrative sanctioning decision. Then, the sanctioned person lodges his complaint with the person competent to settle further complaints who is president of district-level People's Committee. The result of settlement of the further complaint is that the district-level People's Committee president, apart from deciding to retain the commune-level People's Committee president's decision on sanctioning the administrative violation, decides to confiscate the means used in the administrative violation. In this case the district-level People's Committee president's decision on confiscation of means used in the administrative violation shall be regarded as first-time administrative decision.

For example: When handling an administrative violation, the president of a commune-level People's Committee issues a decision to impose a fine of VND 10 million and confiscate the means used for committing such administrative violation, valued at VND 5 million. The sanctioned person lodges the first-time complaint and the commune-level People's Committee president holds on to such administrative sanctioning decision. Then, the sanctioned person lodges his complaint with the person competent to settle further complaints who is president of district-level People's Committee. The result of the settlement of the further complaint is that the district-level People's Committee president decides to cancel the commune-level People's Committee president's decision on sanctioning the administrative violation due to its violation of the competence to handle administrative violations prescribed in Article 28 of the Ordinance on Handling of Administrative Violations. Basing himself/herself on Article 29 of the Ordinance on Handling of Administrative Violations, the district-level People's Committee president shall issue a new decision on sanctioning the administrative violation (which may have contents basically identical to those of the commune-level People's Committee president's decision on sanctioning administrative violation). In this case, the district-level People's Committee president's decision on sanctioning the administrative violation shall be regarded as first-time administrative decision.

4. Regarding administrative acts against which lawsuits are initiated to request the court to handle administrative cases

According to the provisions at Point 2, Article 4 and Article 11 of the Ordinance, administrative acts against which lawsuits are initiated to request the court to handle administrative cases include acts of the State administrative agencies or competent persons therein while performing their tasks or public duties in affairs or domains specified at Points 2, 3, 5, 6, 7, 8 and 9, Article 11 of the Ordinance and other affairs or domains prescribed by law.

5. Regarding the identification of defendants in administrative cases

According to the provisions at Point 6, Article 4 of the Ordinance, defendants are individuals, State agencies and/or organizations that issue administrative decisions, take administrative acts or issue disciplinary decisions on job dismissal, against which lawsuits are initiated. Therefore, to correctly identify defendants to be individuals, State agencies or organizations, the law provisions on the competence to handle such cases shall be based on.

For example: There exist two administrative decisions against which lawsuits are initiated to request the court to handle administrative cases and which have been both signed by the president of a district-level People's Committee (one on sanctioning the administrative violation and another on recovery of land from a household). On the basis of law provisions on the competence to handle such cases, the defendant in the administrative case involving the lawsuit against the decision on sanctioning the administrative violation shall be the individual being the president of the district-level People's Committee (according to Article 29 of the Ordinance on Handling of Administrative Violations), while the defendant in the administrative case involving the lawsuit against the decision on recovery of land from the household shall be the district-level People's Committee (according to Articles 24 and 26 of the Land Law).

It must be noted that competent persons in State administrative agencies defined in Article 4 of the Ordinance are individuals with specific titles and/or posts, and according to law provisions, only individuals with such titles and/or posts are competent to issue administrative decisions or take administrative acts. Despite the fact that an administrative decision or act may be signed or performed by a specific individual (Mr. Nguyen Van A or Mrs. Tran Thi X), but the signing or performance of such administrative decision or act must be effected in the name of a competent post or title (for example: president of district-level People's Committee or ward police chief); for that reason, it can only be said that an administrative decision or administrative act is of the district-level People's Committee president or ward police chief, but not of any specific individual (Mr. Nguyen Van A or Mrs. Tran Thi X). So, in cases where an individual, who has issued administrative decisions or taken administrative acts, is transferred to another job or retires, and such administrative decisions or administrative acts are now subject to lawsuits, the individual elected, nominated or appointed to such title or post must inherit the former's rights and duties. Therefore, it is him/her who is the very defendant.

