Resolution No. 04/2006/NQ-HDTP dated August 4, 2006 of the Judge's Council guiding the implementation of a number of Provisions of the Ordinance on procedures for settlement of administrative cases, which was amended and supplemented under the Ordinances of December 25, 1998, and April 5, 2006, amending and supplementing a number of Articles of the Ordinance on procedures for settlement of administrative cases

RESOLUTION

GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE ORDINANCE ON PROCEDURES FOR SETTLEMENT OF ADMINISTRATIVE CASES, WHICH WAS AMENDED AND SUPPLEMENTED UNDER THE ORDINANCES OF DECEMBER 25, 1998, AND APRIL 5, 2006, AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE ORDINANCE ON PROCEDURES FOR SETTLEMENT OF ADMINISTRATIVE CASES

THE JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT

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

In order to properly and uniformly implement the provisions of the Ordinance on Procedures for Settlement of Administrative Cases, which was amended and supplemented under the Ordinances of December 25, 1998, and April 5, 2006, amending and supplementing a number of articles of the Ordinance on Procedures for Settlement of Administrative Cases (hereinafter referred to as the Ordinance for short);

After getting the consent of the Chairman of the Supreme People's Procuracy and the Justice Minister,

RESOLVES:

1. Regarding the provisions of Article 2 of the Ordinance

1.1. The provision on "persons competent to settle first-time complaints"

"Persons competent to settle first-time complaints" provided for in Article 2 of the Ordinance mean state administrative agencies, competent persons in state administrative agencies or heads of agencies or organizations in one of the following cases:

a/ Who have issued one of administrative decisions or disciplinary decisions on forced job severance, or committed one of administrative acts defined in Article 11 of the Ordinance;

b/ Who directly manage cadres or officials who have issued one of administrative decisions or committed one of administrative acts defined in Article 11 of the Ordinance.

1.2. The provisions of Point c, Clause 1, Article 2 of the Ordinance

a/ Upon receipt of lawsuits against administrative decisions or administrative acts, for which the competence to settle first-time complaints belongs to ministers or heads of ministerial-level agencies, the courts shall base themselves on Article 11 of the Ordinance to check whether such lawsuits fall under their handling jurisdiction. In cases where such lawsuits fall under their handling jurisdiction, the courts shall proceed to open files for the cases according to common procedures if the lawsuit initiators had already lodged complaints with ministers or heads of ministerial-level agencies and the time limit for settlement of first-time complaints had expired while the complaints have not been settled or have been settled under decisions on settlement of first-time complaints.

b/ Upon receipt of lawsuits against administrative decisions or administrative acts, for which the settlement of first-time complaints falls under the competence of presidents of provincial-level People's Committees, the courts must base on Articles 25 and 39 of the Law on Complaints and Denunciations to consider them, specifically as follows:

b.1/ For administrative decisions or administrative acts with contents falling under the state management rights of ministries, ministerial-level agencies or government-attached agencies, the courts shall proceed to open files for the cases according to common procedures if the lawsuit initiators had lodged their first-time complaints to presidents of provincial-level People's Committees but past the settlement time limit provided for by the law on complaints and denunciations their complaints have not been settled or have been settled under decisions on settlement of first-time complaints and the complaints were not further lodged to persons competent to settle second-time complaints;

b.2/ For administrative decisions or administrative acts with contents not falling under the state management rights of ministries, ministerial-level agencies or government-attached agencies, the courts shall proceed to open files for the cases according to the common procedures if the lawsuit initiators had lodged their complaints to presidents of provincial-level People's Committees but past the settlement time limit prescribed by the law on complaints and denunciations their complaints have not been settled or have been settled under decisions on settlement of first-time complaints.

1.3. Application of Point d, Clause 1, Article 2 of the Ordinance

Upon receipt of lawsuits against administrative decisions or administrative acts, for which the second-time complaints have been settled, it is necessary to make the distinction as follows:

a/ For cases which had arisen prior to 00:00 hrs of June 1, 2006, and the complainants had lodged their complaints to persons competent to settle second-time complaints and the time limit for settlement of second-time complaints under the provisions of law on complaints and denunciations had expired before 00:00 hrs of June 1, 2006, while the complaints had not been settled (except for cases guided in Item 13.1, Section 13 of this Resolution) or had been settled before 00:00 hrs of June 1, 2006, but the complainants disagreed with the settlement, if they initiate administrative cases, the courts shall base on Point a, Clause 1, Article 31 of the Ordinance to return the lawsuit petitions to the initiators.

b/ For cases which had arisen before 00:00 hrs of June 1, 2006, and the complainants had lodged their complaints to persons competent to settle second-time complaints and the time limit for settlement of second-time complaints as prescribed by the law on complaints and denunciations had expired after 00:00 hrs of June 1, 2006, but the complaints had not been settled or have been settled after 00:00 hrs of June 1, 2006, but the complainants disagreed with the settlement, if they initiate administrative cases, the courts shall base on the provisions of the Ordinance to proceed to open files for the cases according to common procedures.

1.4. Handling of lawsuits initiated for administrative cases

Immediately after receipt of lawsuits for administrative cases, the court presidents or deputy-court presidents authorized by the former, the presiding judges or deputy presiding judges authorized by the former shall assign a judge to examine the lawsuits. Within five working days after the receipt of lawsuits, the judges shall examine the cases to see which type of lawsuits they belong to under the provisions of Article 11 of the Ordinance and compare them with the conditions for initiating administrative cases provided for in Article 2 of the Ordinance in order to:

a/ Proceed to open files for the cases according to common procedures, if the conditions for initiating administrative cases are fully met;

b/ Return the lawsuits to the initiators and clearly state the reasons therefor, if the conditions for initiating the administrative cases are not fully met.

