Vietnam: Complaints about administrative decisions - Inadequacies and recommendations

In the activities of state administrative management, the managing entities carry out administrative management based on the tasks and powers prescribed by law. Based on the powers granted by law, these entities have the right to issue Administrative Decisions (ADs) that bind other organizations and individuals to comply with the orders and requirements of the management authorities. For various reasons, some organizations and individuals may believe that certain ADs of state administrative agencies (SAAs) and authorized persons within the SAAs are illegal, directly infringing upon their rights and legitimate interests. To protect their rights and lawful interests, organizations and individuals have the right to file complaints with the SAAs, the authorized persons within the SAAs, to request that these agencies reconsider the ADs that have infringed upon the rights and lawful interests of organizations and individuals in social life.

In practice, when individuals and organizations exercise their right to complain about ADs, they are often rejected or not accepted for resolution by the competent authorities. This raises the issue that not all ADs are the subjects of complaints according to the provisions of the Law on Complaints. Because according to the current provisions of the Law on Complaints, an AD can only be considered a subject of complaint when it satisfies certain criteria and specific characteristics.

1. Subject of the complaint

According to the provisions of the Law on Complaint: Complain means that a citizen, agency, organization, cadre or civil servant, according to the procedures prescribed in this law, requests a competent agency, organization or person to review an administrative decision or act of a state administrative agency or competent person in such agency, or a disciplinary decision against a cadre or civil servant when having grounds to believe that such decision or act is unlawful and infringes upon his/her/its rights and lawful interests.

From this provision, we can see that the Law on Complaints does not clearly define the concept of the subject of the complaint. The Law on Complaints only lists three administrative complaint subjects, which are ADs, administrative acts, and disciplinary decisions against officials and public servants when the complainant has grounds to believe that the decision or act is contrary to the law, infringing upon their rights and legitimate interests.

The complaint subjects of the Law on Complaints have similarities in form with the subjects initiating administrative litigation cases. However, the complaint subjects, according to the provisions of the Law on Complaints, are fewer than those initiating administrative litigation cases. Because according to the provisions of the administrative litigation law, in addition to the three subjects specified in the Law on Complaints, the administrative litigation law also expands to include two additional subjects, which are: appealing against decisions on handling complaints about decisions on handling competition cases; and appealing against voter lists.

In this article, the author deeply analyzes ADs - the subject of complaints in Vietnamese Law on Complaintss. ADs frequently "appear" in the process of complaints and resolution of complaints by state administrative agencies.

Administrative decision means a document which is issued by a state administrative agency or a competent person in such agency to decide on a specific issue in state administration management activities and is applied once to one or several specific subjects.

Therefore, an AD must include four essential elements:

First, it must be presented in the form of a document;

Second, the issuing entity is a state administrative agency or an authorized person within a state administrative agency;

Third, the decision is applied once to one or a number of specific objects.

Fourth, it must be issued in administrative management activities unrelated to state secrets in the fields of national defense, security, and diplomacy.

The administrative decision must be expressed in writing: With this characteristic, the Law on Complaints has eliminated existing non-textual administrative decisions, such as those made by signals, whistles, or signs... These are non-textual administrative decisions, and they are not subject to the provisions of the Law on Complaints. This characteristic is completely reasonable because, in practice, the majority of non-textual decisions often "appear" in the internal work of agencies and organizations. At the same time, non-textual administrative decisions are often unclear in reality, so they cannot serve as a basis for individuals to exercise their right to complain.

The Law on Complaints requires administrative decisions to be expressed in writing. However, the Law on Complaints does not clearly define the specific forms of a document. Therefore, the issue is how a document is understood. Currently, there is no legal provision that explains the concept of a "document." In practice, when referring to a "document,"  people think of various types of "papers" - the main form of a document, or "a document is a type of medium used to record, store, and transmit information from one entity to another through symbols called writing." Or administrative decisions in electronic files, which are also a form of document according to the provisions of the Law on Complaints, if the electronic file contains the content of an administrative decision.

