MINISTRY OF JUSTICE MINISTRY OF EDUCTION AND TRAINING HANOI LAW UNIVERSITY NGUYỄN HÀ KHÁNH LINH 463116 BACHELOR’S THESIS ENHANCE DUE PROCESS IN SANCTIONING ADMINISTRATIVE VIOLATION – EXPERIENCE IN SELECTED COUNTRIES AND RECOMMENDATIONS FOR VIETNAM Hanoi – 2025 MINISTRY OF JUSTICE MINISTRY OF EDUCTION AND TRAINING HANOI LAW UNIVERSITY NGUYỄN HÀ KHÁNH LINH 463116 BACHELOR’S THESIS ENHANCE DUE PROCESS IN SANCTIONING ADMINISTRATIVE VIOLATION – EXPERIENCE IN SELECTED COUNTRIES AND RECOMMENDATIONS FOR VIETNAM Specialisation: Constitutional Law SUPERVISOR ASSOCIATE PROFESSOR TO VAN HOA Hanoi – 2025 i DECLARATION I hereby declare that this thesis is my individual work. All conclusions and statistics included in the thesis are genuine and reliable. Confirmation of the supervisor Author of the thesis ii ABBREVIATION BAC Blood Alcohol Concentration DUI Driving Under Influence ECHR European Court of Human Rights ECJ European Court of Justice ICCPR International Covenant on Civil and Political Rights UK United Kingdom UNDP United Nation Development Programme US United States iii TABLE OF CONTENTS Sub cover page .iii Table of contents. Necessity of the research.
Scientific and practical significance of the topic. Purpose of the research. Objectives and scope of the research. 7 Chapter 1: OVERVIEW OF DUE PROCESS AND ITS ROLE IN SANCTIONING ADMINISTRATIVE VIOLATION.
Concept of due process in constitutional law. The theory of due process. Due process in constitutional law perspective. Overview of sanctioning administrative violations.
A brief overview of sanctioning administrative violations. Principles for establishing administrative sanction. The role of due process in sanctioning administrative violations. 18 Chapter 2: DUE PROCESS IN SANCTIONING ADMINISTRATIVE VIOLATIONS FROM INTERNATIONAL PERSPECTIVE.
Due process in sanctioning administrative violations in the United Kingdom. History of due process in sanctioning administrative violations in the United Kingdom. Legal regulations on due process in sanctioning administrative violations in the United Kingdom. Practice of due process in sanctioning administrative violations in the United Kingdom.
Due process in sanctioning administrative violations in the United States 27 2. History of due process in sanctioning administrative violations in the United States. Legal regulations on due process in sanctioning administrative violations in the United State. Practice of due process in sanctioning administrative violations in the United State.
Due process in sanctioning administrative violations in Italy. History of due process in sanctioning administrative violations in Italy. Legal regulations on due process in sanctioning administrative violations in Italy. Practice of due process in sanctioning administrative violations in Italy.
35 Chapter 3: DUE PROCESS ON VIETNAM LAW OF SANCTIONING ADMINISTRATIVE VIOLATION: CHALLENGE AND PROSPECT. Legal grounds of due process in sanctioning administrative violations in Vietnam. Due process in Vietnam’s constitutional law. Due process in Vietnam’s sationing administrative violation law.
Situation of due process in Vietnam’s sanctioning administrative violations. General issues of sanctioning administrative violations in Vietnam .2 Shortcomings of due process in sanctioning administrative violations in Vietnam. Some suggestions for enhancing due process in sanctioning administrative violations in Vietnam. Suggestion on judicialization of administrative violation sanctions.
Suggestion on the Law of sanctioning administrative violation. Suggestion on enhancing the transparency of sanctioning administrative violations procedures. Necessity of the research In many countries, including Vietnam, administrative offences are often disguised as regulatory or minor crimes to bypass criminal trial rights, leading to the disproportionate limitation of due process in these cases.1 Vietnam’s administrative law is expansive, encompassing a wide range of legal issues largely influenced by the country’s legal culture. As a result, administrative sanctions have become a powerful tool for the government to manage society effectively.