Example 1: Mr. Nguyen Van A takes action against a decision on sanctioning him for an administrative violation, issued by the president of the People's Committee of district S, province D, and Mr. A had complained with the president of the People's Committee of district S, but the time limit for settlement of first-time complaints has not yet expired and the president of the People's Committee of district S has not yet issued a decision on settlement of the complaint, the court shall base on Point a, Clause 1, Article 2 and Point c, Clause 1, Article 31 of the Ordinance to return the lawsuit petition to Mr. A.

Example 2: Mr. Tran B is a judgment enforcer of district D, province Q, who files his statement for action against the disciplinary decision on forced job severance against him by the director of the Justice Service of province Q, and Mr. B had already lodged his complaint to the director of the Justice Service of province Q, but the latter has not yet issued a decision to settle the complaint or has issued the decision but Mr. B disagreed and further complained with the Justice Minister who has issued a decision on settlement of the complaint, the court shall base on Clause 4, Article 2 and Point c, Clause 1, Article 31 of the Ordinance to return the lawsuit petition to Mr. B.

2. Administrative decisions subject of lawsuits to request the courts to settle administrative cases

Administrative decisions being subject of lawsuits to request the courts to settle administrative cases must be first-time administrative decisions. In addition to administrative decisions issued for the first time by state administrative agencies or competent persons in state administrative agencies while handling or settling specific matters under their competence, the following administrative decisions shall also be regarded as first-time one:

a/ After issuing administrative decisions which are not yet complained about, the state administrative agencies or the competent persons in state administrative agencies that have issued such administrative decisions issue other decisions to replace the previous administrative decisions, the newly issued decisions shall be first-time administrative decisions;

b/ After issuing administrative decisions which have not yet been complained about, the state administrative agencies or the competent persons in state administrative agencies that have issued such decisions issue other decisions amending and supplementing a number of articles of the previous administrative decisions, the unamended or uncancelled parts of the previous administrative decisions and the decisions amending and supplementing a number of articles of the previous administrative decisions shall all be first-time administrative decisions;

It should be noted that for two above cases a and b, if the later decisions are issued after the state administrative agencies or the competent persons in state administrative agencies have received complaints and such decisions are the complaint settlement outcomes, the later decisions shall be first-time complaint settlement decisions, not first-time administrative decisions;

c/ After the people's courts competent to settle administrative cases issue decisions cancelling parts or whole of the complained administrative decisions; assign state administrative agencies or competent persons in state administrative agencies to re-settle the cases with regard to parts or whole of the cancelled administrative decisions and the re-settlement results are new decisions issued by the state administrative agencies or the competent persons in state administrative agencies, such new decisions shall be first-time administrative decisions;

d/ After the persons competent to settle second-time complaints issue complaint settlement decisions and the administrative-decision issuers have issued administrative decisions amending parts or whole of such administrative decisions, the decisions amending parts or whole of the previous administrative decisions and unamended parts of the previous administrative decisions shall all be first-time administrative decisions.

Example: The president of the People's Committee of Ward T, district H, city H issues a decision to administratively sanction Mr. with a fine of VND 400,000 and the additional sanctioning form of forced restoration of the initial state altered due to the administrative violation. Mr. A complains about this decision and the president of the People's Committee of Ward T has issued a complaint settlement decision, concluding to uphold his/her decision.

After Mr. A complains with the president of the People's Committee of district H, city H, the president of the People's Committee of district H issues a complaint settlement decision, concluding that the complained contents are partly true to the decision concerning the additional sanctioning form, and requests the president of the People's Committee of ward H to amend such decision.

The president of the People's Committee of ward T issues a new administrative violation-sanctioning decision, changing the additional sanctioning form of forced restoration of the initial state altered due to the administrative violation into the coercive application of measures to redress the environmental pollution caused by the administrative violation.

In this case, the previous administrative violation- sanctioning decision with the principal sanctioning form of VND 400,000-fine and the later administrative violation-sanctioning decision with the additional sanctioning form of coercive application of measures to redress the environmental pollution caused by the administrative violation of the president of the People's Committee of ward T shall all be first-time administrative decisions.

3. Administrative acts subject of lawsuits to request the courts to settle administrative cases

Under the provisions of Clause 2, Article 4 and Article 11 of the Ordinance, the administrative acts subject of lawsuits to request the courts to settle administrative cases shall include acts committed by state administrative agencies or competent persons in state administrative agencies of performing or not performing the tasks or official duties in the matters or domains specified in Clauses from 3 thru 17, Article 11 of the Ordinance or in other matters or domains prescribed by law.

4. Identification of respondents in administrative cases

Under the provisions of Clause 6, Article 4 of the Ordinance, respondents are individuals, agencies and organizations that have issued the complained administrative decisions, committed the complained administrative acts or issued disciplinary decisions on forced job severance; hence, in order to correctly identify whether the respondents are individuals, agencies or organizations, it is a must to base on the provisions of law on competence to settle such cases.

Example: There are two administrative decisions which are complained about and signed by district- level People's Committee presidents (one decision on sanctioning of an administrative violation and one decision on recovery of land of a household), for which the court is requested to settle administrative cases. Based on the legal provisions on competence to settle these cases, the respondent in the administrative case complaining about the administrative violation-sanctioning decision shall be the district-level People's Committee president personally (Article 29 of the Ordinance on Handling of Administrative Violations) while the respondent in the administrative case complaining about the decision on recovery of land of a household shall be the district-level People's Committee (Articles 37 and 38 of the Land Law).