In the process of managing and implementing administrative activities, state administrative agencies not only issue documents called decisions but also other documents such as notifications, guidelines, official letters, etc. The question is whether these documents can be subject to complaints or not. The Law on Complaints still leaves this issue open. In practice, state agencies and organizations still handle documents such as official letters, notifications, guidelines, etc. if these documents contain the content of an administrative decision. For example:

From 2006 to 2009, Mr. H and Mrs. V submitted a request to the People's Committee of M district to return the borrowed land, but the People's Committee of M district did not resolve it. At the beginning of 2020, Mr. H and Mrs. V continued to submit a request for consideration. On April 7, 2020, the People's Committee of M district issued Official Letter 250/UBND-TNMT to respond to Mr. H and Mrs. V's request. The content of Official Letter 250 affirmed that there was no basis to claim that the People's Committee of M district borrowed land from Mr. H and Mrs. V to give to Mrs. H for temporary residency. In this case, the People's Committee of M district did not issue a written decision but issued Official Letter 250/UBND-TNMT to respond to Mr. H and Mrs. V's request. However, the content of Official Letter 250/UBND-TNMT addresses a specific issue, a specific subject. Based on that, the Provincial People's Court of Quang Binh concluded that Official Letter 250 is a subject of complaint: "Therefore, although it is a response to a request, the content of Official Letter 250 functions as a decision, having decided on a specific issue in the state administrative management activities for a specific subject. Therefore, Mr. H and Mrs. V's complaint against Official Letter 250 is in accordance with the regulations." I believe that the conclusion of the Provincial Court of Quang Binh is convincing.

Administrative decisions under the Law on Complaints can only be considered subjects of complaint if they are issued by state administrative agencies or authorized individuals within state administrative agencies: Usually, when referring to the subject issuing an administrative decision, it is associated with a specific individual. However, in the Law on Complaints, the subject issuing administrative decisions can be state administrative agencies. For example, in cases of land management decisions: such as land allocation decisions, land lease decisions, land use change permits; compensation, support, resettlement decisions; issuance or revocation of land use certificates; extension of land use terms; compulsory land recovery decisions; land acquisition decisions; land recovery, etc., the authority to issue these decisions belongs to the People's Committee. In this case, the issuing authority is the People's Committee, not an individual, a person with authority within that agency.

The legislation on complaints does not clearly specify the issuing authority of administrative decisions, which has caused difficulties in the complaint resolution process. Specifically, according to the legal provisions, some individuals have the authority to issue administrative decisions, but these decisions are not issued by state administrative agencies or their officials. Therefore, are these decisions subject to complaints under the Law on Complaints? The Law on Complaints does not provide clear regulations on this matter. For example, according to the provisions of the law on handling administrative violations, the Commander of an aircraft, ship captain, or train conductor who has left the airport, port, or station has the authority to issue administrative detention decisions; the Management Board of an economic zone has the authority to issue administrative decisions regarding land use fees, land lease fees, land recovery, or leasing for land users; or other agencies and organizations as prescribed in Article 3 of the Law on Complaints have the authority to resolve complaints within their respective agencies. These individuals or organizations are not competent officials within state administrative agencies, but rather individuals or subordinate agencies of provincial People's Committees or other organizations authorized by the state to issue administrative decisions. Therefore, do complainants have the right to file complaints against the administrative decisions issued by these individuals or organizations? The Law on Complaints has not provided an answer to this issue.

- Administrative decisions must be issued in administrative management activities that are not related to state secrets in the areas of defense, security, and diplomacy, according to the government's prescribed list, and must not be internal decisions of agencies or organizations. Only administrative decisions issued in administrative management activities are considered as subjects of complaints. This means that for those administrative decisions issued in legislative and judicial activities, they are not subject to complaints under the provisions of the Law on Complaints. The resolution of complaints regarding administrative decisions issued in legislative and judicial activities is governed by specialized laws. For example, in the case of complaints against decisions to prosecute a defendant in criminal proceedings, the complaint process is carried out according to the provisions on complaints in the Code of Criminal Procedure. In addition, specialized laws have provisions that refer to the Law on Complaints. For example, the Law on Administrative Procedures includes a chapter on complaints and denunciations in administrative proceedings, and during the process of resolving complaints in administrative litigation, the competent authority applies the provisions of the Law on Administrative Procedures. At the same time, the Law on Administrative Procedures has provisions that refer to the application of the Law on Complaints.

