Summary of Basic New Points of the Law on Promulgation of Legislative Documents 2015 in Vietnam

1. Regarding the format of legislative documents in Vietnam

According to the provisions of Article 3 of the Law on Promulgation of Legislative Documents of 2015, the system of legislative documents includes 15 types of legislative documents. Thus, compared to the 2008 Law, the 2015 Law reduces 05 types of legislative documents. Notably, the Law has eliminated the form of Joint Circular between Ministers, Heads of ministerial-level agencies. Issues related to the tasks and powers of two or more ministries, ministerial-level agencies are issued in the form of Decrees of the Government of Vietnam.

2. The 2015 Law adds 01 article on prohibited acts (Article 14), including the following acts:

- Issuing legislative documents contrary to the Constitution, contrary to the legislative documents of higher-level state agencies;

- Issuing documents not belonging to the system of legislative documents;

- Issuing legislative documents not in accordance with authority, form, sequences, and procedures stipulated in the Law on Promulgation of Legislative Documents;

- Regulating administrative procedures in legislative documents of the Chief Justice of the Supreme People's Court, the Director of the Supreme People's Procuracy; Ministers, Heads of ministerial-level agencies; General State Auditor; People's Councils, People's Committees at all levels, special administrative-economic units, except as authorized by law.

3. Regarding the responsibility of agencies, organizations, competent persons in the formulation and promulgation of legislative documents in Vietnam

The 2015 Law adds 01 article (Article 7) on the responsibility of agencies, organizations, and competent persons participating in the process of formulating and promulgating legislative documents. Noteworthy contents include:

- Agencies, organizations, and competent persons submitting projects, drafts of legislative documents are responsible for the progress and quality of the projects and drafts they submit.

- Agencies and organizations primarily involved in drafting legislative documents are responsible to the submitting agencies, organizations, competent persons, or promulgating agencies for the drafting progress and quality of the assigned projects and drafts.

- Agencies, organizations, and competent persons consulted for the construction of legislative documents and draft legislative documents are responsible for the content and deadlines of their contributions.

- The appraisal agency is responsible to the submitting agency, organization, competent person, or promulgating authority for the results of appraising the proposals for formulating legislative documents, projects, and drafts of legislative documents.

- Agencies, individuals with competent authority are responsible for promulgating detailed regulations beyond the scope of delegated detailed regulations.

- Heads of agencies, organizations presiding over drafting, appraisal agencies, submitting agencies, verification agencies, and promulgating agencies within their tasks and authorities are responsible for incomplete assignments and are handled according to the law on officials and other relevant laws if the drafts are of insufficient quality, are delayed, or do not ensure the legality and consistency of the legislative documents being executed.

4. Regarding the legislative and ordinance building program

The 2015 Law does not stipulate the legislative and ordinance building program for the National Assembly term but only retains the annual legislative and ordinance building program.

5. Supplementing the policy formulation process

The 2015 Law supplements the policy planning and analysis process before drafting legislative documents by distinguishing from the drafting process.

The policy formulation process applies to laws, ordinances, and the following types of decrees by the Government of Vietnam:

- Decrees regulating issues related to the tasks and powers of two or more ministries, ministerial-level agencies;

- Decrees regulating tasks, powers, organizational structure of Ministries, ministerial-level agencies;

- Decrees specifying measures to implement the Constitution, laws, resolutions of the National Assembly, ordinances, resolutions of the Standing Committee of the National Assembly, orders, decisions of the President;

- Decrees stipulating measures to implement socio-economic, defense, security, financial, monetary, budget, tax, ethnicity, religion, culture, education, health, science, technology, environment, foreign affairs policies, public service policies, officials and public employees' rights and obligations;

- Decrees regulating other issues under the management and operational authority of the Government of Vietnam;

- Decrees regulating necessary issues within the authority of the National Assembly, the Standing Committee of the National Assembly but cannot yet be promulgated as laws or ordinances to meet State management, economic management, or social management requirements. Before promulgating these decrees, the consent of the Standing Committee of the National Assembly must be received.

5.1. Policy formulation process for laws and ordinances

Step 1: Proposing the formulation of laws, ordinances

Firstly, the competent authority conducts: Reviewing the implementation of the law, researching, evaluating the actual social situation related to the proposed formulation of laws, ordinances; scientific research, information, documents, international treaties to which the Socialist Republic of Vietnam is a member; constructing the policy contents in the draft laws and ordinances, methods for implementing the policies, evaluating the impact of policies, methods, and reasons for selecting policies; estimates of resources, condition guarantees for implementing laws, and ordinances.

