The Ministry of Justice issued Official Dispatch 4218/BTP-VDCXDPL on November 28, 2016, in response to the provisions of the Law on Promulgation of Legal Documents of 2015 and Decree 34/2016/ND-CP. Some provisions in the two above-mentioned documents have been clarified by the Ministry of Justice upon the request of ministries, central authorities, and local authorities as follows:
Article table of contents
Determination of Legal Documents at District and Commune Levels
Issuance Authority of Legal Documents at District and Commune Levels; How is the "by law delegation" understood?
According to Article 30 of the Law on Promulgation of Legal Normative Documents 2015, it stipulates: "The district and commune People's Councils shall issue resolutions, district and commune People's Committees shall issue decisions to regulate issues delegated by the law." Thus, since the effective date of the 2015 Law (July 1, 2016), the district and commune People's Councils (HDND), and People's Committees (UBND) shall only issue legal normative documents when delegated by law, not by other types of documents.
In cases where legal normative documents at district and commune levels were issued before the 2015 Law took effect to specify the regulations of superior state agencies' legal normative documents such as: resolutions of the Standing Committee of the National Assembly, decisions of the Prime Minister, circulars of ministries, they shall continue to remain effective until replaced or annulled.
Annulment of Legal Normative Documents
What form should the HDND, UBND use to annul a legal normative document they issued: "legal normative document" or "administrative document"?
Clause 1, Article 12 of the 2015 Law on Promulgation of Legal Normative Documents stipulates: "A legal normative document can only be amended, supplemented, replaced, or annulled by another legal normative document issued by the same state agency, or be suspended or annulled by a document of a superior state agency with authority."
Thus, to annul a legal normative document they issued, HDND, UBND can use the following methods:
- The HDND, UBND issues a legal normative document to annul the legal normative document they previously issued. This method aligns with the issuance authority of HDND, UBND at all levels, even in cases where the HDND, UBND at district and commune levels issue legal normative documents to annul their previously issued legal normative documents, because Clause 1, Article 12 of the 2015 Law on Promulgation of Legal Normative Documents granted these agencies the authority to issue documents.- A commune HDND requests the district HDND, a district HDND requests the provincial HDND, a subordinate UBND requests the directly superior UBND to issue an administrative document to annul the legal normative document they issued. This method also aligns with the 2015 Law on Promulgation of Legal Normative Documents and Clause 1, Article 19 of the 2015 Law on Local Government Organization.
- Regarding directives issued as legal normative documents by the various levels of UBND before the 2015 Law on Promulgation of Legal Normative Documents took effect: Clause 2, Article 172 of the 2015 Law on Promulgation of Legal Normative Documents stipulates: "... directives of the district and commune People's Committees issued before this Law took effect continue to remain effective until annulled or replaced by another legal normative document." Therefore, the various levels of UBND can issue administrative decisions to annul directives that were issued as legal normative documents.
Effective Date of HDND Resolutions
According to Clause 1, Article 151 of the 2015 Law on Promulgation of Legal Normative Documents in effect, the effective date of all or part of a legal normative document is specified in the document but not sooner than 10 days from the date of signing and issuance for legal normative documents of provincial HDND, UBND; not sooner than 07 days from the date of signing and issuance for legal normative documents of district and commune HDND, UBND.
Simultaneously, as per Clause 3, Article 126, Clause 3, Article 137, and Clause 4, Article 143 of the 2015 Law on Promulgation of Legal Normative Documents, after HDND votes to pass the draft resolution, the Chairman of HDND will sign it to certify the resolution. Thus, the effective date of all or part of the resolution of HDND at all levels is specified in that resolution. The date to ensure the regulation of no sooner than 10 days for provincial HDND resolutions; no sooner than 07 days for district and commune HDND resolutions is computed from the date the Chairman of HDND signs to certify the resolution.
This is a new provision in the 2015 Law on Promulgation of Legal Normative Documents compared to the 2004 Law on Promulgation of Legal Normative Documents of People's Councils and People's Committees.
The 2004 Law on Promulgation of Legal Normative Documents of People's Councils and People's Committees stipulates the effective date of legal normative documents of People's Councils and People's Committees as follows:
- Legal normative documents of provincial People's Councils and People's Committees take effect after ten days and must be published in the provincial newspaper no later than five days from the date the People's Council passes or the Chairman of the People's Committee signs the issuance, except in cases where the document specifies a later effective date.- Legal normative documents of district People's Councils and People's Committees take effect after seven days and must be posted no later than three days from the date the People's Council passes or the Chairman of the People's Committee signs the issuance, except in cases where the document specifies a later effective date.
- Legal normative documents of commune People's Councils and People's Committees take effect after five days and must be posted no later than two days from the date the People's Council passes or the Chairman of the People's Committee signs the issuance, except in cases where the document specifies a later effective date.
