RESOLUTION Guiding the implementation of a number of provisions of the Ordinance on procedures for settlement of administrative cases, which was amended and supplemented under the ordinances of December 25, 1998, and April 5, 2006, amending and supplementing a number of articles of the Ordinance on procedures for settlement of administrative cases THE JUDGES' COUNCIL OF THE SUPREME PEOPLE'S COURT Pursuant to the Law on Organization of the People's Courts; In order to properly and uniformly implement the provisions of the Ordinance on Procedures for Settlement of Administrative Cases, which was amended and supplemented under the Ordinances of December 25, 1998, and April 5, 2006, amending and supplementing a number of articles of the Ordinance on Procedures for Settlement of Administrative Cases (hereinafter referred to as the Ordinance for short); After getting the consent of the Chairman of the Supreme People's Procuracy and the Justice Minister, RESOLVES: 1. Regarding the provisions of Article 2 of the Ordinance 1.1. The provision on "persons competent to settle first-time complaints" "Persons competent to settle first-time complaints" provided for in Article 2 of the Ordinance mean state administrative agencies, competent persons in state administrative agencies or heads of agencies or organizations in one of the following cases: a/ Who have issued one of administrative decisions or disciplinary decisions on forced job severance, or committed one of administrative acts defined in Article 11 of the Ordinance; b/ Who directly manage cadres or officials who have issued one of administrative decisions or committed one of administrative acts defined in Article 11 of the Ordinance. 1.2. The provisions of Point c, Clause 1, Article 2 of the Ordinance a/ Upon receipt of lawsuits against administrative decisions or administrative acts, for which the competence to settle first-time complaints belongs to ministers or heads of ministerial-level agencies, the courts shall base themselves on Article 11 of the Ordinance to check whether such lawsuits fall under their handling jurisdiction. In cases where such lawsuits fall under their handling jurisdiction, the courts shall proceed to open files for the cases according to common procedures if the lawsuit initiators had already lodged complaints with ministers or heads of ministerial-level agencies and the time limit for settlement of first-time complaints had expired while the complaints have not been settled or have been settled under decisions on settlement of first-time complaints. b/ Upon receipt of lawsuits against administrative decisions or administrative acts, for which the settlement of first-time complaints falls under the competence of presidents of provincial-level People's Committees, the courts must base on Articles 25 and 39 of the Law on Complaints and Denunciations to consider them, specifically as follows: b.1/ For administrative decisions or administrative acts with contents falling under the state management rights of ministries, ministerial-level agencies or government-attached agencies, the courts shall proceed to open files for the cases according to common procedures if the lawsuit initiators had lodged their first-time complaints to presidents of provincial-level People's Committees but past the settlement time limit provided for by the law on complaints and denunciations their complaints have not been settled or have been settled under decisions on settlement of first-time complaints and the complaints were not further lodged to persons competent to settle second-time complaints; b.2/ For administrative decisions or administrative acts with contents not falling under the state management rights of ministries, ministerial-level agencies or government-attached agencies, the courts shall proceed to open files for the cases according to the common procedures if the lawsuit initiators had lodged their complaints to presidents of provincial-level People's Committees but past the settlement time limit prescribed by the law on complaints and denunciations their complaints have not been settled or have been settled under decisions on settlement of first-time complaints. 1.3. Application of Point d, Clause 1, Article 2 of the Ordinance Upon receipt of lawsuits against administrative decisions or administrative acts, for which the second-time complaints have been settled, it is necessary to make the distinction as follows: a/ For cases which had arisen prior to 00:00 hrs of June 1, 2006, and the complainants had lodged their complaints to persons competent to settle second-time complaints and the time limit for settlement of second-time complaints under the provisions of law on complaints and denunciations had expired before 00:00 hrs of June 1, 2006, while the complaints had not been settled (except for cases guided in Item 13.1, Section 13 of this Resolution) or had been settled before 00:00 hrs of June 1, 2006, but the complainants disagreed with the settlement, if they initiate administrative cases, the courts shall base on Point a, Clause 1, Article 31 of the Ordinance to return the lawsuit petitions to the initiators. b/ For cases which had arisen before 00:00 hrs of June 1, 2006, and the complainants had lodged their complaints to persons competent to settle second-time complaints and the time limit for settlement of second-time complaints as prescribed by the law on complaints and denunciations had expired after 00:00 hrs of June 1, 2006, but the complaints had not been settled or have been settled after 00:00 hrs of June 1, 2006, but the complainants disagreed with the settlement, if they initiate administrative cases, the courts shall base on the provisions of the Ordinance to proceed to open files for the cases according to common procedures. 