It should be noted that the competent persons in state administrative agencies, defined in Article 4 of the Ordinance, shall be those having specific positions or titles and by law only such persons are competent to issue administrative decisions or perform administrative acts. Even though an administrative decision is signed or an administrative act is performed by a specific person (Mr. Nguyen Van A, Mrs. Tran Thi X), such administrative decision is issued or such administrative act is performed by such person in the capacity of a competent position or title (example: the president of the district People's Committee, chief of the ward police,'); therefore, such administrative decision or administrative act can only be labelled as that of the district People's Committee president or ward police chief, not of a specific person (Mr. Nguyen Van A, Mrs. Tran Thi X). Therefore, in case the persons who had issued administrative decisions or performed administrative acts have been transferred to other places of work or have retired and such administrative decisions or acts are complained about, the persons newly elected, nominated or appointed to such positions or titles shall inherit the rights and obligations, and become the very respondents.

5. Settlement of claims for damages in administrative cases

Under the provisions of Article 3 (paragraph 1) of the Ordinance, the respondents in administrative cases can simultaneously claim compensations for damage. The damage in this case is the actual damage caused by the administrative decision or disciplinary decision on forced job severance or by the administrative act. If the administrative case initiators claim compensations for damage, they are obliged to supply evidences. In case of necessity, the courts may gather additional evidences to ensure the accurate settlement of the cases. The gathering of evidences in this case shall comply with the provisions of the Civil Procedure Code. Where the administrative case initiators cannot supply evidences yet, the claim for damages shall be separated for later settlement in other administrative cases according to common procedures, when so requested by the involved parties.

Example: A person initiates a lawsuit to request the court to cancel a decision on confiscation of his/her means used for commission of an administrative violation and at the same time to claim for damages as some parts of the means were lost or damaged or his/her actual incomes were lost due to the seizure of his/her means. If the court deems that the decision on confiscation of the means used for commission of the administrative violation is illegal and deems that the lawsuit initiator's claim for damages is well grounded (with full evidences supplied by the complainant, with witnesses,'), the court shall decide to cancel such administrative decision and at the same time decide on the compensation for damage; if the lawsuit initiator cannot yet prove which parts of the means are lost or damaged and which actual income amounts were lost, the court shall only decide to cancel such administrative decision and leave the claim for damages for settlement in another civil case according to common procedures, when so requested by the involved parties.

6. Settlement of cases where respondents amend or cancel administrative decisions or disciplinary decisions on forced job severance which are complained about

Under the provisions of Article 3 (paragraph 4) and Article 20 of the Ordinance, in the course of settlement of administrative cases, respondents may amend or cancel the complained administrative decisions or disciplinary decisions on forced job severance; therefore, in the course of settlement of administrative cases, if respondents obtain decisions on amending or cancelling the complained administrative decisions or disciplinary decisions on forced job severance, the courts should notify such to the lawsuit initiators and should distinguish:

a/ If the lawsuit initiators agree with such amending or cancelling decisions and withdraw their lawsuits, the courts shall base on Point b, Clause 1, Article 41 of the Ordinance to issue decision to stop the settlement of the cases;

b/ If the lawsuit initiators disagree with such amending or cancelling decisions and decline to withdraw their lawsuits, the courts shall examine the legality of the complained decisions and the decisions to amend or cancel the complained decisions in order to make lawful decisions on a case-by-case basis.

7. The provisions of Article 11 of the Ordinance

7.1. On the concept of "works, other solid architectural objects" defined in Clause 5, Article 11 of the Ordinance

a/ "Work" must be steady and sustainable and the construction of which requires meticulousness, science, techniques or art. For example: A monument, a system in service of aquaculture'

b/ "Other solid architectural objects" means objects, besides dwelling houses, works, which are steadily and sustainably built and have long-term use value. For example: water wells, garages, churches, fence walls attached to dwelling houses, workshops, storehouses'

c/ Regardless of the value of dwelling houses, works or other solid architectural objects, only if there are complaints about administrative decisions, administrative acts in the application of measures of forced dismantlement, shall the courts open files for the cases according to common procedures and only need to identify whether they are truly dwelling houses, works or other solid architectural objects.

7.2. Regarding the provisions of Clause 9, Article 11 of the Ordinance

Upon the implementation of the provisions of Clause 9, Article 11 of the Ordinance, attention should be paid to the fact that the courts shall only have jurisdiction to settle administrative cases with regard to complaints about administrative decisions or administrative acts in the requisition, compulsory purchase or confiscation of assets, which were issued or taken after October 2, 1991 (when the Chairman of the Council of Ministers, now the Prime Minister, issued Decision No. 297/CT).

7.3. On administrative decisions, administrative acts in the domain of land management, specified in Clause 17, Article 11 of the Ordinance

Administrative decisions, administrative acts in the domain of land management, which the involved parties may initiate lawsuits against so that the courts shall settle the administrative cases shall include administrative decisions and administrative acts defined in Clauses 1 and 2, Article 4 of the Ordinance in case of land allotment, land lease, land recovery, land requisition, permission for land use purpose change; compensation, support, ground clearance, resettlement; grant or withdrawal of land use right certificates; extension of land use duration.

It should be noted that land management-related administrative decisions, administrative acts in the settlement of land disputes shall not, in all circumstances, be subject of initiating administrative cases.

