NAGOYA UNIVERSITY OF JAPAN GRADUATE SHOOIL OF LAW MASTER’S TITESIS IMPROVING THE MECHANISM FOR SETTLEMENT OF ADMINISTRATIVE DISPUTES: AN IMPORTANT CONTRIBUTION TO PUBLIC ADMINISTRATION REFORM IN VIETNAM TODAYTHƯƯIÊN. | TRƯỜNG ĐẠI HỌC LUAT HA NỘI PHÒNG ĐỌC Thesis presented as partial fulfilliment of requirements for a Master’s Degree SUBMITTED BY TRƯỜNG” OH LUAT HANOI PHAM HONG QUANG THƯYIỆN BIÁ0 VIEN L SỐ OK (Có — | Special Program for International Student— M2” Student’s ID: 230003575 Acadeniuc Advisor: Prof. AIK YO MASANORI Sub Advisors: Prot. KAMINO KENJE- Prof.
ICHHIHASHI KATSUYA NAGOYA, JUNE 2002 ABSTRACT The foundation of the Administrative Division Courts in Vietnam in Juiy' 1996 has ifproved the mechanism for Settlement of Administrative Disputes (SAD)!, social dienocratization, and the building of “Nha nuoc Phap quyen”? addressed by Public A\cministration Reform (PAR)Ì commenced from the beginning of 1990s. However, the em-ountercd problems of the existing mechanism for SAD featured by the appearance of Avcministrative Division Courts in the past six years has once again triggered the legal debates om looking for the best resolution for its existence. This result has surely influenced the stuccess or faiure of the overall PAR process. Such important implications, the chosen topic alims to contribute a discussion to this hot-issue im Vietnam.
[hs paper ts fscuscd bn the low-effect of the existing Administrative Division Court model, (ica supplics an overall view of the whole process for improving the mechanism for SAD and the PAR in Vietnam, while simultaneously confirming the mutual relation between them. Druwing the study, the following issucs were addressed: Firstly, this paper confirms the important contribution for the improvement of the mcechanism for SAD toward the overall process of PAR in Vietnam, since the former aimed to cay oul the main contents as well as the objective addressed by the latter lt proved the " Ttereimaler referred to as SAD Ths term means “Recht staat or Leeal State” that ts common use in the Party's Resolutions and State's law doccuments aller performing the “DoiMoac” palicy in L986 +1 * Hlremafter relerred to as PAR indispensable necd Tor the establishment of the Administrative Division Court that re-marked the development of the “judicial review of administrative actions” previously unknown in Victnam, and also made the Vietnamese legal system catch up with the development of legal science in the rest of the world. Secondly, this paper focuses on the encountered problems of the existing mechanism that resulted in the development of legal debates among Vietnamese lawyers concerning the maintenance of the existing model or the change it to a new model known as “an independent administrative court” like the model of Consei d'/tal in France, This paper thus presents this discussion and affirms that the improvement of the mechanism for SAD is a “continuous learning process’, arming to meet the overall requirement of the PAR. Finally, based on the situation of SAD in Vietnam, the latest amended Constitution of 1992 as well as the development of the international co-operation in the present content, this paper supports the maintenance of the existing model and proposes some directions for its betler operation in the future.
Some experiences on SAD in Japan were also added to contribute such an opinion. Do cố) 1996#2 7 FC ART AICASUY CTF BOBCAT A LAE EI ko 7C, FTIR PMR (SAD) ME MOAH=zAL, (ASMREIERO 1990 (KO) MCBSAVIC ie (PAR) (Zh CEREAL TUS “Nha nuoc Pháp quyen’ OER EL, Lal, 3š 6 HE RCASU YC FT Ee ANAT OD HZ ENS CHF KSI 24L SAD OL MORE FO 40 =A DLT SLD, FEO, AD = ALO ERO TY [Cte by FLU WERER VD 7OTE AY heim25) È HOOLTE, LOD aR RROD AE Am eh, TTCOOEB KOKI, MPAA IC MESES ¿1 010-4OCR, MOAT Eh, 032419 1 2t Rel cds bOI cI SH 1028 < BART 4# AIGEL TWD, LOM XE, UE CFO FT RCI TIEOD. 2 YEO UGS (CME Bed CL FIC, F27124 SAD DPL MOY AD) = Ady BO PAR 09101123188 PASTPZ He 7. TAS EA LED JOE A PER AMEE44103745, 1260314 CISUYC, LA POON MIA UK Sd CUD, qm, COO MI aT.