- For legal normative documents of the People's Committee stipulating measures to address emergent and urgent issues as per Article 47 of this Law, an earlier effective date may be specified.
Thus, the determination of the effective date for resolutions of the various levels of People's Councils is based on the date the People's Council passes according to the 2004 Law on Promulgation of Legal Normative Documents of People's Councils and People's Committees. Meanwhile, the new Law's determination of the effective date is based on the date of signing and issuance.
Restriction of Regulating Administrative Procedures in Legal Normative Documents
The Ministries: Natural Resources and Environment, Education and Training, Science and Technology, Culture, Sports, and Tourism, Transport, Health; Departments of Justice of provinces and cities: Ben Tre, Binh Duong, Kien Giang, Khanh Hoa, Da Nang, Phu Tho, Lao Cai, Dien Bien requested information on regulating administrative procedures in legal normative documents of central and local levels, specifically:
- Cases allowing the regulation of administrative procedures in circulars by Ministers, heads of equivalent-level agencies, and local legal normative documents;- Modification and supplementation of regulations on administrative procedures in circulars by Ministers, heads of equivalent-level agencies, and local legal normative documents;- Regulating administrative procedures in provincial People's Council resolutions stipulated in Clause 4, Article 27 of the 2015 Law.
Guidelines for regulating administrative procedures in legal normative documents of central and local levels in the aforementioned cases are as follows:
- Cases allowing the regulation of administrative procedures in circulars by Ministers, heads of equivalent-level agencies, and local legal normative documents.
Pursuant to Clause 4, Article 14 of the 2015 Law on Promulgation of Legal Normative Documents, as of July 1, 2016, circulars by Ministers, heads of equivalent-level agencies, and local legal normative documents are not allowed to regulate administrative procedures unless delegated by law. According to this regulation, the aforementioned documents may only regulate administrative procedures if mandated by law, not by sub-law documents, and must be directly mandated by law without inferring from the state management function of the agencies.
Currently, some laws issued before the 2015 Law on Promulgation of Legal Normative Documents took effect authorize Ministers, heads of equivalent-level agencies to implement one or multiple specific contents without directly mandating the regulation of administrative procedures. Meanwhile, to execute the assigned tasks, ministries, and central authorities need to stipulate administrative procedures. Therefore, to fulfill the tasks assigned in the laws issued before July 1, 2016, and to meet the state management demands of ministries, central and local authorities, the ministries, central and local authorities may regulate administrative procedures in cases where the law delegates the detailed specification of specific contents of the law that give rise to administrative procedures.
- Modification and supplementation of administrative procedure regulations in circulars by Ministers, heads of equivalent-level agencies, and local legal normative documents
Clause 4, Article 172 of the 2015 Law on Promulgation of Legal Normative Documents provides the transitional rule as follows: "Regulations on administrative procedures in legal normative documents issued by the authorities specified in Clause 4, Article 14 of this Law before this Law took effect shall continue to apply until annulled by another document or replaced by new administrative procedures." Thus, Clause 4, Article 172 of the 2015 Law on Promulgation of Legal Normative Documents provides clear regulations for uniform application. In practical state management of ministries, central and local authorities, there may arise a need to modify and supplement some contents of administrative procedures issued. However, such modification and supplementation can only be done without leading to new administrative procedures beyond the scope delegated by law and should not complicate the current administrative procedures.
- Regulating administrative procedures in provincial People's Council resolutions as specified in Clause 4, Article 27 of the 2015 Law
According to Clause 4, Article 27 of the 2015 Law on Promulgation of Legal Normative Documents, provincial People's Councils have the authority to promulgate resolutions to regulate measures of a special nature suitable to the socio-economic development conditions of the locality. If implementing these special measures requires stipulating procedures, methods of implementation, dossiers, requirements, conditions... regulating these contents in provincial People's Council resolutions is consistent with the provision of "delegated by law." However, the regulation of locally special measures must ensure conformity with the policies and guidelines of the Communist Party and State, and ensure the constitutionality, legality, and uniformity of the legal system.
Numbering, Symbols of Legal Normative Documents
In principle, the numbering of legal normative documents at the commune level must comply with the regulations of the 2015 Law and Decree No. 34. Clause 2, Article 58 of Decree No. 34 stipulates: "The number of a document is recorded in Arabic numerals, including the registration ordinal number for each type of document issued by the authority within one year, and the year of issuance; starting sequentially from number 01 on January 1 and ending on December 31 each year; the year of issuance must be recorded in full."
According to this regulation, legal normative documents must be numbered sequentially, starting from number 01 on January 1 and ending on December 31 each year. Therefore, using a common numbering system for both legal normative documents and individual administrative documents is not appropriate.