However, the current sanctioning framework exhibits significant flaws that facilitate abuse of power by administrative authorities, thereby infringing upon the legitimate rights and interests of those who are wrongly punished. These defects are particularly evident in the “closed sanctioning model” or “loop sanctioning”, which excludes the judiciary from the sanctioning process, raising substantial concerns about due process and fairness. 2 Additionally, in Vietnam, there is a systematic misclassification of criminal violations, such as domestic violence, public order and driving under the influence, as administrative violations, leading to judiciary punishment that is disproportionate to crime severity and, therefore, would not adhere to international human rights law. For example, in the case of domestic violence, violators are merely fined and not imprisoned.
Because family assets are shared, this fine represents collective family punishment that fails to protect victims.3 Under Vietnam’s administrative sanctioning system, law enforcement authorities, such as the police, are solely responsible for penalising administrative violations, regardless of their severity. This process lacks the participation of courts, thereby excluding an essential layer of oversight that could ensure fairness and transparency. Without due process, the fairness of penalty decisions and the effectiveness of mechanisms to protect the rights of those accused are called into question. Consequently, this closed sanction model perpetuates a system where 1 Bui T.
Due-Process-Evading Justice: The Case of Vietnam, International Journal of Law, Crime and Justice, 63, 100426. Problematising the Due Process in Sanctioning Administrative Violations in Vietnam: Practices and Implications, Proceedings of the 10th Asian Constitutional Law Forum 10th: Constitutional Change in Asia in the 21st Century. Diversifying Forms of Administrative Violation Sanctions – International Experience and Lessons for Vietnam (Student research project, Hanoi Law University), 64-65. 1 violators are unable to challenge their penalties effectively, and enforcers hold disproportionate power, increasing the risk of abuse.4 To address these issues, Vietnam must undertake significant reforms to its administrative sanctioning framework.
First and foremost, the judiciary must play a more active role in the process to ensure fairness, transparency, and accountability. Establishing a transparent appeals mechanism would allow individuals to challenge administrative penalties and safeguard their rights effectively.5 Additionally, clearer legal guidelines should be developed to govern the enforcement of administrative sanctions, thereby reducing the potential for abuse of power and ensuring that penalties are applied consistently and proportionately. My hypothesis is that the administrative sanctioning process in Vietnam lacks fairness and transparency, thereby violating human rights. In practice, administrative sanctioning activities in Vietnam currently pose significant risks of abuse of power by authorities, threatening and infringing upon the legitimate rights and interests of those being sanctioned.
International experience has demonstrated that “judicialization” plays a crucial role in limiting the abuse of power by administrative bodies, safeguarding the legitimate rights and interests of sanctioned individuals, and paving the way for the introduction of alternative forms of administrative sanctions in Vietnam, such as administrative detention and community service penalties. To ensure judicialization is effective, “due process” is a fundamental requirement, which could be reinforced through this research. Importantly, administrative sanctions are critical tools for governments to enforce regulations and maintain public order. Unlike criminal penalties, they offer a more efficient means of addressing violations but must adhere to principles of fairness to protect individual rights.
This research explores the core principles of administrative fairness, the challenges in their implementation, and perspectives from various jurisdictions: the UK, US, Italy, and Vietnam. Judicialization of administrative violation sanctions – Recommendations for Vietnam from renovation to the present. Proceedings of the Young Scientists’ Conference: The Legal Integration Process of Vietnam from Renovation to the Present (p. Vietnam National University Press.
Literature review The principle of due process in administrative sanctions balances state authority with individual rights protection. Classic administrative law frameworks emphasize three pillars: procedural fairness, transparency, and judicial oversight. This thesis builds upon prior research concerning due process, with a particular emphasis on its application in sanctioning administrative violations in Vietnam and comparative legal systems. By examining these perspectives, it aims to provide a deeper understanding of the challenges and gaps in Vietnam’s legal framework.