Secondly, preparing the dossier for proposing the formulation of laws and ordinances as stipulated in Article 37, the dossier includes: (1) Proposal report for formulating laws and ordinances; (2) Impact assessment reports of policies in the proposal for formulating laws and ordinances; (3) Summarized reports on law implementation or assessment of the actual social situation related to the proposal for formulating laws and ordinances; (4) Summary and explanation, inclusion of comments from the Ministry of Finance, Ministry of Home Affairs, Ministry of Foreign Affairs, Ministry of Justice and comments from other agencies, organizations; captured comments; (5) Draft outline of laws and ordinances.

The 2015 Law stipulates mandatory procedures for gathering comments and critiques for the impact assessment report of the policy.

Thirdly, gathering opinions from related agencies and organizations on the proposal for formulating laws and ordinances; posting summarized reports, impact assessment reports of policies on the Government of Vietnam's portal for the Government of Vietnam's proposals, and on the portal of the proposing agency or organization (posting time is at least 30 days); summarizing, researching, incorporating, and explaining feedback; posting the explanation summary report on the proposing agency or organization’s portal.

In addition, Article 36 of the Law mandates gathering opinions from the Ministry of Finance, Ministry of Home Affairs, Ministry of Foreign Affairs, and Ministry of Justice on proposals for formulating laws and ordinances.

Step 2: Appraising the proposal for formulating laws and ordinances (Article 39)

The 2015 Law mandates appraising proposals for formulating laws and ordinances and assigns the Ministry of Justice to lead, in cooperation with the Ministry of Finance, Ministry of Home Affairs, Ministry of Foreign Affairs, and related agencies, to appraise before submitting to the Government of Vietnam.

Step 3: Submitting the proposal for formulating laws and ordinances to the Government of Vietnam (Article 40)

The proposing agency for formulating laws and ordinances is responsible for submitting the proposal to the Government of Vietnam no later than 20 days before the Government’s meeting. The submission dossier includes the documents specified in Article 37; appraisal reports on the proposal for formulating laws and ordinances; explanation reports for the appraisal opinions and other documents (if any).

Step 4: The Government of Vietnam reviews and approves the proposal for formulating laws and ordinances (Articles 41, 42, and 43)

The Government of Vietnam will hold a meeting to review proposals for formulating laws and ordinances and issue resolutions. Policies are approved when over half of the total Government members vote in favor. Based on the Government of Vietnam's resolution, the proposing ministry, ministerial-level agency completes the proposal dossier for formulating laws and ordinances and sends it to the Ministry of Justice to formulate the Government’s proposal for the legislative and ordinance building program. The Government of Vietnam's proposal for the legislative and ordinance building program is approved when more than half of the Government members vote in favor.

Step 5: Submitting the proposal dossier for formulating laws and ordinances to the Standing Committee of the National Assembly (Article 46)

No later than March 1st of the preceding year, the proposal for formulating laws and ordinances must be submitted to the Standing Committee of the National Assembly to formulate the annual legislative and ordinance building program of the National Assembly and simultaneously be sent to the Law Committee for verification.

Step 6: Verifying the proposal for formulating laws and ordinances (Article 47)

The Law Committee aggregates and presides over verifying the legislative and ordinance building program proposal.

Step 7: The Standing Committee of the National Assembly reviews the proposal for formulating laws and ordinances to formulate the annual legislative and ordinance building program (Article 48)

Step 8: The National Assembly reviews and approves the annual legislative and ordinance building program (Article 49)

5.2. Policy formulation process in decrees of the Government of Vietnam

Step 1: Proposing the formulation of decrees

The proposing agency is responsible for reviewing the implementation of laws, evaluating existing legal documents related to the proposal for formulating decrees; researching and evaluating the actual social situation; organizing research on information, documents, international treaties to which the Socialist Republic of Vietnam is a member related to the proposal for formulating decrees; constructing the policy contents in the proposal for formulating decrees; evaluating policy impacts; estimating resources, and condition guarantees for implementing the decrees after being approved by the Government of Vietnam; gathering opinions on the proposal for formulating decrees (minimum collection period of 30 days) and preparing the dossier for proposing the formulation of decrees as stipulated in Article 87 of this Law.

Step 2: Appraising the proposal for formulating decrees (Article 88)

The Ministry of Justice leads, in cooperation with the Ministry of Finance, Ministry of Home Affairs, Ministry of Foreign Affairs and related agencies, to appraise the proposal for formulating decrees.

Step 3: The Government of Vietnam reviews and approves the proposal for formulating decrees (Article 89)

Based on the proposal dossier submitted by the Ministries, ministerial-level agencies, the Government of Vietnam will review and approve the proposal for formulating decrees at the Government’s meeting. The Office of the Government of Vietnam leads the drafting of a resolution on the proposal for formulating decrees and submits it to the Prime Minister for signing and promulgating.

