May judges refuse to conduct administrative procedures when being assigned by competent persons in Vietnam?
May judges refuse to conduct administrative procedures when being assigned by competent persons in Vietnam?
Pursuant to the provisions of Article 45 of the Law on Administrative Procedures 2015 (supplemented by Clause 1, Article 2 of the Law on amendments to the Law on State Audit Office of Vietnam 2019), procedure-conducting persons shall refuse to conduct procedures or be changed in any of the following cases:
- They are concurrently involved parties, representatives or relatives of involved parties;
- They have participated in the capacity as defense counsels of the lawful rights and interests of involved parties, witnesses, expert witnesses or interpreters in the same case;
- They have participated in the issuance of administrative decisions or are related to administrative acts over which lawsuits are instituted;
- They have participated in the issuance of decisions on settlement of complaints about administrative decisions or acts over which lawsuits are instituted;
- They have participated in the issuance of disciplinary decisions on dismissal of civil servants or decisions on settlement of complaints about disciplinary decisions on dismissal of civil servants over which lawsuits are instituted;
- They have participated in the issuance of decisions on handling of competition cases or decisions on settlement of complaints about decisions on handling of competition cases over which lawsuits are instituted;
- They have participated in preparing audit reports and issuing decisions to settle complaints about governmental auditing activities against which lawsuits are filed
- They have participated in the making of voter lists which lawsuits are instituted;
- There are other clear grounds to believe that they might be not impartial while performing their duties.
Pursuant to the provisions of Article 46 of the Law on Administrative Procedures 2015 on cases in which judges or people’s assessors shall refuse to conduct procedures or be changed:
Cases in which judges or people’s assessors shall refuse to conduct procedures or be changed
Judges or people’s assessors shall refuse to conduct procedures or be changed in any of the following cases:
1. They fall into one of the cases specified in Article 45 of this Law;
2. They are members of the same trial panel and relatives; in this case, only one of them may conduct procedures;
3. They have participated in the settlement of an administrative case according to first- instance, appellate, cassation or reopening procedures on which a first-instance judgment, an appellate judgment or ruling, a cassation or reopening ruling and a decision to terminate the settlement of the case or a decision to recognize successful dialogue results have been made, unless they are members of the Judicial Council of the Supreme People’s Court or the judicial committee of a superior people’s court who are allowed to participate in trying such case according to cassation or reopening procedures;
4. They have conducted procedures in the same case in the capacity as verifiers, court clerks, procurators or examiners.
Therefore, judges are allowed to refuse to conduct administrative procedures when being assigned by competent persons in the cases specified in Article 45 and Article 46 of the Law on Administrative Procedures 2015.
May judges refuse to conduct administrative procedures when being assigned by competent persons in Vietnam? (Image from the Internet)
What are the procedures for judges to refuse to conduct administrative procedures in Vietnam?
Pursuant to the provisions of Article 48 of the Law on Administrative Procedures 2015:
Procedures for refusing to conduct procedures or requesting the change of judges, people’s assessors, verifiers or court clerks
1. The refusal to conduct procedures or request for change of a judge, people’s assessor, verifier or court clerk before the opening of a court hearing must be made in writing, clearly stating the reason and ground for the refusal or request.
2. The refusal to conduct procedures or request for change of a person specified in Clause I of this Article at a court hearing shall be recorded in the hearing minutes.
Therefore, the refusal to conduct procedures or request for change of a judge before the opening of a court hearing must be made in writing, clearly stating the reason and ground for the refusal or request.
The refusal to conduct procedures or request for change of a judge at a court hearing shall be recorded in the hearing minutes.
Who has the power to change a judge of a court hearing in Vietnam?
Pursuant to the provisions of Article 49 of the Law on Administrative Procedures 2015 on decisions on change of judges, people’s assessors, verifiers or court clerks:
Decisions on change of judges, people’s assessors, verifiers or court clerks
1. Before the opening of a court hearing, the change of a judge, people’s assessor, verifier or court clerk shall be decided by the chief justice of the court.
In case a judge requested to be changed is the chief justice of the court:
a/ The change of a judge being the chief justice of a district-level court shall be decided by the chief justice of a provincial-level court;
b/ The change of a judge being the chief justice of a provincial-level court shall be decided by the chief justice of a superior court having the territorial jurisdiction over such provincial- level court;
c/ The change of a judge being the chief justice of a superior court shall be decided by the Chief Justice of the Supreme People's Court.
2. During a court hearing, the change of a judge, people’s assessor or court clerk shall be decided by the trial panel after hearing opinions of the person requested to be changed. The trial panel shall discuss the change in the deliberation room and make a decision by majority. In case a judge, people’s assessor or court clerk must be changed without any alternative one for immediate replacement, the trial panel shall issue a decision to postpone the court hearing. The chief justice of the court shall decide to appoint a new judge, people’s assessor or court clerk. If the changed person is the chief justice of the court, the competence to decide on appointment must comply with Clause 1 of this Article.
3. Within 5 working days after the court hearing is postponed, the chief justice of the court shall appoint a person in replacement of the changed one.
Before the opening of a court hearing, the change of a judge shall be decided by the chief justice of the court.
In case a judge requested to be changed is the chief justice of the court:
- The change of a judge being the chief justice of a district-level court shall be decided by the chief justice of a provincial-level court;
- The change of a judge being the chief justice of a provincial-level court shall be decided by the chief justice of a superior court having the territorial jurisdiction over such provincial- level court;
- The change of a judge being the chief justice of a superior court shall be decided by the Chief Justice of the Supreme People's Court.
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