6. Regarding the settlement of claims for damage compensations in administrative cases

According to Article 3 (Paragraph 1) of the Ordinance, administrative lawsuit initiators may concurrently claim for damage compensations. Damage in this case is the actual damage caused by the administrative decisions or disciplinary decisions on job dismissal or the administrative acts. If administrative lawsuit initiators make claims for damage compensations, they shall be obliged to supply evidences. In case of necessity, the court may gather more evidences to ensure the accuracy of the case handling. In cases where administrative lawsuit initiators claiming for damage compensation cannot furnish evidences yet, the part of damage compensation claim shall be separated for later handling in another civil case according to the general procedures when the involved parties so request.

For example: A person initiates a lawsuit to request the court to cancel an administrative decision on confiscation of a means used in an administrative violation, and concurrently claims for compensation for the loss or damage of some parts of such means or for actually lost income due to the seizure of the means. If the court considers that the decision on confiscation of the means used in the administrative violation is unlawful and the lawsuit initiator's damage claim is justifiable (due to adequate furnishment of evidences by the lawsuit initiator, availability of witnesses, etc.), it shall decide to cancel such administrative decision, and at the same time decide on the damage compensation. If the lawsuit initiator cannot prove the loss or damage of certain parts of such means or the actual income loss, the court shall only decide to cancel such administrative decision and put aside the damage compensation claim to be settled in another civil case according to the general procedures when the involved parties so request.

7. Regarding the settlement in cases where defendants amend or cancel the litigated administrative decisions or disciplinary decisions on job dismissals.

According to the provisions in Article 3 (Paragraph 4) and Article 20 of the Ordinance, in the course of handling administrative cases the defendants may amend or cancel the litigated administrative decisions or dismissal decisions. As a result, if in the course of handling administrative cases the defendants issue decisions to amend or cancel the litigated administrative decisions or dismissal decisions, the court shall have to notify such to the lawsuit initiators, and should distinguish between the following cases:

a/ If the lawsuit initiators agree with such amending or canceling decisions and withdraw their lawsuit bills, the court shall base itself on Point b, Clause 1, Article 41 of the Ordinance and issue decisions to suspend the case handling;

b/ If the lawsuit initiators disagree with such amending or canceling decisions and do not withdraw their lawsuit bills, the court shall continue handling the cases according to the general procedures. In this case, the court shall have to examine the legality of the litigated decisions and the decisions amending the litigated decisions in order to issue, on a case-by-case basis, lawful decisions.

8. Regarding the definition of "works and other solid architectural objects" at Point 2, Article 11 of the Ordinance

c/ Regardless of the values of residential houses, works or other solid architectural objects, the court shall accept all lawsuits against administrative decisions or administrative acts in the application of the measure of forcible dismantlement for handling according to the general procedures whenever the dismantled objects are correctly identified as residential houses, construction works or other solid architectural objects.

9. Regarding administrative decisions and administrative acts in the domain of land management

Administrative decisions and administrative acts in the domain of land management defined at Point 5, Article 11 of the Ordinance include administrative decisions and administrative acts mentioned at Points 1 and 2, Article 4 of the Ordinance in the implementation of the land management contents prescribed in Article 13 and other relevant provisions of the Land Law.

The People's Committees' decisions on settlement of land disputes are administrative decisions in the land management domain and the involved parties may initiate administrative cases according to the general procedures.

10. Regarding the provisions at Point 7, Article 11 of the Ordinance

When implementing the provisions at Point 7, Article 11 of the Ordinance, it must be noted that the court is only competent to handle administrative cases involving lawsuits against administrative decisions or administrative acts related to the asset requisition, compulsory purchase or confiscation, issued or taken after October 2, 1991 (the date of issuance of Decision No. 297/CT by the Chairman of the Council of Ministers, now the Prime Minister).

11. Regarding the provisions at Point 10, Article 11 of the Ordinance

The provisions at Point 10, Article 11 of the Ordinance should be understood that, in addition to administrative cases prescribed at Points from 1 through 9, Article 11 of the Ordinance, if a certain legal document provides for the initiation of lawsuits to request the court to handle certain administrative decisions or administrative acts according to the law provisions on procedures for handling administrative cases, the lawsuits against such administrative decisions or administrative acts shall also be regarded as administrative cases prescribed at Point 10, Article 11 of the Ordinance and fall under the court's handling competence according to the general procedures. So, when there are lawsuits against administrative decisions or administrative acts not falling in the cases prescribed at Points from 1 through 9, Article 11 of the Ordinance, the court should check whether any legal documents providing for the right to initiate lawsuits against such administrative decisions or administrative acts according to the law provisions on the procedures for handling administrative cases are available or not. If there