7.4. On the provision of Clause 22, Article 11 of the Ordinance

a/ The provision of Clause 22, Article 11 of the Ordinance should be construed as that besides the lawsuits defined in Clauses from 1 thru 21, Article 11 of the Ordinance, if a legal document or a treaty to which the Socialist Republic of Vietnam is a contracting party provides legal actions for the courts to settle under the provisions of law on procedures for settlement of administrative cases with regard to complaints about any administrative decisions or acts, the lawsuits against such administrative decisions or acts shall fall under the jurisdiction of the courts for settlement according to common procedures.

b/ When lawsuits against administrative decisions or acts do not fall into one of the cases defined in Clauses from 1 thru 21, Article 11 of the Ordinance, the courts need to check to see whether there is any legal document or treaty to which the Socialist Republic of Vietnam is a contracting party on this domain provides the right to initiate lawsuits against such administrative decisions or administrative acts under the provisions of the law on procedures for settlement of administrative cases. In case there is a legal document or a treaty to which the Socialist Republic of Vietnam is a contracting party, which so provides for, the courts shall base on the provisions of Article 22, Article 11 of the Ordinance and the relevant provision of such legal document or treaty to open the file and settle the administrative cases according to common procedures; in cases where there is not any legal document or any treaty which so provides for, the courts shall base on Clause 1, Article 31 of the Ordinance to return the lawsuit petitions to the lawsuit initiators.

8. Regarding the provision of Point g, Clause 2, Article 12 of the Ordinance

The following cases falling under the jurisdiction of district-level courts can be picked up by provincial-level courts for settlement:

a/ Lawsuits against administrative decisions, administrative acts of district-level People's Committees, presidents of district-level People's Committees, which are complicated and involve many subjects;

b/ Lawsuits against administrative decisions, administrative acts of district-level People's Committees, presidents of district-level People's Committees in cases where judges of such district-level People's Committees fall into the cases where they have to refuse to conduct legal proceedings or shall be replaced.

9. Regarding the provision of Article 13 of the Ordinance

9.1. Determination of competence of courts and persons competent to settle second-time complaints

In order to properly implement the provisions of Clause 1, Article 13 of the Ordinance on competence, it is necessary, first of all, to check if such administrative decision or administrative act involves one or two or more persons. Depending on each specific case, the competence of courts or of persons competent to settle second-time complaints shall be determined as follows:

a/ If such administrative decision or administrative act involves only one person who has initiated an administrative case at a competent court and also complained with the person competent to settle second-time complaints and he/she has not yet issued a decision on settlement of the complaint, the settlement thereof shall fall under the court's jurisdiction. The court shall open the file and settle the case according to common procedures and at the same time notify the person competent to settle second-time complaints thereof and request him/her to transfer the entire dossiers on settlement of the complaint to the court (if any). If the dossiers arrive at the time the person competent to settle second-time complaints has issued a decision on settlement of the second-time complaint before the court opens the files, the court shall base on Point c, Clause 1, Article 31 of the Ordinance to return the lawsuit petition to the lawsuit initiator. If the decision on settlement of the second-time complaint has been issued after the court opens the files, the court shall base on Clause 3, Article 41 of the Ordinance to issue a decision to stop settling the administrative case and deletes the case from the file-opening book and return the lawsuit petition together with documents, evidences to the lawsuit initiator. Where the court returns the lawsuit petition or stops the settlement of the case under the guidance at this Point a, if the lawsuit initiator disagrees with the second-time complaint settlement decision and files a lawsuit petition for an administrative case, the court shall consider to proceed to open the files according to common procedures.

b/ If such administrative decision or administrative act involves many persons, it is necessary to make the distinction as follows:

b.1/ In cases where only one person initiates an administrative case at a competent court and at the same time complains with the person competent to settle second-time complaints while the rest do not initiate an administrative case nor complain with the person competent to settle second-time complaints, the settlement thereof shall fall under the jurisdiction of the court and be effected like the case guided at Point a of this Item.

b.2/ In cases where many persons initiate an administrative cases at a competent court and at the same time complain with the person competent to settle second-time complaints, the settlement thereof shall fall under the competence of the person competent to settle second-time complaints. If the court has not yet opened the files, it shall base on Point c, Clause 1, Article 31 of the Ordinance to return the bill of complaint to the complainant; if the court has opened the files, it shall delete the case from the file-opening book and transfer the case files to the person competent to settle second-time complaints and notify the lawsuit initiator thereof. In this case, if past the time limit for settling second-time complaints under the provisions of the law on complaints and denunciations a complaint has not yet been settled or has been settled under a decision on settlement of the second-time complaint but the complainant disagrees therewith and initiates an administrative case, the court shall base on the provision of Point c, Clause 1, Article 13 of the Ordinance to open the files according to common procedures, unless otherwise provided for by law.

b.3/ In cases where only one or a number of persons inititate an administrative case at a competent court while another person or several other persons complain with the person competent to settle second-time complaints, the settlement thereof shall fall under the competence of the person competent to settle second-time complaints and be carried out like the case guided at Point b.2 of this Item.

9.2. Handling of cases where the court has improperly settled an administrative case (as it is another case or falls under the jurisdiction of another court)

Where a court has improperly settled an administrative case (as it is another case or falls under the jurisdiction of another court), on a case-by-case basis it shall be settled as follows:

a/ In the course of settling administrative cases according to first-instance proceedings, if detecting that the settlement of such cases falls under its jurisdiction, which are, however, not administrative cases but other (civil, economic, labor) cases, the court shall re-handle the cases according to common procedures prescribed by the procedural law for the settlement of such cases and concurrently notify the involved parties and the Procuracy of the same level thereof;

b/ In the course of settling administrative cases according to first-instance proceedings, if detecting that the settlement of such cases falls under the jurisdiction of another court, the court dealing with such cases shall base on Clause 2, Article 13 of the Ordinance to delete the cases from the file-opening books and transfer the case files to the competent court and concurrently notify the involved parties and the Procuracy of the same level thereof;

c/ When conducting appellate adjudication of administrative cases, if detecting that the cases fall into the circumstances guided at Points a and b of this Item, the court of appeal shall base on Point c, Clause 2, Article 64 of the Ordinance to cancel, the first-instance judgments or rulings due to serious violation of legal proceedings and transfer the case files to the courts competent to conduct first-instance adjudication to re-open the first-instance trial of the cases according to common procedures prescribed by the procedural law for the settlement of such cases;

d/ When conducting cassation or review of administrative cases, if detecting that the cases fall under the circumstances guided at Points a and b of this Item, the court of cassation or review shall base on Clause 3, Article 72 of the Ordinance to cancel the judgments or rulings which have taken legal effect due to serious violation of legal proceedings and transfer the case files to the courts competent to conduct first-instance adjudication for re-opening the first-instance trial of the cases according to common procedures prescribed by procedural law for the settlement of such cases.