ARP IC ASIS S SAD OLE MO AY = 260304 jÊ7Ý PAR 018 tị EAE *ƑFU C eT ARP BS 2) te EEA AMER PH SAD (NK) AW et ALVA PAR todo TH We AAT TWH FE IAS EONS ANA SEPP PO EA NEL TW DAW, Cho%, ELC CAVE SPL FSU VC TUT ABA FT IAC X50) GE ARS xƑL# H SU ROS bP 2408112 fit Ee LR OD PC 33L} DR 20) ABEL IBY OA ME DEMOELLE ui PACS ACT ORAL DS As 8Ị KR Cd oT LAE L TE, TNS, LOR XE, EFF HF ILMTD OM, MUL, FI AOD RE RFT (Conseil d`EtaD EF LO LIAR MELE TT BRAN PT J 2L C#0ÈsätS 3L v MEF IL AOR {TID LIPO LEAR O EAD IO FIRE HI COLE, MEFOAD=RALO RAIL TV ZIRE ME tly CCW,COM, LO di SEL, OD ie in 2H TPL WON, SAD 02? YD 427) ~ 22401013” RF TS Ze EE M1” Edo), PAR 0) PR {E0)385R( CIE. LING See “SLM TS, NERA. API 21 E352 SAD OAK. T10) 1992 SAREE, A Ô TMfE0) CIS ES tS Z HIẾN bth 710) 3š lệ (Ẻ EDUC, LOM SCL, ELE OD-E FLO TF EF SOBEL EOC ANCA DH LOL MONO MOUS OA OTT TERN, HE.
BOOZE Mr tillo MIS ASIII SAD LMP áv*<~320)## 23/122 Cod ÚV V5, IMPROVING THE MECHANISM FOR SETTLEMENT OF ADMINISTRATIVE DISPUTES: AN IMPORTANT CONTRIBUTION TO PUBLIC ADMINISTRATION REFORM IN VIETNAM TODAY TABLE OF CONTENTS Page | INTRODUCTION CHAPTER 1; PUBLIC ADMINISTRATION REFORM (PAR) IN VIETNAM AND 8 ITS RELATION TO THE OVERALL REQUIREMENT FOR THE IMPROVEMENT OF THE MECHANISM FOR SE ETLEMENT OF ADMINISTRATIVE DISPUTES (SAD) I, Overview 8 |. Overview of the PAR process in Vietnam 8 2. Overview of the mechanism for SAD in Vietnam 12 HH, Why the improvement of the mechanism for SAD is an important 17 contribution to PAR in Vietnam? | PAR seen as a spring-board for the improvement of the mechanism for SAD 17 2 Improvement of the mechanism for SAD considered as an effective measure to — 20 carry out the main contents of PAR 3. Improvement of the mechanism for SAD aims to carry oul the main objectives of 23 PAR to build up successfully “Nha nuoc Pháp quycn (egal State) in Vietnam 4.
Improvement of the mechanism for SAD also auns to catch up with the — 27 development of legal science of the world and region in the field of SAD 5. Improvement of the mechanism for SAD affirms the birth and development of the 32 judicial review of administrative action in Vietnam T11. Conclusion 37 CHAPTER TE: PROCESS OF THE IMPROVEMENT OF TILE MECHANISM 38 FOR SADIN VIETNAM - INSTORY AND OUTLINE OF VIETNAM ‘S EXPERIENCE IN SAD - I. SAD prior to July 1996 and the need for the establishment of the 38 Administrative Division Court |.