According to the provisions of a number of already synthesized current legal documents, the following lawsuits against administrative decisions or administrative acts shall fall in the cases prescribed at Point 10, Article 11 of the Ordinance and be, therefore, administrative cases under the court's handling competence according to the general procedures:

a/ Lawsuits against administrative decisions or administrative acts related to the establishment of industrial property rights (in the granting of protection titles, international registration of trademarks under the Madrid Agreement or recognition of well-known trademarks) or the granting of non-voluntary licenses (according to Article 27 and Clause 5, Article 51 of the Government's Decree No. 63/CP of October 24, 1996 prescribing in detail the industrial property, which was amended and supplemented under the Government's Decree No. 06/2001/ND-CP of February 1, 2001);

d/ Lawsuits against administrative decisions or administrative acts in the refusal to make notarization and authentication in contravention of law provisions (Article 69 of the Government's Decree No. 75/2000/ND-CP of December 8, 2000 on notarization and authentication);

e/ Lawsuits against administrative decisions or acts of violating the administrative legislation of customs offices and customs officers according to the law provisions (Clause 3, Article 54 of the Government's Decree No. 101/2001/ND-CP of December 31, 2001 detailing the implementation of a number of articles of the Customs Law on customs procedures, customs inspection and supervision regime);

f/ Lawsuits against administrative decisions on settling complaints by the provincial-level People's Committee presidents, the directors or chairmen of the Commendation and Discipline Councils of the Bar Associations, or decisions of the Executive Boards or the Commendation and Discipline Councils of the Bar Associations (Clause 2, Article 41 of the Ordinance on Lawyers);

12. Regarding the determination of competence of the court and persons competent to settle further complaints

In order to correctly implement the provisions in Clause 1, Article 13 of the Ordinance on competence, it is necessary to first of all examine to see if an administrative decision or administrative act is related to one or many persons (two or more persons). Depending on each specific case, the determination of the handling competence of the court or persons competent to settle further complaints shall be made as follows:

a/ If such administrative decision or administrative act is related to only one person who initiates an administrative lawsuit at a competent court and concurrently lodges a complaint with a person competent to settle further complaints, and the person competent to settle further complaints has not issued the complaint settlement decision, the handling thereof shall fall under the court's competence. The court shall accept the case for handling according to the general procedures, and at the same time notify such to the person competent to settle further complaints and request him/her to transfer all dossiers of complaint settlement to it (if any). If prior to the time the court accepts the case for handling, there had already existed a complaint settlement decision of the person competent to settle further complaints, the court shall return the lawsuit bill to the initiator according to Point 6, Article 31 of the Ordinance.

b/ If such administrative decision or administrative act is related to many persons, who all initiate administrative lawsuits at a competent court, and some or all of whom concurrently lodge complaints with a person competent to settle further complaints, and the person competent to settle further complaints has not issued complaint settlement decisions, the handling thereof shall fall under the court's competence and be effected as in the cases guided at Point a of this Section 12.

- In cases where only one or some persons initiate administrative lawsuits at the competent court, while other persons do not initiate administrative lawsuits

13. Regarding the handling in cases where the court has wrongly accepted administrative cases for handling (for the reason that those cases are not administrative cases or fall under the handling competence of other courts)

In cases where the court has wrongly accepted administrative cases for handling (for the reason that those cases are not administrative cases or fall under handling competence of other courts), the handling thereof shall be based on each specific case as follows:

a/ If in the course of handling an administrative case according to the first-instance procedures, the court detects that such case is actually not an administrative case (a civil, economic or labor case), though the handling thereof falls under its competence, it shall resettle such case according to the general procedures prescribed by the procedural law for the handling thereof, and at the same time notify such to the involved parties and the procuracy of the same level;

b/ If in the course of handling an administrative case according to the first-instance procedures, the court which has accepted the case detects that the handling of such case falls under another court's competence, it shall base itself on Clause 2, Article 13 of the Ordinance to cross out the acceptance and transfer the case dossier to a competent court, and at the same time notify such to the involved parties and the procuracy of the same level;