10. Regarding the provisions of Clause 1, Article 15 of the Ordinance

For the following cases, the first-instance trial panel may be composed of two judges and three people's jurors:

a/ Lawsuits against administrative decisions, administrative acts of provincial-level People's Committees or presidents of provincial-level People's Committees, which are complicated and involve many subjects;

b/ Lawsuits against decisions on settlement of complaints about decisions on settlement of competition cases.

11. Regarding the provisions of Article 16 of the Ordinance

11.1. The provision of Clause 1, Article 16 of the Ordinance

a/ According to the provision of Point a, Clause 1, Article 16 of the Ordinance, the persons conducting legal proceedings must refuse to conduct legal proceedings or be replaced if they are relatives of the involved parties (including complainants, complained persons, persons with relevant interests and obligations) in the administrative cases.

b/ Relatives of involved parties include:

b.1/ Wives, husbands, natural parents, adoptive parents, offspring or adopted children of the involved parties;

b.2/ Paternal grandparents, maternal grandparents, siblings of the involved parties;

b.3/ Paternal uncles or aunts, maternal uncles or aunts of the involved parties;

b.4/ Paternal or maternal grandchildren, paternal or maternal nieces or nephews of the involved parties.

c/ There are clear grounds to believe that they may not be impartial while performing tasks, meaning that besides the cases provided for at Points from a to h, Clause 1, Article 16 of the Ordinance, in other cases (such as in affectionate ties, in-law ties, working relations, economic relations,') there are clear grounds to confirm that judges, people's jurors, procurators or court clerks are not impartial while performing their tasks. Example: People's jurors are sworn brothers of lawsuit initiators; judges are in-law sons or daughters of persons with relevant interests and obligations'

It can also be regarded as having grounds to believe that they may be not impartial while performing their tasks if in the same court session for adjudication of administrative cases, the procurators, judges, people's jurors and court clerks are relatives to each other or if judges, people's jurors, procurators, who are assigned to conduct appellate adjudication of an administrative case, have relatives being judges, people's jurors or procurators who have participated in the first-instance or appellate adjudication of such cases.

11.2. Regarding the provisions of Clause 2, Article 16 of the Ordinance

a/ Under the provisions of Point b, Clause 2, Article 16 of the Ordinance, the judges and people's jurors must refuse to conduct legal proceedings or be replaced if they are in the same trial panel and relatives to each other. However, when there are in a trial panel two persons who are relatives to each other, only one of them must refuse to conduct the legal proceedings or be replaced. The replacement of whom before the court session opens shall be decided by the court president, and at the court session shall be decided by the trial panel. The identification of judges, people's jurors in the same trial panel being relatives to each other shall be conducted similarly under the guidance at Point b, Item 11.1 of this Section.

b/ Under the provisions of Point c, Clause 2, Article 16 of the Ordinance, judges and people's jurors must refuse to conduct legal proceedings or be replaced if they have participated in the first-instance or appellate adjudication of such cases. "Having participated in the first-instance or appellate adjudication' of such cases" means having participated in settling the cases and issued the first-instance or appellate judgments or decisions on termination of the cases.

12. Regarding the provisions of Clause 2, Article 17 of the Ordinance

12.1. At court sessions, the persons who request replacement of people conducting legal proceedings must clearly state the reasons for, and grounds of, their requests.

The trial panel shall hear the replacement requesters presenting their opinions on the requests for replacement of people conducting legal proceedings.

The requests for replacement of people conducting legal proceedings and the statements of the requesters, of the people requested to be replaced must be fully recorded in the minutes of the court session. The trial panel shall discuss them at the deliberation chamber and base on the provisions of Article 16 of the Ordinance and the guidance in Section 11 of this Resolution to decide by majority whether to replace the people conducting legal proceedings.

In case of decision on the replacement of people conducting legal proceedings, the decision shall clearly state the postponement of the court session and request competent authorities to nominate another person for the replacement within three days counting from the date of receipt of the decision and the court session postponement duration.

12.2. The decision on replacement or non-replacement of people conducting legal proceedings must be publicized by the trial panel at the court session. The replacement decisions shall be immediately sent to competent authorities for nomination of replacement; concretely as follows:

a/ The decision on replacement of people conducting legal proceeding, who are procurators shall be immediately sent to the chairman of the Procuracy of the same level; if the replaced procurator is the procuracy chairman, the decision shall be immediately sent to the chairman of the immediate higher Procuracy;

b/ The decision on replacement of other legal proceeding-conducting people shall be immediately sent to the courts presidents; if the replaced legal proceeding-conducting persons are the court presidents, it shall be immediately sent to the president of the immediate higher court.

13. Regarding the provisions of Clause 2, Article 30 of the Ordinance

13.1. Upon the implementation of Clause 2, Article 30 of the Ordinance, attention should be paid to the cases where the persons initiate the administrative cases due to their disagreement with the decisions on settlement of first-time or second-time complaints, the complainants only need to file their claims requesting the courts to settle the administrative cases within the time limit prescribed in Clauses 2, 3 and 4, Article 30 of the Ordinance, counting from the date of receiving the decisions on settlement of first-time or second-time complaints regardless of the time of issuance of such complaint settlement decisions.

