Jurisdiction of courts according to the Law on Administrative Procedures 2015 of Vietnam

The jurisdiction of the courts in handling administrative disputes is regulated in Chapter II of the Law on Administrative Procedures 2015 of Vietnam, consisting of 6 articles (from Article 30 to Article 35), which amends and supplements the jurisdiction of courts at all levels to align with the model and organization of the courts under the Law on the Organization of People's Courts 2014, ensuring objectivity, effectiveness, and feasibility in resolving administrative disputes. To be specific:

1. Lawsuits under jurisdiction of courts

Article 30 of the Law on Administrative Procedures 2015, in addition to continuing to inherit the provisions of the Law on Administrative Procedure 2010 regarding the types of cases under the jurisdiction of the courts, also introduces the following amendments supplements:

Firstly, the law includes provisions excluding the litigants in administrative cases from challenging the decisions and actions of the courts in applying administrative sanctions or dealing with behaviors that obstruct the litigation process.

To enhance transparency, public access, and safeguard the rights of participants in litigation, during the process of drafting the Law on Administrative Procedure (amended), there were suggestions to further expand the jurisdiction of the courts over administrative decisions and internal administrative acts of agencies and organizations, including disciplinary decisions against officials and public servants (beyond the current limitation of disciplinary decisions resulting in termination of employment). Additionally, there were proposals to extend the jurisdiction of the courts to include the decisions and actions of the courts in applying administrative sanctions or dealing with behaviors that obstruct the litigation process. However, the law did not expand the jurisdiction of the courts over these administrative decisions and acts for the following reasons:

- Expanding the jurisdiction of the courts over administrative decisions and internal administrative acts of agencies and organizations would lead to excessive interference in their management and operations, jeopardizing stability and order in their management, direction, and administration.

- Actions that obstruct the litigation process by the courts are violations of the obligations of individuals, organizations, and agencies participating in the litigation, causing difficulties and hindrance to the courts in resolving cases, affecting the time, quality, and effectiveness of case resolution. Dealing with these actions needs to be done promptly and facilitate the courts in resolving cases. On the other hand, if these actions were also subject to administrative litigation, it would mean that the courts would have to review and rule on their own decisions, which may not be objective, feasible, or practical.

- Decisions to apply administrative sanctions to educational institutions, compulsory educational institutions, and compulsory rehabilitation facilities fall under the jurisdiction of the courts, not the jurisdiction of the district or provincial People's Committees as stipulated in the previous legislation on handling administrative violations. Since these decisions are not administrative decisions, they are not subject to litigation. Furthermore, the procedures and jurisdiction for deciding on the application of these administrative measures are regulated by the Law on Handling Administrative Violations 2012 and the Ordinance on Procedures and Jurisdiction for Considering and Deciding on the Application of Administrative Measures in People's Courts 2014. If there are complaints, the court with appellate jurisdiction will handle them.

Secondly, to implement Article 2 of the Constitution 2013 of Vietnam on human rights, civil rights can only be restricted as provided by law. During the process of drafting the Law on Administrative Procedure (amended), there were suggestions to legislate a list of administrative decisions and administrative acts that fall within the scope of state secrets in the areas of national defense, security, and diplomacy, and are not under the jurisdiction of the courts. However, to align with practical application, many suggestions were made to not specify this list, but instead have it regulated by the legislation on state secrets. Therefore, point a, clause 1, Article 30 of the Law on Administrative Procedure 2015 was amended regarding administrative decisions and administrative acts that fall within the scope of state secrets in the areas of national defense, security, and diplomacy, to state "as provided by law" instead of being determined by the government as before.

Thirdly, to expand the scope of litigants in administrative cases to "lists of voters for consultation of public opinion" in accordance with the provisions of the Law on Consultation of Public Opinion 2015, clause 4, Article 30 of the Law on Administrative Procedure 2015 removed the phrase "election of National Assembly deputies, lists of voters for the election of People's Council deputies" from clause 2, Article 28 of the Law on Administrative Procedure 2010 and amended it to "Challenging lists of voters".

2. Jurisdiction of district-level courts and provincial-level courts

Compared to the provisions of the Law on Administrative Procedure 2010, Articles 31 and 32 of the Law on Administrative Procedures 2015 have made significant amendments and additions to clearly distinguish the jurisdiction of district-level courts and provincial-level courts in resolving administrative cases:

Firstly, there are significant changes in the jurisdiction to resolve administrative cases of the district courts and provincial courts in the Law on Administrative Procedures 2015. Specifically, for administrative decisions and administrative acts of the district People's Committee, the Chairman of the district People's Committee, the jurisdiction to resolve them at first instance belongs to the provincial court instead of the district court as stipulated in the Law on Administrative Procedure 2010. This provision is significant in promoting democracy, transparency, and openness in the administrative system, creating conditions for judges to adhere to the principles of independence and obedience to the law. The change in jurisdiction is based on the following reasons:

- Resolution No. 49-NQ/TW dated June 02, 2005 of the Politburo on the Strategy for Judicial Reform until 2020 determines the increase in jurisdiction of the district courts, but it needs to be implemented according to a roadmap and ensure the effectiveness and quality of resolving cases within the jurisdiction of the district courts to best protect human rights and citizen rights under the Constitution 2013.

