Is it possible to file a petition to institute an administrative lawsuit and concurrently file a complaint in Vietnam?

Is it possible to file a petition to institute an administrative lawsuit and concurrently file a complaint in Vietnam?

My family has a piece of land with an area of ​​more than 1,000 m2 but the title has not been registered, the land origin was left by my parents. Two years ago, a household with adjacent land applied for a certificate and declared an excess of 500 m2 on my side of the land. I complained to the District People's Committee and requested to cancel the certificate issued to the other household. My family filed a complaint many times but the district kept prolonging the resolution time. I want to ask, can I both file a petition to institute an administrative lawsuit in court and at the same time complain to the person with authority to resolve it?

Answer: Pursuant to Clause 1, Article 33 of the 2015 Law on Administrative Procedures, regulations on determination of jurisdiction in case both complaint and lawsuit petitions are filed, specifically as follows:

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, you can only choose one of two resolution methods, one is according to the Court's administrative case resolution procedure in Vietnam, the other is according to the administrative complaint procedure.

Is it possible to file a petition to institute an administrative lawsuit and concurrently file a complaint in Vietnam? (Image from the Internet)

Does the district-level People's Committee pay court fees if it is the defendant in an administrative case in Vietnam?

In a case of suing a district-level People's Committee's land recovery decision, if the Court accepts the plaintiff's request, will the People's Committee have to pay the first instance court fee?

Answer: Involved parties (in administrative proceedings) include the plaintiff, the defendant, and people with related rights and obligations.

According to Clause 9, Article 3 of the 2015 Law on Administrative Procedures, defendant means an agency, organization or individual that has made an administrative decision, taken an administrative act or issued a disciplinary decision on dismissal, a decision on settlement of a complaint about a decision on handling of a competition case or made a voter list over which a lawsuit is instituted.

Thus, in this case, the district People's Committee is the defendant according to regulations.

On the other hand, Clause 2, Article 55 of the 2015 Law on Administrative Procedures stipulates the involved parties' obligations: To pay legal cost advances, legal cost, fees and other procedural expenses prescribed by law.

Besides, in Clause 2, Article 32 of Resolution 326/2016/NQ-UBTVQH, it is stipulated that in case the Court accepts the plaintiff's request to sue (cancel the illegal land recovery decision), the district-level People's Committee must Pay first instance court fees for administrative cases in Vietnam.

Who is entitled to make and sign a petition in an administrative case in Vietnam? 

Company A committed an administrative violation and was issued an administrative sanction decision by the People's Committee for the violation. Disagreeing with the penalty decision, the company initiated an administrative lawsuit at the court with jurisdiction. Company A authorized Ms. B, an accountant, to participate in the proceedings and write a petition. In the petition, Ms. B signed her name at the bottom of the petition and the petition was returned by the Court that accepted the petition. I would like to ask, is it correct for the Court to do so?

Answer: Pursuant to Clause 5, Article 117 of the 2015 Law on Administrative Procedures states as follows:

5. Lawful representatives of agencies or organizations that are plaintiffs may make lawsuit petitions by themselves or ask others to do so. The items of the plaintiff’s name and address in a petition shall be filled with the name and address of the agency or organization and the full name and position of the lawful representative of such agency or organization. The lawful representative of the agency or organization shall give his/her signature and append the seal of the agency or organization on the bottom of the petition. In case the plaintiff is an enterprise, the use of its seal must comply with the Law on Enterprises.

Thus, Ms. B's writing of a lawsuit petition is in accordance with the lawsuit procedure, but the signature of the petition must be signed and stamped by the legal representative of Company A, specifically the Director. Therefore, Ms. Lam's signature on the petition violated Point a, Clause 1, Article 123 of the 2015 Law on Administrative Procedures, which stipulates that the judge returns the petition when the plaintiff does not have the right to sue. Realizing that the Court returned the petition in accordance with the provisions of the 2015 Administrative Procedure Law.

Best regards!