13.2. Where after the issuance of a decision on settlement of a first-time or second-time complaint, the complainant still further lodges his/her complaint and the agency or person competent to settle such first-time or second-time complaint issues another decision (or document) settling the complaint, distinction should be made as follows:

a/ Where the later complaint settlement decision contains contents different in part or in whole from the contents of the previous complaint settlement decision, the time limit for initiating a lawsuit shall be counted from the date the complainant receives the later complaint settlement decision;

b/ Where the later complaint settlement decision contains contents not different from the contents of the previous complaint settlement decision or is only the reply on the settlement of the previous complaint, the time limit for initiating a lawsuit shall be counted from the date of receiving the previous complaint settlement decision.

14. Regarding the provisions of Clause 5, Article 33 of the Ordinance

Application of temporary urgent measures defined in Clause 5, Article 33 of the Ordinance shall comply with relevant provisions of the Civil Procedure Code; therefore, when applying the temporary urgent measures in this case, the courts should comply with the provisions of Clause 2 of Article 99 as well as Articles 100, 101, 117, 120, 123, 124, 125 and 126 of the Civil Procedure Code and the guidance in Resolution No. 02/2005/ND-HDTP of April 27, 2005 of the Judges' Council of the Supreme People's Court, guiding the implementation of a number of provisions of Chapter VIII "Temporary urgent measures" of the Civil Procedure Code.

15. Regarding the provisions of Clauses 5 and 6 of Article 37 of the Ordinance

15.1. The preparation time limit for first-instance trial of an administrative case shall be two months after the file is opened. Only where the case is complicated or due to objective obstacles can the trial preparation time limit be three months after the file is opened.

a/ "A complicated case" means a case involving many parties and is related to many domains; a case with contradictory documents and/or evidences which require more time for consultation with professional agencies or require complex technical expertise; a case where involved parties are foreigners who are residing overseas or are Vietnamese who are residing, studying or working overseas.

b/ "Objective obstacles" are those created by objective circumstances such as natural disasters, enemy sabotages, combat or combat service demands,' which make the courts unable to settle the cases within the prescribed time limits.

Example: The people's court of district B, province L in a mountainous region has decided to bring the case to trial, setting the date for opening the court session. Yet, two days before the court session opens, a flash flood happened. The office of the people's court of district B was damaged. Due to the overcoming of the flash flood's consequences, repairing its office, the people's court of district B cannot open the court session within the prescribed time limit.

15.2. Within the time limit prescribed in Clause 5, Article 37 of the Ordinance and guided in this Item 15.1, the judges assigned to preside over the court session shall issue one of the following decisions:

a/ To bring the case to trial;

b/ To suspend the settlement of the case;

c/ To stop the settlement of the case.

15.3. In cases where a decision to bring the case to trial was issued but the court session cannot be opened within the twenty-day time limit, counting from the date of issuance of the decision to bring the case to trial, for plausible reasons, such time limit shall be added with ten days at most.

"Plausible reasons" means events which occur objectively and unexpectedly such as the replacement or re-assignment of the legal proceeding-conducting persons named in the decisions to bring the cases to trial should have been made while the competent persons cannot yet nominate other persons for replacement; the complicated cases which have been adjudicated time and again by courts of different levels, hence, no more judges for adjudicating such cases which must be transferred to higher courts for adjudication or must await judges to be seconded from other courts, thus hindering the courts from opening the court sessions as scheduled.

15.4. Where a decision on suspension of the settlement of a case is issued, the trial preparation time limit shall end on the date the suspension decision is issued. The trial preparation time limit shall be re- counted from the date the court resumes the settlement of the case when the reasons for suspension no longer exist.

16. Regarding the provisions of Clause 9, Article 43 of the Ordinance

Where in a case an involved party cannot use Vietnamese and the court has nominated an interpreter, if the interpreter is absent from the court hearing and there is no one to replace, the trial panel still proceeds with the trial if it is so requested by the involved party that cannot use Vietnamese (regardless of whether the other party agrees or disagrees therewith).

17. Regarding the provisions of Clause 2, Article 49 of the Ordinance

17.1. A first-instance administrative judgment must contain the principal contents defined in Clause 2, Article 49 of the Ordinance and be presented similarly to the first-instance judgment form issued together with Resolution No. 01/2005/ND-HDTP of March 31, 2005, of the Judges' Council of the Supreme People's Court.

Where the Procuracy instigates an administrative case, the involved parties shall be written as follows:

a/ Replacing Section "The plaintiff" (The complainant) with "the Procuracy instigating the administrative case." Where a provincial-level People's Procuracy instigates an administrative case, the name of such Procuracy shall be indicated (Example: The Procuracy instigating the administrative case: The People's Procuracy of province H.T). Where a district-level People's Procuracy instigates an administrative case, the name of such district-level People's Procuracy under which province or centrally-run city shall be indicated (example: The Procuracy instigating the administrative case: The People's Procuracy of district G, city H).

b/ Replacing Section "The respondent" (the complained) with "The person having administrative decision (or administrative act), complained about for the administrative case" (example: The person having the administrative decision complained about for the administrative case: The president of the People's Committee of ward B, district H, city H).