Legal basis applied to SAD 38 2. The main characteristic of the previous mechanism for SAD 39 ae) The shortcomings of mechanism for SAD prior to July 1996 41 3.1 Lack of an independent judicial organ to review impartially and objectively the 41 complained administrative decisions or actions 3.2 The defect in the procedures of SAD and tmplementation of review decisions 33 Imperfection of legal regulations applied to SAD 3.4 The linited legal capacity of state officials and the malpractices in SAD 3.5 The limitation of legal knowledge among people and the non-support toward stale officials 3.6 Situation of SAD in Vietnam prior to July 1996 and the remarkable problems 4. The establishment of the Administrative Division Courts (July, 1“ 1996) 4.1 The indispensable need for the establishment of Administrative Division Courts 4.2~~ Process of setting up the model as Administrative Division within people's court 131 The model of administrative court as an independent system formed by National Assembly, separating tt from the administrative organs, in parallel with the people’s court system 4.2 The model of administrative court as an independent system formed and subordinated to Prime Minister, but separated from Executive organs 4.3 The choice of the model of Administrative Division within People’s Court 66 system (Administrative Divisions Court) and its formation since July, 1 1996 4. SAD in Vietnam since the creation of the Administrative Division Courts 69 and the need for improvement of the existing mechanism for SAD 1.
SAD by judicial review tin the Administrative Division Courts under the 69 Ordinance on Settlement of Administrative Cases (OSAC) from July, 1 1996 and its amendment enacted on December 25" 1998 to date 1.1 What ts an administrative case? 69 1.2 Requirement for inating administrative cases 70 [.3 The objects of Settlement of Administrative Cases (SAC) 73 [.4 Administrative Division Courts competence on SAC [.Š Some remarkable features in the proceedings of SAC 77 1.6 Judgments and execution of judgments of administrative cases 79 2. SAD by administrative review conducted by the system of the administrative 80 agencies under the OSCCD of 1991 and the LOCD of 1998 2.1 The contradiction with the existing OSAC of the OSCDC of 1991 resulted in the 81 birth of the LOCD int 2.2 SAL by the competent administrative agencies under the LOCD 82 ho 3 Conclusion 84 — - Problems encountered in the existing mechanism for SAD and the discussion to look for a better model 3.1 Situation in SAD since the establishment of Administrative. Diviston Courts in 85 Vietnam, = 2̀ Problems encountered in the existing mechanism for SAD 94 Sơ) t2 | The problems remarned in the definition of competence tn SAC 94 3.2 SAD in the pre-litigation period by administrative agencies 99 wn 2 3 Nonfeasance of the competent administrative agencies and non-effective 103 enforcement of court *s remedies 3.4 Some problems encountered in SAC proceedings at Administrative Division 106 Courts 42.5 The imperfect and contradiction in legal regulations involved in SAD 110 3.6 Quality of judges, people’s assessors and procurators in participation of SAC 113 3.3 The discussion to look fora better model for SAD in the present time 116 3.1 A criticism of the existing model for SAD [l6 3.2 Some discussions to look for a better model for SAD 117 3.4 Conclusion [21 CHAPTER Th: THE DIRECTION FOR IMPROVING THE EXISTING 123 MECITIANISM FOR SAD AND ITS IMPLICATION TOWARD THE OVERALL PROCESS OF PAR 1 The direction for improving the existing mechanism for SAD |. The improvement of law document system 2.
The improvement ofthe existing model for SAD 3. The improvement of public service system 4. The improvement of administrative review of administrative action and the responsibility of administrative agencies 5. The role of administrative judges 138 6.
The role of procurators and pcople”s assessors 140 7. The role of political social organizations and all individuals 141 8. The development of international co-operation and foreign legal aid 143 I. Learning experiences of SAD in Japan |.
Some experiences of SAD m Japan. HT, Implication of improving the mechanism for SAD toward the overall process of PAR 1 Theoretical aspect 160 2 Practical aspect 161 CONCLUSION 163 BIBLIOGRAPHY APPENDIN t APPENDIX 2 INTRODUCTION I. TOPIC AND RATIONALE Public Admimrstration Reform (hereinafter referred to as PAR) is a “common phenomenon” in modern societies and been conducted by almost all governments throughout the world, aiming to catch up the changes of economic, political, social circumstances at different levels of each country, Vietnam, since the implementation of “Doi Moi” policy in 1986, along with the vigorous economic reform, has taken in a parallel range of reforms such as the legislative, judictary and public administration reforms. The 8” Plenum of the 7" Party Congress’ constituted a turning point.
in building and improving PAR m Vietnam. Though public administration has been reformed to a certain extent, it continues to face with many obstacles to its progress and failed to mect the expectation of the leadership of the country as well as the people.