Vietnam: Determining jurisdiction in cases where there is both a complaint and a lawsuit filed for an administrative case

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.

Concurrently, according to Article 30 of the Law on Administrative Procedures 2015 of Vietnam, the court has jurisdiction to resolve administrative decisions and administrative acts disputes. However, in practice, there are cases where the plaintiff submits a complaint to the competent authority for resolving complaints and simultaneously files an administrative case with the court. How is the settlement in such situations?

According to Article 33 of the Law on Administrative Procedures 2015 of Vietnam, 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/ 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 has 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.

The Law on Administrative Procedures 2015 also specifies that 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:

a/ 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;

b/ 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.

The plaintiff and persons with related interests and obligations in an administrative case may concurrently claim compensation for damage caused by an administrative decision.

The plaintiff and persons with related interests and obligations that claim compensation for damage shall provide documents and evidence. In case of necessity, the court may verify and collect documents and evidence to ensure the accurate settlement of the case.

A claim for compensation for damage in an administrative case shall be settled under regulations on state compensation liability and the civil procedure law.

In case an administrative case involves a claim for compensation for damage but under no condition can such claim be proved, the court may separate such claim from this case for subsequent settlement in another civil case in accordance with the civil procedure law.

Agencies, organizations and individuals may decide to institute administrative lawsuits. Courts shall accept administrative cases for settlement only when lawsuit petitions are filed by plaintiffs. In the course of settlement of administrative cases, plaintiffs may change, add or withdraw their lawsuit claims and exercise other procedural rights in accordance with regulations.

Source: Department of Justice of Binh Thuan Province

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