17.2. Upon adjudication of administrative cases, depending on each specific circumstance, the courts may issue one or a number of the following decisions:

a/ Rejecting the claim of the complainant, if such claim lacks legal grounds;

b/ Accepting part or whole of the complainant's claim to declare cancellation of a part or whole of the illegal administrative decision; forcing the state administrative agency or the competent person in a state administrative agency to perform its or his/her official duty under the provisions of law;

c/ Accepting part or whole of the complainant's claim to declare that a number or all of the administrative acts are illegal; forcing a state administrative agency or the competent person in a state administrative agency to terminate the illegal administrative acts;

d/ Forcing a state administrative agency to compensate for damage, restore the legitimate rights and interests of individuals, agencies or organizations that are infringed upon due to the illegal administrative decision or act;

e/ Accepting the complainant's claim to declare cancellation of the illegal disciplinary decision on forced job severance; forcing the head of the agency or organization to perform the official duty under the provisions of law; foring the compensation for damage caused to individuals by illegal disciplinary decisions and the restoration of their legitimate rights and interests.

18. Stoppage of settlement of administrative cases at the appellate stage

Under the provisions of Article 62 of the Ordinance, before conducting the appellate trial, the courts may stop the settlement of cases under the provisions of the Ordinance. Also according to the provisions of Point e, Clause 2, Article 64 of the Ordinance, the court of appeal shall have the rights: "To cancel first-instance judgments or decisions and stop the settlement of cases in one of the circumstances defined in Article 41 of this Ordinance." Therefore, to ensure consistency, before opening appellate court sessions, if there appears one of the circumstances defined in Article 41 of the Ordinance, the court of appeal shall cancel the first-instance judgments or decisions and stop the settlement of the cases. It should be noted that if cancelling the first-instance judgments and stopping the settlement of cases, the court of appeal shall pronounce the appellage judgments; if cancelling the first-instance decisions and stopping the settlement of the cases, the court of appeal shall issue appellate decisions.

19. Regarding the provisions of Article 69 of the Ordinance

19.1. For courts' judgments or decisions on administrative cases which had come into force before 00.00 hrs of June 1, 2006, the time limit for protest according to the cassation procedures shall be six months counting from the date the judgments or decisions take legal effect; the time limit for protest according to reopening procedures shall be one year counting from the date the judgments or decisions take legal effect.

19.2. For courts' judgments or decisions on administrative cases which had come into force before 00.00 hrs of June 1, 2006, the time limit for protest according to cassation procedures shall be one year counting from the date the judgments or decisions take legal effect; the time limit for protest according to reopening procedures shall be one year counting from the date the persons competent to protest are aware of the grounds for protest according to reopening procedures defined in Clause 2, Article 67 of the Ordinance.

20. Settlement of lawsuits against lists of voters for election of National Assembly deputies, lists of voters for election of People's Council deputies, specified at Clause 18, Article 11 of the Ordinance

The courts shall only open files for settlement of cases regarding lawsuits against lists of voters for election of National Assembly deputies or lists of voters for election of People's Council deputies if they receive the lawsuits at least five days before the election date. When settling these lawsuits, the courts should do as follows:

20.1. Immediately after receiving the lawsuits against the lists of voters for election of National Assembly deputies or lists of voters for election of People's Council deputies, the court president (or court vice-president authorized by the court president) shall assign a judge to immediately open a file for the case. Within two days after opening the file, the assigned judge shall issue one of the following decisions:

a/ To bring the case to trial;

b/ To stop the case and return the lawsuit.

20.2. Immediately after issuing a decision to bring the case to trial, the court shall promptly send such decision to the involved parties and the Procuracy of the same level.

20.3. Within two days as from the date of issuing the decision to bring the case to trial, the court must open the court session for trial. The court's administrative judgment settling the lawsuit against lists of voters for election of National Assembly deputies or lists of voters for election of People's Council deputies shall take immediate effect. The involved parties shall not be entitled to appeal while the Procuracy has no right to protest. The court shall promptly send the administrative judgment to the involved parties and the Procuracy of the same level.

21. Instigation of administrative cases by Procuracies as provided for in Article 18 and Clause 6, Article 30 of the Ordinance

21.1. The Procuracies may instigate administrative cases against administrative decisions, administrative acts relating to the legitimate rights and interests of minors or losing their civil act capacity, if such persons have no one to initiate lawsuits. The decisions to instigate administrative cases shall be signed and affixed with stamps by Procuracy heads or deputy-heads authorized by Procuracy heads.

21.2. Where the Procuracies instigate administrative cases, when receiving the instituting decisions, the courts shall request the Procuraties to give documents and evidences showing that the institution of legal proceedings by the Procuracies are well grounded and lawful. At court sessions, the procurators shall present the decisions to instigate the administrative cases, the grounds of the instigation and participate in the court sessions according to common procedures prescribed for the procurators.

21.3. Where Procuracies that have issued decisions to instigate administrative cases withdraw the instigation decisions, the courts shall base on Article 41 of the Ordinance to issue decision to stop the settlement of the administrative cases and delete the cases from the file books.

22. Notification on file opening to Procuracies

22.1. Within five working days as from the date of opening the file for a case according to the first-instance procedures, the court shall notify in writing the Procuracy of the same level of its opening of file for the administrative case. In cases where it opens the file for many administrative cases, the court may notify in a document all cases it has opened the files. The written notification must contain the principal contents specified at Points a, b, c, d and e, Clause 2, Article 37 of the Ordinance.

22.2. Within five working days as from the date of opening the file for a case according to appellate procedures, the court shall notify in writing the Procuracy of the same level of its file opening for the administrative case. In case it opens the file for many administrative cases, the court may notify in a document all cases it has opened the files. The written notification must contain the following principal contents:

a/ Day, month, year the written notification is made;

b/ The name and address of the court making the notification;

c/ The name and address of the appellant;

d/ The number, day, month, year of the appealed first-instance administrative judgment;

e/ Specific issues which the appellant requests the court of appeal to settle.