c/ If, upon adjudicating an administrative case according to the appellate procedures, the appellate court detects that such case falls within the cases guided at Point a or b of this Section 13, it shall base itself on Point c, Article 64 of the Ordinance to quash the first-instance judgment or decision for serious violation of the procedures and transfer the case dossier to the court with first-instance trial competence for first-instance handling of such case according to the general procedures prescribed by the procedural law for the handling of such case;

d/ If, upon adjudicating an administrative case according to the supervisory or review procedures, the court of supervisory or review trial level detects that such case falls within the cases guided at Point a or b of this Section 13, it shall base itself on Point 3, Article 72 of the Ordinance to quash the judgment or decision which has acquired legal effect for serious violation of legal proceedings and transfer the case dossier to the court with first-instance trial competence for first-instance handling of such case according to the general procedures prescribed by the procedural law for the handling of such case.

14. Regarding the determination of time point for calculating the time limit for lawsuit initiation

When implementing Clause 1, Article 30 of the Ordinance, it must be noted that in cases where administrative lawsuit initiators disagree with first-time complaint settlement decisions, they shall only have to lodge requests with the court to handle administrative cases within 30 days (or 45 days for deep-lying or remote areas or areas with difficult traveling conditions) after the date they receive first-time complaint settlement decisions, regardless of the time of issuance of such first-time complaint settlement decisions.

15. Regarding the People's Procuracy's participation in court sessions

Clause 3, Article 43 and Article 63 of the Ordinance prescribe that the procuracy should participate in court sessions or file its opinions in writing on administrative cases of some specific types. Now, under the provisions at Point 3, Article 21 of the Law on Organization of People's Procuracy, the People's Procuracy shall, upon inspecting the handling of administrative cases, have the following tasks and powers: "To participate in court sessions and present its opinions on the handling of cases"; therefore, from now on, upon accepting administrative cases, the court shall have to notify such to the procuracy of the same level and request it to nominate procurators to participate in court sessions. If procurators are absent, the court must postpone its sessions.

16. Regarding the court's decisions in first-instance administrative judgments

Clause 2, Article 49 of the Ordinance prescribes the principal contents of judgments. However, Point e of that Clause 2 only prescribes "decisions of the court" without specifying which kinds of decision. When adjudicating administrative cases, the court may, depending on each specific case, issue one or some of the following decisions:

d/ To compel the State administrative agencies to compensate for damage or revive the rights and legitimate interests of individuals, agencies or organizations infringed upon by unlawful administrative decisions or administrative acts;

e/ To accept requests of the initiators to rule out dismissal decisions; to compel the heads of agencies or organizations to perform their public duties according to the provisions of law; to compel the damage compensations or revival of the rights and legitimate interests of individuals infringed upon by unlawful dismissal decisions.

17. Regarding the suspension of the handling of administrative cases at the appellate stage

According to the provisions in Article 62 of the Ordinance, before carrying out appellate trials, the court may suspend the handling of cases according to the provisions of this Ordinance. Concurrently according to the provisions at Point e, Clause 2, Article 64 of the Ordinance, the appellate court may "quash first-instance judgments and decisions and suspend the handling of cases when one of the circumstances prescribed in Article 41 of this Ordinance appears." Therefore, in order to ensure the uniformity, the appellate courts shall, before opening appellate trial sessions if there appears one of the circumstances prescribed in Article 41 of the Ordinance, have to set up trial councils; and if the adjudicating results show that one of the circumstances prescribed in Article 41 of the Ordinance really exists, the appellate court shall quash the first-instance judgments and decisions and suspend the handling of cases. It must be noted that if the appellate court quashes first-instance judgments and suspends the handling of cases, it shall hand down appellate judgments. If it quashes first-instance decisions and suspends the handling of cases, it shall issue appellate decisions.

18. Regarding the implementation effect of the Resolution

a/ This Resolution was passed on April 18, 2003 by the Judges' Council of the Supreme People's Court and takes effect 15 days after its publication in the Official Gazette.

The Supreme People's Court's guidance on the matters guided in this Resolution promulgated before the effective date of this Resolution shall all be hereby annulled.

c/ For the court's judgments and decisions which have acquired legal effects before the effective date of this Resolution, the guidance in this Resolution shall not apply to lodge protests according to the supervisory or review procedures, except for cases where exist other grounds for protests.