- The practice of resolving administrative cases shows that the majority of complaints against administrative decisions and administrative acts of the district People's Committee, the Chairman of the district People's Committee, related to state management of land have complex nature and the resolution is related to the defendants who hold positions and powers, therefore, judges with in-depth knowledge, experience, and competence are needed to effectively resolve the cases. The current resolution of administrative decisions and administrative acts at the district level does not ensure quality; the rate of annulled or amended cases is high.

- Assigning the provincial courts to resolve complaints against administrative decisions and administrative acts of the district People's Committee, the Chairman of the district People's Committee will overcome the hesitancy and deference of judges in the trial process; if there are appeals or protests, they will be resolved by the higher People's Court according to the appellate and cassation procedures, thus ensuring a higher level of independence and obedience to the law in the trial process of judges and guaranteeing objective and effective resolution of cases.

- On the other hand, according to the provisions of the Law on the Organization of People's Courts 2014 and the newly enacted procedural laws, the provincial courts no longer have the function of cassation. Therefore, assigning the provincial courts to resolve complaints against administrative decisions and administrative acts of the district People's Committee, the Chairman of the district People's Committee will not overload the workload of the provincial courts.

To ensure feasibility and have a roadmap in the implementation of the provisions of the Law on Administrative Procedure 2015, Clause 5 of Article 1 of Resolution No. 104/2015/QH13 dated November 25, 2015 of the National Assembly on the implementation of the Law on Administrative Procedure stipulates: From July 01, 2016, for complaints against administrative decisions and administrative acts of the district People's Committee, the Chairman of the district People's Committee that have been accepted by the district court for resolution before July 01, 2016, the court shall continue to handle them according to the general procedure without transferring them to the provincial court for resolution.

Secondly, according to Clause 8 Article 32 of the Law on Administrative Procedures 2015: “When necessary, provincial-level courts may pick up lawsuits under jurisdiction of district-level courts for settlement under Article 31 of this Law”. This provision has been guided in Article 4 of Resolution No. 02/2011/NQ-HDTP dated July 29, 2011 of the Judicial Council of the Supreme People's Court guiding the implementation of certain provisions of the Law on Administrative Procedure (Resolution No. 02/2011/NQ-HDTP). According to the contents that have been guided, the following complaints also fall within the jurisdiction of the provincial court:

- Complaints against administrative decisions and administrative acts within the jurisdiction of the district court that are all rejected for litigation or changed by the judges of the district court;

- Cases involving parties or assets abroad or requiring legal representation to be entrusted to the diplomatic representative office of the Socialist Republic of Vietnam abroad or the competent authority of a foreign country.

3. Determination of jurisdiction in case both complaint and lawsuit petitions are filed

In order to overcome difficulties and obstacles in the practical application and legalization of relevant provisions, based on the guidance in Article 5 of Resolution No. 02/2011/NQ-HDTP, Article 33 of the Law on Administrative Procedures 2015 clearly defines the jurisdiction of the court to resolve according to the choice of the plaintiff in cases where the plaintiff both files a complaint and initiates administrative litigation at the court, specifically as follows:

- 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:

+ 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;

+ 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.

- In case many persons institute an administrative lawsuit at a competent court and concurrently file a complaint with a person competent to settle complaints and all of them select either of these entities to settle the case, the competence to settle the case must comply with Clause 1 of this Article.

- In case many persons institute an administrative lawsuit at a competent court and concurrently file a complaint with a person competent to settle complaints and some of them select the court to settle the case, while others select the persons competent to settle complaints or in case some only institute an administrative lawsuit at a competent court while others only file a complaint with a person competent to settle complaints, the competence to settle the case shall be determined as follows:

+ In case the interests and obligations of the plaintiffs and complainants are independent from one another, the settlement of the claim of the plaintiffs falls under jurisdiction of the court while the settlement of the complaint of the complainants falls under the competence of the person competent to settle complaints;

+ In case the interests and obligations of the plaintiffs and complainants are not independent from one another, the court shall accept the case for settlement according to general procedures and notify such to the person competent to settle complaints, requesting him/her to transfer the whole dossier for complaint settlement to the court.