On June 4, 2012, the government issued Decree 49/2012/ND-CP, which regulates the list of administrative decisions and administrative acts related to state secrets in the fields of defense, security, and diplomacy. An administrative decision can only be considered a complaint subject if it does not fall within the scope of state secrets in the three fields of defense, security, and diplomacy as specified in Decree 49/2012/ND-CP. However, Decree 49/2012/ND-CP is a classified document, and only authorized state agencies and individuals have access to its content. This leads to the consequence that citizens cannot know which administrative decisions fall within the scope of state secrets in the fields of defense, security, and diplomacy regulated by the government, causing difficulties for complainants.

According to Article 11, Clause 1 of the Law on Complaints, internal administrative decisions of state agencies for directing and organizing tasks and duties, as well as decisions in the hierarchical direction of higher-level administrative agencies to lower-level administrative agencies, cannot be the subject of complaints. This provision lists this in a general way without explaining what constitutes an internal administrative decision of an agency. It does not specifically define which decisions are considered internal administrative decisions of an agency. This leads to a situation where it is difficult to determine whether a decision is an internal administrative decision of an agency or not.

- Administrative decisions are the subject of complaints and must be specific decisions in administrative management activities that are applied once to one or several specific objects. With this characteristic, administrative decisions are limited to individual administrative decisions. The Law on Complaints excludes directive administrative decisions and decisions that violate the law from being the subject of complaints, according to the regulations of the Law on Complaints. However, in the general legal system and the Law on Complaints in particular, there is no specific provision explaining what constitutes an individual administrative decision, which makes it difficult to determine whether the decisions made by authorized entities in state administrative agencies are individual administrative decisions or not.

At the same time, the Law on Complaints does not allow agencies, organizations, and individuals to complain about directives and violations of administrative decisions; it only allows the right to complain about decisions that have individual characteristics, which is not reasonable. Because during the process of directing and managing state administrative agencies, they not only issue individual administrative decisions but also issue directives and violate administrative decisions to regulate general administrative activities. However, when the directive and violating administrative decisions have not been timely implemented, causing the arising, changing, limiting, or terminating of the legal rights and interests of individuals, organizations, or having content that creates obligations or affects the rights and interests of individuals, organizations, how should they be resolved? The Law on Complaints does not provide clear regulations on this issue.

2. Some recommendations to improve the legislation on administrative decisions—the subject of complaints under the Vietnamese Law on Complaints

The current Law on Complaints has made progress in determining administrative decisions as the subject of complaints. This is to facilitate individuals and organizations to propose that the competent authority reconsider their decisions when there is evidence that these decisions are illegal and violate the legal rights and interests of individuals and organizations. However, when applied in practice, the current Law on Complaints still has some limitations and difficulties that require revision and supplementation of administrative decisions as the subject of complaints to be more suitable for current practices. Therefore, the author has some recommendations to improve the Law on Complaints regarding administrative decisions—the subject of complaints according to the Vietnamese Law on Complaints—as follows:

Firstly, expanding the subject and authority to issue administrative decisions—the subject of complaints.

The Law on Administrative Procedures 2015 states, "Administrative decisions are documents issued by state administrative agencies, organizations, or individuals authorized to implement state administrative management or by competent individuals in those agencies or organizations to decide on specific issues in administrative management activities that are applied once to one or several specific objects." However, the Law on Complaints stipulates that the subjects that can issue administrative decisions—the subject of complaints are only state administrative agencies and individuals with authority in state administrative agencies. In addition, Article 3 of the Law on Complaints lists the complainants and the authorities to handle complaints. Moreover, procedural laws and laws on handling administrative violations when resolving complaints also have provisions that refer to and apply the Law on Complaints, and the mentioned administrative decisions are not the subject of complaints. As a result, there are many limitations and obstacles to complaint activities and complaint resolution. Therefore, the author proposes the need to revise and supplement to expand the subjects and authorities to issue administrative decisions—the subject of complaints—in a consistent and unified manner with Article 1 of the Law on Administrative Procedures 2015.

