Vietnam: When does the decision to apply temporary emergency measures in administrative proceedings expire?
- When will the decision to apply temporary emergency measures in administrative proceedings take effect in Vietnam?
- When are temporary emergency measures required in administrative proceedings in Vietnam?
- In case of change or cancellation of a temporary emergency measure, when does the decision to apply a temporary emergency measure expire in Vietnam?
- The Vietnam Law on Administrative Procedure does not provide for the effective duration of the decision to apply temporary emergency measures. So, when does the decision to apply a temporary emergency measure expire?
When will the decision to apply temporary emergency measures in administrative proceedings take effect in Vietnam?
Pursuant to Article 75 of the 2015 Vietnam Law on Administrative Procedure, it provides as follows:
Article 75. Effect of decisions on application, chance or cancellation of provisional urgent measures
1. Decisions on application, change or cancellation of provisional urgent measures shall become effective immediately for implementation.
2. The court shall immediately deliver or send decisions on application, change or cancellation of provisional urgent measures to involved parties and procuracy and civil judgment enforcement agency at the same level.
Accordingly, the Decision to apply temporary emergency measures in administrative proceedings has the power to implement immediately.
Vietnam: When does the decision to apply temporary emergency measures in administrative proceedings expire?
When are temporary emergency measures required in administrative proceedings in Vietnam?
Article 66 of the 2015 Vietnam Law on Administrative Procedure provides for the right to request the application of temporary emergency measures in specific administrative proceedings as follows:
- In the process of settling the case, the litigant or his/her representative has the right to request the court that is handling that case to apply one or more temporary emergency measures specified in Article 68 of the Vietnam Law on Administrative Procedure 2015 to temporarily resolve the urgent request of the litigant, protect evidence, preserve existing conditions from causing irreparable damage, ensure the settlement of the case or the execution of the sentence.
- In case due to an emergency situation, it is necessary to immediately protect evidence and prevent serious consequences that may occur, agencies, organizations and individuals have the right to submit an application to a competent Court to issue a decision on the application of temporary emergency measures specified in Article 68 of Administrative Procedure 2015 simultaneously with the filing of a petition to that Court.
In case of change or cancellation of a temporary emergency measure, when does the decision to apply a temporary emergency measure expire in Vietnam?
Pursuant to Article 74 of the Vietnam Law on Administrative Procedure 2015, it provides as follows:
Article 74. Change or cancellation of provisional urgent measures
1. At the request of involved parties, the court shall consider and decide to change provisional urgent measures being applied if deeming such measures no longer appropriate and it is necessary to replace them with other provisional urgent measures.
2. The court shall issue a decision to cancel an applied provisional urgent measure in one of the following cases:
a/ The requester for application of the measure requests the cancellation thereof;
b/ The ground for the application of the provisional urgent measure no longer exists;
c/ The case has been settled with a legally effective court judgment or ruling;
d/ One of the cases in which the court returns the lawsuit petition as prescribed in this Law;
dd/ The case has been terminated under Article 143 of this Law.
3. Procedures for changing or canceling provisional urgent measures must comply with Article 73 of this Law.
Accordingly, the court's decision to apply a temporary emergency measure expires only when there is a decision by the Court to change or cancel the temporary emergency measure.
When does the decision to apply temporary emergency measures in administrative proceedings expire in Vietnam?
Pursuant to subsection 6, Section V of Official Dispatch 206/TANDTC-PC 2022 provides as follows:
The Vietnam Law on Administrative Procedure does not provide for the effective duration of the decision to apply temporary emergency measures. So, when does the decision to apply a temporary emergency measure expire?
Clause 1, Article 75 of the 2015 Vietnam Law on Administrative Procedure stipulates: "The decision to apply, change or cancel temporary emergency measures shall take effect immediately".
Clauses 1 and 2, Article 74 of the 2015 Vietnam Law on Administrative Procedure provide for cases of change or cancellation of temporary emergency measures.
Thus, the court's decision to apply a temporary emergency measure only expires when there is a decision to change or cancel the temporary emergency measure.
The Vietnam Law on Administrative Procedure in 2015 does not have specific provisions on cases where a judgment or decision of the Court has the force of Vietnam Law, how the settlement of the request to cancel the decision on the application of temporary emergency measures is carried out; Therefore, in this case, it is possible to refer to the provisions of Clause 3, Article 138 of the Code of Civil Procedure and Resolution No. 02/2020/NQ-HDTP dated September 24, 2020 of the Council of Judges of the Supreme People's Court guiding the application of a number of provisions on temporary emergency measures of the Civil Procedure Code, namely, it will be dealt with by a Judge assigned by the Chief Justice of the Court who has decided to apply a temporary emergency measure.
Accordingly, the Vietnam Law on Administrative Procedure in 2015 does not have specific provisions on cases where a judgment or decision of the Court has legal effect, how the settlement of the request to cancel the decision on the application of temporary emergency measures is carried out.
Therefore, it is possible to refer to the provisions of Clause 3, Article 138 of the Civil Procedure Code and Resolution 02/2020/NQ-HDTP to determine when the decision to apply temporary emergency measures in administrative proceedings expires.
Specifically, it will be decided by a Judge assigned by the Chief Justice of the Court to apply a temporary emergency measure.
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