23. Transfer of administrative-case files to Procuracies

23.1. Where Procuracies participate in first-instance court sessions under the provisions of Clause 1, Article 43 of the Ordinance, the first-instance courts shall send the administrative-case files together with the decisions to bring the cases to trial to the Procuracies for immediate study after the courts issue decisions to bring the cases to trial as provided for in Clause 7, Article 37 of the Ordinance. Upon the expiration of the fifteen day- time limit, counting from the date the Procuracies receive the case files, the first-instance courts shall request the Procuracies to return the files to the courts for proceeding with the opening of the court sessions for first-instance trial of the cases.

23.2. Where Procuracies participate in appellate court sessions under the provisions of Clause 1, Article 63 of the Ordinance, the court of appeal shall send the administrative-case files to the Procuracies for study. Upon the expiration of the fifteen-day time limit, counting from the date the Procuracies receive the case files, the court of appeal shall request the Procuracies to return the case files to the courts for proceeding with the appellate trial of the cases.

23.3. Where the president of the Supreme People's Court or presidents of the provincial-level people's courts protest for cassation or reopening trial, the courts which shall conduct the cassation or reopening trial shall send the administrative-case files together with the protest decisions to the Procuracies for study immediately after the court presidents issue the protest decisions. Upon the expiration of the fifteen-day time limit counting from the date the Procuracies receive the case files, the courts which shall conduct the cassation or reopening trial shall request the Procuracies to return the case files for proceeding with the opening of court sessions for cassation or reopening trial.

23.4. Where Procuracies request the transfer of administrative-case files for consideration of protest according to cassation or reopening procedures, the transfer of administrative-case files shall comply with the guidance in Item 2.3, Section 2, Part I of Joint Circular No. 03/2005/TTLT-VKSNDTC-TANDTC of September 1, 2005, of the Supreme People's Procuracy and the Supreme People's Court, guiding the implementation of a number of provisions of the Civil Procedure Code regarding the supervision of the observance of law in civil procedures and the Procuracies' participation in the settlement of civil cases.

23.5. Where Procuracies need to study administrative-case files for consideration of protest according to appellate procedures, the courts shall create conditions for the Procuracies to study the case files at the courts.

24. Procurators' participation in court hearings, meetings

24.1. Clause 1 of Article 43, Clause 1 of Article 63 and Clause 1 of Article 71 of the Ordinance provide that the procurators of the Procuracies of the same level must participate in court hearings; hence, after opening files for administrative cases, the courts shall notify the Procuracies of the same level as guided in Section 22 of this Resolution and request the Procuracies of the same level to assign procurators to participate in the court hearings. In case of complicated cases, the court hearings may last many days and the courts, if deeming it necessary, shall request the Procuracies to assign alternate procurators. The Procuracies shall send written notices on the assignment of procurators and alternate procurators (if any) to the courts. Such written notices shall clearly state the full names of the procurators and alternate procurators (if any), who are assigned by the Procuracy chairmen to participate the court hearings. In case of absence of procurators, the courts must postpone the court hearings.

24.2. The Ordinance does not provide that procurators of the Procuracies of the same level must participate in meetings in the case defined in Article 61 of the Ordinance. However, for the case of consideration of protests by Procuracies, the court shall notify the Procuracies of the same level thereof and request the Procuracies to assign procurators to participate in the meetings. Where the assigned procurators are absent from the meetings for plausible reasons and the Procuracies notify their absence, the courts shall postpone the meetings. Excluding this case, if procurators are absent, the courts shall keep proceeding with the meetings according to common procedures.

25. Competence to protest according to appellate procedures

Under the provisions of Clause 1, Article 55 of the Ordinance, the chairmen of the Procuracies of the same level and the immediate superior level shall have the right to protest according to appellate procedures with regard to the judgments or decisions on suspension or stoppage of the settlement of the administrative cases settled by provincial/municipal people's courts according to first-instance procedures, the chairmen or deputy-chairmen of the Procuracies who perform prosecution and control appellate trials shall be authorized by the chairman of the Supreme People's Procuracy to protest according to appellate procedures against the judgments or decisions on settlement of administrative cases by first-instance courts, which have not yet taken legal effect.

26. Control of amendment and/or supplementation of protests according to the provisions of Article 58 of the Ordinance

26.1. The courts shall accept the following amendments and supplements to protests by the protesting Procuracies:

a/ Where the protest time limit provided for in Clause 2, Article 56 of the Ordinance has not yet expired, the protesting Procuracies may amend and supplement their protests without any restriction on the scope of initial protests.

b/ Where the protest time limit provided for in Clause 2, Article 56 of the Ordinance has expired, before starting the court hearings or at the court hearings, the protesters may amend and supplement their protests but shall not go beyond the scope of protest in the protest time limit.

26.2 The amendment and supplementation of protests before the opening of court hearings must be made in three copies and send to the court of appeal according to the provisions of Clause 3, Article 58 of the Ordinance. The amendment and/or supplementation of protests at court hearings shall be recorded in the minutes of the court sessions.

27. Implementation effect of the Resolution

27.1. This Resolution was adopted by the Judges' Council of the Supreme People's Court on August 4, 2006, and shall take effect fifteen days after its publication in "CONG BAO."

This Resolution replaces Resolution No. 03/2003/ND-HDTP of April 18, 2003, of the Judges' Council of the Supreme People's Court, guiding the implementation of a number of provisions of the Ordinance on Procedures for Settlement of Administrative Cases.

27.2. For administrative cases the courts have opened files but have not yet conducted first-instance trials, appellate trials, cassation trials or reopening trials, the guidance in this Resolution shall apply to the settlement thereof.

27.3. For court judgments or decisions which have taken legal effect before this Resolution takes effect, the guidance in this Resolution shall not apply to the protests according to cassation or reopening procedures, except for the cases where there are other grounds for protest.