- In case the plaintiff does not select an agency to settle the case, the court shall return the lawsuit petition to the plaintiff.

4. Transfer of cases to other courts and settlement of disputes over jurisdiction

- The transfer of a case to another court in cases where the court has already accepted administrative litigation but later discovers that it is a different case or falls within the jurisdiction of another court has been guided in Article 6 of Resolution No. 02/2011/NQ-HDTP. These contents have been legalized in Articles 1, 2, 3, 4, and 5 of Article 34 of the Law on Administrative Procedures 2015, specifically as follows:

+ In the course of settlement of an administrative case according to the first-instance procedures, if the court determines that such case is a civil case but not an administrative one and the settlement thereof falls under its jurisdiction, it shall settle such case according to general procedures prescribed by the civil procedure law, and concurrently notify such to the involved parties and the same-level procuracy.

+ Before deciding to bring a case to trial according to the first-instance procedures, if there is a ground to determine that the settlement of the case falls under the jurisdiction of another court, the judge assigned to settle the administrative case shall issue a decision to transfer the case file to a competent court and delete it from the case acceptance book and concurrently notify such to the involved parties and the same-level procuracy.

+ After issuing a decision to bring a case to trial according to the first-instance procedures, if there is a ground to determine that the settlement of the administrative case falls under the jurisdiction of another court, the court shall hold a hearing for the trial panel to issue a decision to stop the trial and transfer the case file to the competent court.

+ When trying an administrative case according to appellate procedures, if determining that the case falls into the case specified in Clause 1 or 2 Article 34 of this Law, the appellate court shall quash the first-instance judgment or ruling and transfer the case file to the court with the first- instance trial jurisdiction for first-instance retrial of the case in accordance with law.

+ When trying an administrative case according to cassation or reopening procedures, if determining that the case falls into the case specified in Clause 1 or 2 Article 34 of this Law, the cassation or reopening court shall quash the legally effective judgment or ruling and transfer the case file to the court with the first-instance trial jurisdiction for first-instance retrial of the case in accordance with law.

- In order to align with the provisions of the Law on the Organization of People's Courts 2014 regarding the structure, organization, and jurisdiction of the courts, Clause 7 of Article 34 of the Law on Administrative Procedures 2015 has been amended and supplemented to address disputes over jurisdiction between courts, specifically as follows:

+ The chief justice of a provincial-level court shall settle disputes over the jurisdiction to settle administrative cases between district-level courts in the same province or centrally run city.

+ Chief justices of superior people’s courts shall settle disputes over the jurisdiction to settle an administrative case between district-level courts in different provinces or centrally run cities or between provincial-level courts under the territorial jurisdiction of superior people’s courts.

+ The Chief Justice of the Supreme People’s Court shall settle disputes over the jurisdiction between district-level courts in different provinces or centrally run cities or provincial-level courts under the territorial jurisdiction of different superior people’s courts.

5. Consolidation or split-up of administrative cases

To avoid arbitrary application and to be in line with practicality, based on the guidance in Article 7 of Resolution No. 02/2011/NQ-HDTP, Article 35 of the Law on Administrative Procedures 2015 specifies the procedures for consolidation or separation of administrative cases as follows:

- A court may consolidate two or more cases it has separately accepted into a sole case for settlement according to administrative procedures when the following conditions are fully satisfied:

+ Separately accepted cases have the same plaintiff instituting lawsuits over many administrative decisions or acts issued or taken by an agency or organization or a competent person in such agency or organization and are closely related to one another, or separately accepted cases have different plaintiffs instituting lawsuits over the same administrative decision or act;

+ The consolidation of two or more administrative cases into a sole administrative case must ensure the quick, effective and thorough trial and shall be conducted within the time limit for trial preparation.

- A court may split up a case involving different claims into two or more administrative cases for settlement in case an administrative decision over which a lawsuit is instituted is related to many plaintiffs whose interests and obligations are unrelated.

In summary, compared to the Law on Administrative Procedure 2010, the Law on Administrative Procedures 2015 of Vietnam has made many amendments and supplements related to the jurisdiction of the court in resolving administrative complaints. These amendments and supplements have concretized the provisions of the Constitution 2013, the Law on the Organization of People's Courts 2014, and have addressed difficulties and shortcomings in the process of resolving and adjudicating administrative complaints. They ensure that the court effectively fulfills its assigned functions and tasks, guarantee the feasibility, transparency, publicness, fairness, and convenience of administrative litigation procedures, and facilitate the participants in exercising their rights and obligations. Furthermore, they ensure the consistency and unity of the legal system.

Source: Journal of Democracy and Law

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