6. Process of drafting and issuing circulars of Ministers:

- During drafting, the Ministry must gather opinions from the directly affected entities of the document, specifying issues needing opinions suitable for each consultation subject and identifying specific addresses for receiving feedback; summarizing, researching, incorporating, and explaining feedback; assessing the impact of the document, evaluating administrative procedures in the document if assigned to regulate administrative procedures;

- For circulars directly affecting the rights, obligations, and interests of citizens, enterprises or involving multiple sectors, the Minister organizes an advisory appraisal board involving related agencies, organizations, units, experts, and scientists to appraise the draft circular.

7. Amending and supplementing some regulations on drafting, appraisal, verification, review, and approval of legislative documents

- Appraisal and verification reports must clearly state whether the project, draft meets or does not meet the conditions for submission. If the Ministry of Justice concludes that the project, draft does not meet the conditions for submission to the Government of Vietnam, it returns the dossier to the drafting agency to continue revision and perfection (Clause 4, Article 58); if the verifying agency comments that the project, draft does not meet the conditions for submission to the Standing Committee of the National Assembly or the National Assembly, it reports to the Standing Committee of the National Assembly to consider returning the dossier to the presenting agency for continued revision and perfection (Article 67);

- Adding procedures for reviewing and approving law projects at three National Assembly sessions for large, complex projects with many clauses (Article 76).

8. Expanding democracy and enhancing transparency in drafting legislative documents

Firstly, for laws, ordinances, decrees of the Government of Vietnam, the collection of opinions is considered a mandatory procedure in both the policy proposal stage and the drafting stage. The posting period for collecting opinions is at least 30 days for policy proposals and at least 60 days for project, draft documents. For decrees with detailed regulations, decisions of the Prime Minister of the Government of Vietnam, circulars of Ministers, Heads of ministerial-level agencies, etc., the collection of opinions is conducted when there is a draft document (minimum posting period of 60 days).

Secondly, mandatory collection of opinions from the Ministry of Finance, Ministry of Home Affairs, Ministry of Foreign Affairs, and Ministry of Justice for proposals to formulate laws, ordinances, and decrees.

Thirdly, the content of the collected opinions must be suitable for each consultation subject and focuses on large, important policies directly affecting enterprises, individuals. During the drafting of laws, ordinances, will resolutions, if the drafting agency significantly revises the draft document, it must repost the revised draft document (Clause 1, Article 57).

Fourthly, openly posting explanation reports on gathering, incorporating feedback on the above portals (Clause 1, Article 36; Clause 3, Article 57; Clause 3, Article 86). Moreover, the 2015 Law supplements the requirement of responding to opinions and recommendations of individuals, agencies, organizations as a principle in the construction and promulgation of legislative documents (Article 5).

9. Regarding the formulation and promulgation of legislative documents in simplified procedures

- Adding 03 cases (Article 146), including: (1) Urgent and emergency cases in preventing natural disasters, epidemic, fires, and explosions; (2) Urgent cases to address emerging issues in practice as decided by the National Assembly; (3) Cases for suspending all or part of legislative documents for a specific period.

- Regulations on the effective date of legislative documents promulgated in simplified procedures: Llegislative documents promulgated in simplified procedures can take effect from the date of passing or signing, while also being posted immediately on the electronic portal of the issuing agency and announced in the mass media; published in the Official Gazette of the Socialist Republic of Vietnam or the Provincial/City Official Gazette within 03 days from the publication or signing date (Clause 2, Article 151).

10. On the issuance of detailed regulatory documents

The 2015 Law adds new regulations such as:

- Regulation: “Drafting of detailed regulatory documents must be prepared and submitted simultaneously with the draft law, ordinance” (Clause 1, Article 11);

- Responsibility of agencies, competent persons in the delayed issuance of detailed regulatory documents (Clause 6, Article 7).

11. Regarding the publication in the Official Gazette, announcement, posting, reporting of legislative documents

- No regulation stipulates that “legislative documents not published in the Official Gazette are ineffective.”

- Adding regulations on posting legislative documents on the National Database of Law; legislative documents posted on the National Database of Law have official usage value (Article 157).

12. Effectiveness and principle of applying legislative documents

- Adding 01 clause stipulating “When legislative documents expire, the detailed regulatory documents thereof also expire simultaneously.”

- Adding 01 clause in Article 156 stipulating the principle of prioritizing the application of international treaties when Vietnamese legal documents and international treaties to which Vietnam is a member have different provisions on the same issue. Specifically: “Applying domestic legislative documents should not hinder the implementation of international treaties to which the Socialist Republic of Vietnam is a member. When domestic legislative documents and international treaties to which the Socialist Republic of Vietnam is a member have different provisions on the same issue, the provisions of the international treaties shall apply, except for the Constitution.”

Source: mt.gov.vn

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