04 new points in regulations on complaints applied in Vietnam from December 10, 2020

1. Regulation on procedures and time limit for second complaint

According to Article 4 of the Decree No. 124/2020/NĐ-CP of Vietnam’s Government, within 30 days after expiry of complaint-handling time limit, if the first complaint remains unresolved or the complainant, after receiving the decision on first complaint handling, does not feel the complaint has been settled to his/her satisfaction, he/she may file the second complaint to the second complaint-handling person; regarding remote and isolated areas, the time limit may extend but not longer than 45 days.

Note: If making the second complaint, the complainant shall file the second complaint together with the decision on first complaint handling, and supporting documents to the second complaint-handling person.

Upon expiry of the given time limit, if the first complaint remains unresolved, the complainant may file the second complaint with the second complaint-handling person, stating reasons and enclosing supporting documents of the complaint.

The second complaint-handling person shall accept the complaint and proceed with the procedures for handling of the second complaint. The decision made by this person in this case is the decision on second complaint handling.

In particular, the second complaint-handling person shall take actions against the first complaint-handling person if finding any violation of law (completely new provision).

While, according to Article 3 of the Decree No. 75/2012/NĐ-CP of Vietnam’s Government (expires from December 10, 2020) on complaints, settlement of complaint against administrative decisions, administrative acts in the public service providing units, state-owned enterprises, it is only stipulated the person competent to settle the second complaint without stipulating the order and time limit for the second complaint.

From December 10, 2020, the second complaint is detailed and clear and will be done in accordance with Decree No. 124/2020/NĐ-CP.

2. Authorization for others to make complaints is detailed and clear right in Decree 124

According to Article 5 of the Decree No. 124/2020/NĐ-CP of Vietnam’s Government, the complainant may, on their own or authorizing a lawyer, legal aid provider or another person with full legal capacity, file a complaint.

In particular, if the complainant is a minor or legally incapacitated person, his/her legal representative shall file a complaint. The representative shall be determined as per civil law.

Corporations shall file a complaint through their legal representatives. The representative of the corporation may authorize a lawyer or another person with full legal capacity to file a complaint.

Note: The authorization must be made in writing and certified or notarized. The principal (in the letter of authorization) may authorize the complaining right to one or more authorized people with respect to varied contents of authorization but may not authorize the same content of authorization to multiple authorized people. The letter of authorization is made in accordance with Form No. 02 hereto appended.

According to Clause 1 Article 5 of the Decree No. 75/2012/NĐ-CP of Vietnam’s Government, it is only stipulated that while many people complain together in the same content, they must appoint a representative to present the complaint; and the representative must be the complainant. According to this provision, the authorization for others to make complaints on someone’s behalf is not allowed.

Thus, the Decree No. 124/2020/NĐ-CP of Vietnam’s Government has completely new regulations on authorizing others to make complaints. Concurrently, there is the provision that if the complainant is a minor or legally incapacitated person, his/her legal representative shall file a complaint. This new provision can be seen in the favor of the complainant, easily applying the authorization to others to best ensure their legitimate rights and interests when participating in the complaint.

3. Shortening the procedures for handling complaints

According to Articles 16 - 30 of the Decree No. 124/2020/NĐ-CP of Vietnam’s Government, the procedures for handling complaints are carried out in the 03 following steps:

Step 1: Acceptance and preparation for verification of complaints

- Acceptance of complaints;

- Review of administrative decision or action, disciplinary decision against official;

- Designation of duty to verify the complaining matter.

(Articles 7 and 8 of Circular No. 07/2013/TT-TTCP further stipulated the decision to assign the task of verifying the complaint, the decision to verify the content of the complaint and the plan to verify the content of the complaint).

Thus, from December 10, 2020, the complaint settler or the agency, organization or unit assigned to verify the complaint will self-issue a decision on verification of the complaint content, which clearly identifies the person performing the verification, the rights and obligations of the person performing the verification, the time and content of the verification.

Step 2: Verification of the complaining matter

- Working with the complainant, spokesperson, authorized person, lawyer, legal aid provider of the complainant;

- Working with the person with relevant rights and interests and the complainee;

- Requesting relevant entities to provide information, documentation and proof;

- Receipt and processing of information, documentation and proof;

- Verification visit;

- Soliciting expert advice;

- Working with concerned parties during verification of the complaining matter;

- Suspension of enforcement of the administrative decision complained of;

- Report on verification of complaining matter;

Dialogue in the second complaint-handling process.

(Articles 9, 19 and 20 of Circular No. 07/2013/TT-TTCP further stipulated the procedure for announcing the decision to verify the complaint content, suspend the complaint settlement and consult with the complaint settlement consultant).

Step 3: Issuance, sending, disclosure of complaint-handling decision, keeping and management of complaint-handling dossier

- Issuance, sending and disclosure of complaint-handling decision;

- Keeping and managing the complaint-handling dossier.

Thus, it can be seen that the procedures for handling complaints according to Decree No. 124/2020/NĐ-CP of Vietnam’s Government have been simplified compared to previous regulation, which are in line with the trend of simplifying administrative procedures in order to shorten the time as well as improve the efficiency of complaint settlement.

4. Wrongdoer may be disciplined

According to Article 39 of the Decree No. 124/2020/NĐ-CP of Vietnam’s Government, if the complaint-handling person, verifying person, or enforcing person of the legally-effective complaint-handling decision commits any violation of law, depending on nature and severity of the violation, the wrongdoer may be disciplined.

Disciplinary actions include reprimand, warning, downgrade of pay step, demotion, or dismissal. If the violation shows signs of offense, the wrongdoer will face a criminal prosecution; if the damage is caused, the wrongdoer must pay restitution or reimbursement as per the law.

The rules, power, procedures and other issues related to the disciplinary action against the complaint-handling person, verifying person or enforcing person who commits the violation not stipulated in this Decree shall comply with the law on disciplinary actions against officials and public employees.

This is a completely new regulation of Decree No. 124/2020/NĐ-CP of Vietnam’s Government, which was not mentioned in Decree No. 75/2012/NĐ-CP. Thus, from December 10, 2020, if the complainant or any relevant entity commits a violation, depending on nature and severity of the violation, they shall face an administrative penalty or a criminal prosecution.

Le Vy

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