1.4. Handling of lawsuits initiated for administrative cases Immediately after receipt of lawsuits for administrative cases, the court presidents or deputy-court presidents authorized by the former, the presiding judges or deputy presiding judges authorized by the former shall assign a judge to examine the lawsuits. Within five working days after the receipt of lawsuits, the judges shall examine the cases to see which type of lawsuits they belong to under the provisions of Article 11 of the Ordinance and compare them with the conditions for initiating administrative cases provided for in Article 2 of the Ordinance in order to: a/ Proceed to open files for the cases according to common procedures, if the conditions for initiating administrative cases are fully met; b/ Return the lawsuits to the initiators and clearly state the reasons therefor, if the conditions for initiating the administrative cases are not fully met. Example 1: Mr. Nguyen Van A takes action against a decision on sanctioning him for an administrative violation, issued by the president of the People's Committee of district S, province D, and Mr. A had complained with the president of the People's Committee of district S, but the time limit for settlement of first-time complaints has not yet expired and the president of the People's Committee of district S has not yet issued a decision on settlement of the complaint, the court shall base on Point a, Clause 1, Article 2 and Point c, Clause 1, Article 31 of the Ordinance to return the lawsuit petition to Mr. A. Example 2: Mr. Tran B is a judgment enforcer of district D, province Q, who files his statement for action against the disciplinary decision on forced job severance against him by the director of the Justice Service of province Q, and Mr. B had already lodged his complaint to the director of the Justice Service of province Q, but the latter has not yet issued a decision to settle the complaint or has issued the decision but Mr. B disagreed and further complained with the Justice Minister who has issued a decision on settlement of the complaint, the court shall base on Clause 4, Article 2 and Point c, Clause 1, Article 31 of the Ordinance to return the lawsuit petition to Mr. B. 2. Administrative decisions subject of lawsuits to request the courts to settle administrative cases Administrative decisions being subject of lawsuits to request the courts to settle administrative cases must be first-time administrative decisions. In addition to administrative decisions issued for the first time by state administrative agencies or competent persons in state administrative agencies while handling or settling specific matters under their competence, the following administrative decisions shall also be regarded as first-time one: a/ After issuing administrative decisions which are not yet complained about, the state administrative agencies or the competent persons in state administrative agencies that have issued such administrative decisions issue other decisions to replace the previous administrative decisions, the newly issued decisions shall be first-time administrative decisions; b/ After issuing administrative decisions which have not yet been complained about, the state administrative agencies or the competent persons in state administrative agencies that have issued such decisions issue other decisions amending and supplementing a number of articles of the previous administrative decisions, the unamended or uncancelled parts of the previous administrative decisions and the decisions amending and supplementing a number of articles of the previous administrative decisions shall all be first-time administrative decisions; It should be noted that for two above cases a and b, if the later decisions are issued after the state administrative agencies or the competent persons in state administrative agencies have received complaints and such decisions are the complaint settlement outcomes, the later decisions shall be first-time complaint settlement decisions, not first-time administrative decisions; c/ After the people's courts competent to settle administrative cases issue decisions cancelling parts or whole of the complained administrative decisions; assign state administrative agencies or competent persons in state administrative agencies to re-settle the cases with regard to parts or whole of the cancelled administrative decisions and the re-settlement results are new decisions issued by the state administrative agencies or the competent persons in state administrative agencies, such new decisions shall be first-time administrative decisions; d/ After the persons competent to settle second-time complaints issue complaint settlement decisions and the administrative-decision issuers have issued administrative decisions amending parts or whole of such administrative decisions, the decisions amending parts or whole of the previous administrative decisions and unamended parts of the previous administrative decisions shall all be first-time administrative decisions. Example: The president of the People's Committee of Ward T, district H, city H issues a decision to administratively sanction Mr. with a fine of VND 400,000 and the additional sanctioning form of forced restoration of the initial state altered due to the administrative violation. Mr. A complains about this decision and the president of the People's Committee of Ward T has issued a complaint settlement decision, concluding to uphold his/her decision. After Mr. A complains with the president of the People's Committee of district H, city H, the president of the People's Committee of district H issues a complaint settlement decision, concluding that the complained contents are partly true to the decision concerning the additional sanctioning form, and requests the president of the People's Committee of ward H to amend such decision. The president of the People's Committee of ward T issues a new administrative violation-sanctioning decision, changing the additional sanctioning form of forced restoration of the initial state altered due to the administrative violation into the coercive application of measures to redress the environmental pollution caused by the administrative violation. In this case, the previous administrative violation- sanctioning decision with the principal sanctioning form of VND 400,000-fine and the later administrative violation-sanctioning decision with the additional sanctioning form of coercive application of measures to redress the environmental pollution caused by the administrative violation of the president of the People's Committee of ward T shall all be first-time administrative decisions. 