The concept of due process has been extensively explored in legal scholarship worldwide. Among the earliest notable works, Issac Franklin Russell 1905 article: “Due Process of Law”, published in The Yale Law Journal, and Richard Thomson’s 1829 historical analysis “An Historical Essay on the Magna Charta of King John”, provide foundational insights into the evolution of due process. The historical development of due process is deeply rooted in the Magna Carta of the United Kingdom, a legacy reflected in numerous scholarly works, including Harry E. Groves’s “Due Process of Law: A Comparative Study” (1961), George B.
Adams’s “The Origin of the English Constitution” (I9I2); W. McKechnie’s “Magna Carta: A Commentary on the Great Charter of King John” (1914) and J. Holt’s “Magna Carta” (1965). In the US, research on due process has further refined its theoretical and practical applications.
Scholars such as A. Dan Tarlock in his 1980 work, Administrative Law: Procedural Due Process and Other Issues, and H. Willis in Due Process of Law under the United States Constitution (University of Pennsylvania Law Review and American Law Register, 1926) have examined the procedural guarantees embedded in U. These studies emphasize the balancing framework increasingly applied in administrative sanctioning systems globally evaluating the private interests at stake, the risk of erroneous deprivation, and governmental efficiency - a model that continues to shape contemporary due process jurisprudence.
Research on sanctioning administrative violations in Vietnam is extensive; however, most studies focus on specific sectors rather than providing a 3 comprehensive overview. Notably, Vu Thu’s doctoral thesis, Administrative Sanctions – Theory and Practice (1996), examines administrative sanctions from a theoretical perspective, discussing the necessity and effectiveness of various sanction forms prior to the enactment of the 2012 Law on Handling Administrative Violations. This work also highlights the removal of certain sanctions, such as administrative detention and community service penalties for public order violations. Similarly, Nguyen Trong Binh’s master’s thesis (2000), Improving Legal Provisions on Forms of Administrative Violation Sanctions, addresses the need for and methods to apply different forms of administrative sanctions effectively.
More recent contributions by Nguyen Nhat Khanh provide in-depth analyses of specific sanction forms, including “The form of monetary penalty in administrative sanctioning law” (State and Law, 2020) and “Improving the law on supplementary sanctions in administrative sanctions” (Legislative Studies, 2019), further enriching the discourse on the structure and application of administrative sanctions in Vietnam. Recent research on the principle of due process in sanctioning administrative violations in Vietnam has expanded both in scope and depth. Assistant Professor Bui Tien Dat has contributed significantly to this area through a series of works, including “The Expansion and Fragmentation of Minor Offense Justice: A Convergence Between the Common Law and the Civil Law” (New Criminal Law Review, 2016), “Procedural proportionality: the remedy for an uncertain jurisprudence of minor offence justice” (Criminal Law and Philosophy, 2018), and “Due-process-evading justice: The case of Vietnam” (International Journal of Law, 2020). His 2021 monograph, “Principles of due process, fair and reasonable law, and the role of protecting human rights”, published by the National Political Publishing House Truth, provides a comprehensive analysis of due process and the protection of human rights in administrative sanctioning.
The importance of diversifying forms of administrative sanctions is highlighted in Nguyen Ha Khanh Linh’s research, such as “Diversifying Forms of Administrative Violation Sanctions – International Experience and Lessons for Vietnam” (Student Research Project at the University Level - Hanoi Law University, 2022). Additionally, her works “Judicialization of Administrative Violation Sanctions - 4 Recommendations for Vietnam from Renovation to the Present” (Proceedings of the Young Scientists’ Conference: The Legal Integration Process of Vietnam from Renovation to the Present, 2023) and “Problematizing the Due Process in Sanctioning Administrative Violations in Vietnam: Practices and Implications” (Proceedings of the 10th Asian Constitutional Law Forum: Constitutional Change in Asia in the 21st Century, 2024) further explore the evolving landscape of administrative sanctions, judicialization, and procedural safeguards in Vietnam. Scientific and practical significance of the topic The research contributes to the theoretical and practical understanding of due process, focusing specifically on its role in Vietnam’s administrative violation framework. It addresses the critical necessity to reform Vietnam's administrative law to enhance fairness and transparency in line with international standards.