In practice, the Law on Complaints shows that most administrative decisions—the subject of complaints—are issued by People's Committees at all levels, but the Law on Complaints does not clearly specify the authority to resolve complaints against these decisions. Therefore, the author believes that it is necessary to supplement the 2011 Law on Complaints with specific provisions regarding the authority to resolve complaints against administrative decisions issued by People's Committees."

Secondly, expanding the right to complain about legal normative documents.

The current law only allows citizens and organizations to file complaints against specific administrative decisions that directly affect the legitimate rights and interests of individuals and organizations, without allowing complaints against normative legal documents. The author proposes that the Law on Complaints should be amended and supplemented to allow citizens to file complaints against normative legal documents issued by local authorities if they believe that the document is contrary to the law. This is necessary and reasonable, in line with the general trend, as it has been recognized and implemented by many countries around the world, such as Spain, France, Portugal, etc. For example: "Every citizen has the right to claim compensation for damages, dismiss officials, propose the issuance, cancellation, amendment of laws, decrees, or regulations, or file complaints in other areas; no one shall be discriminated against for supporting these proposals."

Thirdly, clear and specific regulations are needed for internal administrative decisions of state agencies, along with the publication of the accompanying list according to Decree 49/2012/ND-CP.

The Law on Complaints has different provisions regarding internal administrative decisions compared to administrative litigation laws. This has made it difficult to determine internal administrative decisions for complaint resolution and administrative case settlement. Therefore, the Government or competent state agencies need to have explanatory documents and specific guidelines on internal administrative decisions, and these regulations must be consistent with the provisions of administrative litigation laws to ensure unified, transparent, and effective application of the Law on Complaints and administrative litigation laws, protecting the legitimate rights and interests of citizens from infringement. The author suggests adding a provision to the Law on Complaints: "Internal administrative decisions of agencies are decisions serving the directives and management of higher-level administrative agencies towards lower-level agencies, officials and employees of managed units that do not directly affect the rights and interests of other entities.

As analyzed, Decree 49/2012/ND-CP is a classified document. This causes many difficulties for individuals and organizations who do not know which internal administrative decisions are included in the state secret list in the fields of security, defense, and diplomacy. However, Decree 49/2012/ND-CP of the Government is a normative legal document, therefore, the author recommends that Decree 49/2012/ND-CP be made public so that individuals and organizations can access the list of internal administrative decisions considered state secrets in order to ensure the legitimate rights and interests of individuals and organizations are not violated and, at the same time, enhance the trust of individuals and organizations in the Party and the State.

Fourthly, clear regulations on the names of administrative decisions are needed.

With the current Law on Complaints not specifying or guiding the form of administrative decisions, not explaining the specific forms of document existence, and not providing detailed regulations on the names of administrative decisions, many shortcomings and obstacles have arisen in complaint filing and resolution. Therefore, the author recommends that the Law on Complaints should provide clear regulations on the names of administrative decisions that must be appropriate in form and content, such as Resolution 02/2011/NQ-HDTP dated July 29, 2011, of the Council of Judges of the Supreme People's Court, stating that: "Administrative decisions subject to litigation to request the court to settle administrative cases are documents expressed in the form of decisions or other forms such as announcements, conclusions, official letters issued by state administrative agencies, other agencies, organizations, or authorized individuals in those agencies or organizations, containing the content of administrative decisions that are applied once to one or several specific subjects regarding a specific issue in administrative management activities that the plaintiff believes has infringed upon their rights and legitimate interests"... to be in line with practical requirements in complaint filing and resolution.

M.Sc NGUYEN DUC ANH (Ninh Phuoc District Justice Department, Ninh Thuan Province)

Source: "Tạp chí Tòa án nhân dân điện tử" (Electronic People's Court Magazine

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