In which case can the Court return lawsuit petition to initiate an administrative case in Vietnam?

In which case can the Court return lawsuit petition to initiate an administrative case in Vietnam?

I joined the administrative case as Plaintiff. I filed a lawsuit petition in the competent court but by mistake I did not enter the name of the Court where the petition was received. The court returned the lawsuit petition to me for that omission. Please, is it right for the Court to do so?

Answer: Pursuant to Clause 1, Article 123 of the 2015 Law on Administrative Procedures, which provides for the cases in which the Court of the place of acceptance is entitled to return the lawsuit petition as follows:

1. The judge shall return a lawsuit petition in the following cases:

a/ The plaintiff has no right to institute a lawsuit;

b/ The plaintiff does not have full administrative procedure act capacity;

c/ The plaintiff files the lawsuit petition with the court when failing to satisfy one of the law-prescribed conditions for instituting lawsuits.

d/ The matter has been settled with a legally effective court judgment or ruling;

dd/ The matter does not fall under the jurisdiction of the court;

e/ The plaintiff chooses to have the case or matter settled according to complaint settlement procedures in the case specified in Article 33 of this Law;

g/ The lawsuit petition does not fully contain the contents specified in Clause 1, Article 118 of this Law and is neither modified nor supplemented by the plaintiff under Article 122 of this Law;

h/ The plaintiff fails to produce a receipt of legal cost advance to the court upon the expiration of the notified time limit specified in Clause 1, Article 125 of this Law, unless the plaintiff is exempted from legal cost advance, is not required to pay legal cost advance or has a plausible reason for such failure.

Thus, your case does not meet any of the conditions of the above provisions. Therefore, it can be determined that the court's return of your lawsuit petition because of the lack of the name of the receiving court is not in accordance with the law in Vietnam. At the same time, based on Clause 1, Article 118 and Clause 1, Article 122 of the 2015 Administrative Procedure Law, which provides for cases where the court must request the plaintiff to amend and supplement as follows:

Article 118. Lawsuit petitions

1. A lawsuit petition must contain the following principal contents:

a/ Date of its making;

b/ Court requested to settle the administrative case;

c/ Names, addresses, telephone numbers, facsimile numbers and email addresses (if any) of the plaintiff, defendant and persons with related interests and obligations;

d/ Contents of the administrative decision, the disciplinary decision on dismissal or the decision on settlement of a complaint about a decision on handling of a competition case, contents of settlement of the complaint about a voter list, or a brief description of the administrative act;

dd/ Contents of the complaint settlement decision (if any);

e/ Claims requested to be settled by the court;

g/ Assurance of non-filing of a complaint with a person competent to settle complaints.

Article 122. Request for modification or supplementation of lawsuit petitions 

1. After receiving a lawsuit petition, if finding that such petition does not contain all the details specified in Clause 1. Article 118 of this Law, the judge shall notify such in writing to the plaintiff, clearly indicating details which need to be modified or supplemented, for petition modification or supplementation within 10 days after the plaintiff receives the court’s notice.

Realizing that the court has done wrong procedure, you need to contact the court to properly determine your rights and ask the court to allow you to exercise your right to amend or supplement in accordance with the law in Vietnam.

What are rights to initiate an administrative lawsuit of an owner of a sole proprietorship in Vietnam?

Sole proprietorship A operates in the field of import and export, whose director is Mr. Y and the owner of the business is Mr. X. Due to an administrative violation in late payment of import and export tax, the Customs Department of City X has issued a decision on tax arrears and penalties for late tax payment. Disagreeing with the above sanctioning decision, the company filed an administrative lawsuit at a court with jurisdiction. Who has right to appeal this decision? If Mr. X has right to sue, can he sue as an individual?

Answer: Based on the content you have provided, Clause 1, Article 115 of the Law on Administrative Procedures 2015 provides for the right to initiate as follows: Agencies, organizations or individuals may institute lawsuits over administrative decisions or acts or disciplinary decisions on dismissal in case they disagree with these decisions or acts or they have filed complaints with persons competent to settle complaints but their complaints remain unsettled upon the expiration of the law-prescribed time limit for complaint settlement or they disagree with the settlement of their complaints about these decisions or acts.

Thus, Mr. X is the person who has right to initiate the above-mentioned administrative case as an individual in Vietnam. Although the object of the lawsuit is the sanctioning decision against Sole proprietorship A, the rights and obligations of Sole proprietorship A are attached to Mr. X in accordance with the law in Vietnam. Therefore, Mr. X is the person who has the right to initiate in this case.

In case Mr. X authorizes Mr. Y to be the Director to initiate the lawsuit, the Plaintiff will be Sole proprietorship A and Mr. Y is the legal representative in Vietnam.

What are acceptance of cases after late payment of legal cost advances in administrative cases in Vietnam?

I filed an administrative lawsuit on April 15, 2018 and received a notice of payment of a court fee advance on April 25, 2018. But due to negligence, on May 12, 2018 I only filed a court fee advance, after being returned the lawsuit by the court. Please advise, so in my case, is the court returning the petition correct? After paying the court fee advance, will my case be accepted? If it is accepted, what is calculation of the lawsuit date?

Answer: Pursuant to Clause 1, Article 125 of the 2015 Law on Administrative Procedures, which stipulates:

1. After receiving the lawsuit petition and enclosed documents and evidences, if finding that the case falls under the jurisdiction of the court, the assigned judge shall notify such to the plaintiff for payment of legal cost advance. In case the plaintiff is exempt from, or not required to pay, legal cost advance, the assigned judge shall notify the plaintiff of the acceptance of the case.

Within 10 days after receiving a notice of legal cost advance payment, the plaintiff shall pay the legal cost advance and produce the legal cost advance receipt to the court.

Thus, the court's return of your petition is completely grounded in accordance with the provisions of Point h, Clause 1, Article 123 of the 2015 Law on Administrative Procedures in Vietnam as follows: The plaintiff fails to produce a receipt of legal cost advance to the court upon the expiration of the notified time limit specified in Clause 1, Article 125 of this Law, unless the plaintiff is exempted from legal cost advance, is not required to pay legal cost advance or has a plausible reason for such failure.

According to the content you mentioned, whether the court will continue to accept your case after paying the legal cost advance is specified at Point c, Clause 3, Article 125 of the 2015 Law on Administrative Procedures as follows:

3. In case the plaintiff produces the legal cost advance receipt to the court after the expiration of the time limit prescribed in Clause 1 of this Article:

c/ In case the plaintiff pays the legal cost advance and produces the legal cost advance receipt to the court after the judge returns the lawsuit petition not due to a force majeure event or an objective obstacle, the judge shall request the plaintiff to file the lawsuit petition and enclosed documents and evidences again for acceptance of the case. In this case, the date of lawsuit institution is the date of filing the lawsuit petition again.

Realizing that, after submitting the legal cost advance and receipt to the court, you must re-submit the lawsuit petition, accompanying documents and evidence to proceed with the case handling. The filing date will be the date you file your lawsuit petition in Vietnam.

Best regards!