Does the court concurrently accept two requests to initiate a lawsuit against administrative decisions and acts that does not settle the complaint in Vietnam?

Does the court concurrently accept two requests to initiate a lawsuit against administrative decisions and acts that does not settle the complaint in Vietnam?

The administrative decision is appealed. Upon the expiration of the time limit for complaint settlement, but the person competent to settle complaints does not settle it, the person affected by their legitimate rights and interests has sued both the administrative decision and act that does not settle the complaint. In this case, will the Court accept to consider and settle these two petitions of the plaintiff at the same time?

Pursuant to Clause 1, Article 33 of the Law on Administrative Procedures 2015 has the following provisions:

1. In case a plaintiff files a petition to institute an administrative lawsuit at a competent court and concurrently files a complaint with a person competent to settle complaints, the court shall request the plaintiff to select the agency to settle the case and notify such in writing to the court.

In case the plaintiff cannot make the petition on his/her/its own, he/she/it shall request the court to make a written record of selection of the agency to settle the case. On a case-by-case basis, the court shall:

a/ Accept the case for settlement according to general procedures, and concurrently notify the case to the person competent to settle complaints and request him/her to transfer the whole dossier for complaint settlement to the court, in case the plaintiff selects the court to settle the case:

b/ Base itself on Point e, Clause 1, Article 123 of this Law to return the lawsuit petition and enclosed documents to the plaintiff, in case the plaintiff selects the person competent to settle complaints to settle the case.

Upon the expiration of the time limit for complaint settlement, if the complaint remains unsettled or have been settled but the complainant disagrees with the settlement results and files a petition to institute an administrative lawsuit at court, the court shall consider to accept the case according to general procedures.

=> Thus, in case there is both a petition against an administrative decision and act of failing to settle a complaint against an administrative decision in Vietnam, the Court needs to explain to the petitioner to choose one of the two requirements. 

In case the plaintiff chooses to sue an administrative decision or chooses to initiate a lawsuit against the act of failing to settle the complaint, the court shall consider and accept the administrative case at the plaintiff's lawsuit request. The jurisdiction of the Court in this case is determined according to the provisions of Articles 31 and 32 of the Law on Administrative Procedures.

In case the petitioner still requests the Court to settle both claims at the same time, the Court will only accept and consider the settlement of the request to initiate an administrative decision lawsuit.

In case of disagreement with the 2nd complaint settlement decision of the Chairman of the Provincial People's Committee, the Minister of Natural Resources and Environment, can individuals, agencies and organizations have the right to initiate lawsuits in Vietnam?

May I ask: Article 203 of the Land Law stipulates: “3. In case the concerned parties choose the option of settlement at a competent People’s Committee, the settlement is as follows: In case the dispute occurs among households, individuals and communities, the chairperson of the district-level People Committee is responsible for the settlement. If the concerned parties disagree with the settlement decision, they are entitled to lodge a complaint with the chairperson of the provincial-level People’s Committee or to file a lawsuit at a People’s Court in accordance with the law on administrative procedures”; In case the dispute involves one party being an organization, a religious institution, an overseas Vietnamese or a foreign-invested enterprise, the chairperson of the provincial-level People’s Committee is responsible for the settlement. If the concerned parties disagree with the settlement decision, they are entitled to lodge a complaint with the Minister of Natural Resources and Environment or to file a lawsuit with a People’s Court in accordance with the law on administrative procedures;

Therefore, in case of disagreement with the second complaint settlement decision of the Chairman of the Provincial People's Committee or the Minister of Natural Resources and Environment, can individuals, agencies and organizations have right to initiate lawsuits at the Court?

According to the provisions of Article 7 of the Law on Complaints 2011:

1. When having grounds to believe that an administrative decision or administrative act is unlawful or directly infringes upon his/her rights and lawful interests, a person may make a first-time complaint with the person who has issued such administrative decision or the agency that manages the person who has committed such administrative act, or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the first-time complaint settlement decision or the complaint remains unsettled although past the prescribed time limit, he/she may make a second-time complaint with the direct superior of the person competent to settle the first-time complaint or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the second-time complaint settlement decision or the complaint remains unsettled though past the prescribed time limit, he/she has right to institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

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3. For an administrative decision or administrative act of the chairperson of the People's Committee of a province or centrally-run city (hereinafter referred to as provincial People's Committee), the complainant may make a first-time complaint with the chairperson of the provincial-level People's Committee or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the first-time complaint settlement decision of the chairperson of the provincial-level People's Committee or the complaint remains unsettled though past the prescribed time limit, he/she may make a second-time complaint with the Minister managing the related sector or field or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the second-time complaint settlement decision of the Minister or the complaint remains unsettled though past the prescribed time limit, he/she may institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

According to the provisions of Clause 1, Article 30 of the 2015 Law on Administrative Procedures, which regulates the lawsuits falling under the jurisdiction of the Court, then:

1. Lawsuits over administrative decisions or acts, except:

a/ Administrative decisions or acts pertaining to state secrets in the fields of national defense, security and foreign affairs in accordance with law;

b/ Court rulings or acts in the application of administrative handling measures or handling of acts obstructing procedural activities;

c/ Internal administrative decisions or acts of agencies and organizations.

Thus, according to the provisions of the Law on Complaints and the Law on Administrative Procedures regarding the jurisdiction of the Court, the second complaint settlement decision of the Chairman of the Provincial People's Committee, of the Minister of Natural Resources and Environment in the field of land is not excluded. 

=> Therefore, if these decisions satisfy the provisions of Clause 2, Article 3 of the Law on Administrative Procedures, they are subject to an administrative lawsuit in Vietnam.

If the petitioner's request for annulment of administrative decisions is not accepted, can that decision be enforced in Vietnam?

In case the Court does not accept the petitioner's request for annulment of the administrative decision, can the administrative agency enforce the enforcement of the administrative decision immediately or must wait after the first-instance court issues a decision to enforce judgment, is it allowed to enforce the administrative decision?

Clause 2, Clause 3, Article 311 of the 2015 Law on Administrative Procedures has the following contents:

2. Time limit for voluntary judgment execution shall be determined as follows:

a/ The judgment debtor shall execute the court judgment or ruling prescribed at Point e or g, Clause 1 of this Article upon receiving it;

b/ The judgment debtor shall execute the court judgment or ruling prescribed at Point a, b, c, d or dd, Clause 1 of this Article within 30 days after receiving it.

The agency obliged to execute the court judgment or ruling shall notify in writing the judgment execution result prescribed in this Clause to the court that has conducted the first- instance trial and the same-level civil judgment enforcement agency.

3. Past the time limit prescribed in Clause 2 of this Article, if the judgment debtor fails to execute the court judgment or ruling, the judgment creditor may file a written request to the court that has conducted the first-instance trial for issuance of a decision compelling the execution of such judgment or ruling under Clause 1, Article 312 of this Law.

=> Thus, after the first-instance court has issued a decision to force the enforcement of the court's judgment or decision, the competent administrative agency may apply administrative coercive measures as prescribed by law in Vietnam.

Best regards!