3. Administrative acts subject of lawsuits to request the courts to settle administrative cases Under the provisions of Clause 2, Article 4 and Article 11 of the Ordinance, the administrative acts subject of lawsuits to request the courts to settle administrative cases shall include acts committed by state administrative agencies or competent persons in state administrative agencies of performing or not performing the tasks or official duties in the matters or domains specified in Clauses from 3 thru 17, Article 11 of the Ordinance or in other matters or domains prescribed by law. 4. Identification of respondents in administrative cases Under the provisions of Clause 6, Article 4 of the Ordinance, respondents are individuals, agencies and organizations that have issued the complained administrative decisions, committed the complained administrative acts or issued disciplinary decisions on forced job severance; hence, in order to correctly identify whether the respondents are individuals, agencies or organizations, it is a must to base on the provisions of law on competence to settle such cases. Example: There are two administrative decisions which are complained about and signed by district- level People's Committee presidents (one decision on sanctioning of an administrative violation and one decision on recovery of land of a household), for which the court is requested to settle administrative cases. Based on the legal provisions on competence to settle these cases, the respondent in the administrative case complaining about the administrative violation-sanctioning decision shall be the district-level People's Committee president personally (Article 29 of the Ordinance on Handling of Administrative Violations) while the respondent in the administrative case complaining about the decision on recovery of land of a household shall be the district-level People's Committee (Articles 37 and 38 of the Land Law). It should be noted that the competent persons in state administrative agencies, defined in Article 4 of the Ordinance, shall be those having specific positions or titles and by law only such persons are competent to issue administrative decisions or perform administrative acts. Even though an administrative decision is signed or an administrative act is performed by a specific person (Mr. Nguyen Van A, Mrs. Tran Thi X), such administrative decision is issued or such administrative act is performed by such person in the capacity of a competent position or title (example: the president of the district People's Committee, chief of the ward police,'); therefore, such administrative decision or administrative act can only be labelled as that of the district People's Committee president or ward police chief, not of a specific person (Mr. Nguyen Van A, Mrs. Tran Thi X). Therefore, in case the persons who had issued administrative decisions or performed administrative acts have been transferred to other places of work or have retired and such administrative decisions or acts are complained about, the persons newly elected, nominated or appointed to such positions or titles shall inherit the rights and obligations, and become the very respondents. 5. Settlement of claims for damages in administrative cases Under the provisions of Article 3 (paragraph 1) of the Ordinance, the respondents in administrative cases can simultaneously claim compensations for damage. The damage in this case is the actual damage caused by the administrative decision or disciplinary decision on forced job severance or by the administrative act. If the administrative case initiators claim compensations for damage, they are obliged to supply evidences. In case of necessity, the courts may gather additional evidences to ensure the accurate settlement of the cases. The gathering of evidences in this case shall comply with the provisions of the Civil Procedure Code. Where the administrative case initiators cannot supply evidences yet, the claim for damages shall be separated for later settlement in other administrative cases according to common procedures, when so requested by the involved parties. Example: A person initiates a lawsuit to request the court to cancel a decision on confiscation of his/her means used for commission of an administrative violation and at the same time to claim for damages as some parts of the means were lost or damaged or his/her actual incomes were lost due to the seizure of his/her means. If the court deems that the decision on confiscation of the means used for commission of the administrative violation is illegal and deems that the lawsuit initiator's claim for damages is well grounded (with full evidences supplied by the complainant, with witnesses,'), the court shall decide to cancel such administrative decision and at the same time decide on the compensation for damage; if the lawsuit initiator cannot yet prove which parts of the means are lost or damaged and which actual income amounts were lost, the court shall only decide to cancel such administrative decision and leave the claim for damages for settlement in another civil case according to common procedures, when so requested by the involved parties. 6. Settlement of cases where respondents amend or cancel administrative decisions or disciplinary decisions on forced job severance which are complained about Under the provisions of Article 3 (paragraph 4) and Article 20 of the Ordinance, in the course of settlement of administrative cases, respondents may amend or cancel the complained administrative decisions or disciplinary decisions on forced job severance; therefore, in the course of settlement of administrative cases, if respondents obtain decisions on amending or cancelling the complained administrative decisions or disciplinary decisions on forced job severance, the courts should notify such to the lawsuit initiators and should distinguish: a/ If the lawsuit initiators agree with such amending or cancelling decisions and withdraw their lawsuits, the courts shall base on Point b, Clause 1, Article 41 of the Ordinance to issue decision to stop the settlement of the cases; b/ If the lawsuit initiators disagree with such amending or cancelling decisions and decline to withdraw their lawsuits, the courts shall examine the legality of the complained decisions and the decisions to amend or cancel the complained decisions in order to make lawful decisions on a case-by-case basis. 7. The provisions of Article 11 of the Ordinance 7.1. On the concept of "works, other solid architectural objects" defined in Clause 5, Article 11 of the Ordinance a/ "Work" must be steady and sustainable and the construction of which requires meticulousness, science, techniques or art. For example: A monument, a system in service of aquaculture' b/ "Other solid architectural objects" means objects, besides dwelling houses, works, which are steadily and sustainably built and have long-term use value. For example: water wells, garages, churches, fence walls attached to dwelling houses, workshops, storehouses' c/ Regardless of the value of dwelling houses, works or other solid architectural objects, only if there are complaints about administrative decisions, administrative acts in the application of measures of forced dismantlement, shall the courts open files for the cases according to common procedures and only need to identify whether they are truly dwelling houses, works or other solid architectural

Resolution 04/2006/NQ-HĐTP