MINISTRY OF EDUCATION AND TRAINING MINISTRY OF JUSTICE

HANOI LAW UNIVERSITY
NGUYEN MANH HUNG DELIMITATION OF THE JURISDICTION TO DEAL WITH
ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION OF
COURTS TO DEAL WITH ADMINISTRATIVE CASES IN
VIETNAM
Specialized Major: Theory and history of state and law
Code: 62.38.01.01
SUMMARY OF DISSERTATION
HANOI - 2013

Since 01/07/1996, administrative dispute was not only solved by
administrative procedure but also by administrative court procedure
because Vietnam has wanted to ensure that the administrative dispute will
be solved more effectively, in order to protect fully the rights and legitimate
interests of citizens violated by individual/organization when exercising
executive power. However, these two channels were only conducted and
completed seperately. Therefore, legal regulations on delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam still reveal many issues.
The unclear delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
has caused many challenges that are common in reality such as: refusing or
shifting responsiblity for dealing with administrative dispute; imbalance in
the number of cases and in the quality handled by two channels.
These problems do not meet requirements of the principle: State power
is unity with reasonable delegation of power to, and co-ordinate and control
tightly among State bodies in exercising legislative, executive and judicial
rights in process of dealing with administrative disputes under the rule of
law state. These mechanisms also do not create favourable conditions for
protecting timely and fully the rights and legitimate interests of individual,
organization violated by authority when exercising executive power.
However, delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in Vietnam has not yet studied in depth, comprehensively and systematically
as a dissertation theme. Therefore, dissertation theme: "Delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam" responds to the urgent
needs of Vietnam in both legal theory and practical aspect.
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2. Subject and Scope of Research Theme

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- Clearly determining the scientific grounds for delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases in Vietnam.
- Evaluating the current practices in delimitation of the jurisdiction to
deal with administrative complaints and the jurisdiction of courts to deal with
administrative cases in Vietnam in both aspects of legislation and law enforcement.
- Proposing the opinions and solutions in both legislation and
enforcement aspects for ensuring that the delimitation of the jurisdiction to
deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases in Vietnam in coming years, meeting requirements
of rule of law state and global integration in Vietnam.
4. Research Methodology
Research has been carried out basing on the methodology of Marxism -
Leninism, Ho Chi Minh thought, and Vietnam Communist Party’s policy
for building rule of law state in open market economy and global
integration period.
In addition, there are some methodologies such as systems, analysis,
comparison, synthesis, statistics, specific historical study and results of
social surveys carried out in previous studies.
5. Research’s implication in science and practice aspects
Dissertation contributes to science in term of determining comprehensively
and systematically the jurisdiction in handling with administrative complaint
and lawsuit in Vietnam. The dissertation contributes:
- The dissertation introduces the concept of administrative redress which
includes administrative complaint and initiation of administrative cases.
- The dissertation introduces the concepts of jurisdiction to deal with
administrative complaints and jurisdiction of courts to deal with administrative
cases; points out the trend of diversifying channels for resolving administrative
disputes in Vietnam and around the world; and analyses good points and

deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases in Vietnam has been a significant topic discussed
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by many scholars. However, this topic has not yet studied comprehensively
and systematically. In addition, the recent changes in legislative views and
law enforcement for delimitation of jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases
in Vietnam.
On the other hand, the current changes in legislative views, legal
regulations and law enforcement related to jurisdiction to deal with
administrative complaint and jurisdiction of court to deal with administrative
lawsuit in Vietnam requires to study about delimitation of the jurisdiction to
deal with administrative complaints and the jurisdiction of courts to deal with
administrative cases in Vietnam as an essential science task during this period.
CHAPTER 2
THEORETICAL BASIS FOR DELIMITATION OF THE JURISDICTION
TO DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE
JURISDICTION OF COURTS TO DEAL WITH ADMINISTRATIVE CASE
2.1. Administrative redress and the diversity of jurisdiction to deal
with administrative dispute
2.1.1. Administrative redress
In order to ensure consistency of terms, "administrative redress"
reflects the common features of administrative complaint and administrative
case initiation, which includes:
Firstly, administrative redress refers to the right of self-defense and
self-determination of the object of public administration when executive
power was abused.
Secondly, objective of administrative redress refers to implementation
of executive power (mainly including administrative decision and action).
Thirdly, administrative redress can be carried out only in specific

Hence, settlement of administrative complaint is a channel of solving
administrative dispute through exercising executive power, under the
motto: use executive power to control executive power. Therefore, the
disadvantages inherent in this channel is not ensuring the objectivity and
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equality between complainant and complained; is not ensuring requirements
of "specialized" in process of dealing with administrative dispute. On
contrary, this channel also includes many advantages which should be
promoted such as: creating a quick and comprehensive mechanism for
handling with administrative dispute; strengthening relationship between
the subject and object of public administration; promoting the self-
management and self-responsibility of the national administration.
2.1.2.2. Jurisdiction to deal with administrative case
Through assessment of the legal regulations and law enforcement on
jurisdiction to deal with administrative case, jurisdiction to deal with
administrative case is carried out under the jurisdiction of court to adjudicate
administrative dispute under the administrative court procedure.
Therefore, administrative case adjudication is a channel of solving
administrative disputes through exercising the judicial power; under the
motto: use judicial power to control executive power. Hence, the disadvantages
inherent in this channel are: not ensuring the settlement of administrative
dispute quickly; not allowing review and adjudicate the reasonability of the
implementation of executive power, or the internal work of public
administration; not able to restore directly the rights and legitimate interests
of individual/organization which have been violated by exercising executive
power; not ensuring the "specialized" element in handling with administrative
dispute. However, the advantages of this channel must be utilized such as:
settlement of administrative dispute is independently; the equality between
the petitioner and petitioned person is ensured; subject’s responsibility in
exercising and dealing with administrative dispute will be enhanced.

Therefore, diversifying jurisdiction to handle with administrative disputes
is a common trend in countries around the world. However, Vietnam is not
able to set up channels to deal with administrative disputes by adminitrative
tribunals or mediation organs dute to the lack of capacity. Therefore,
dissertation only focuses on delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
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administrative cases in Vietnam which combines two measures carried out
under administrative procedure and administrative court procedure.
2.2. The viewpoints of delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
In Vietnam recently, there is a viewpoint such as: on delimitation of
the jurisdiction to deal with administrative complaints and the jurisdiction
of courts to deal with administrative cases is mentioned in a case when a
dispute over jurisdiction between two channels: administrative complaint
settlement and administrative case adjudication. This dispute is happened
when individual/organization exercise the right to complaint cannot get
agreement in selecting the channel to deal with administrative dispute. This
viewpoint does not reflect fully the relationship between two channels:
administrative complaint settlement and administrative case adjudication
based on a holistic unified mechanism of administrative dispute resolution.
This dissertation defines the concept of delimitation of jurisdiction
based on the viewpoint of delimitation such as: delimitation is a clear
division and determination of jurisdiction as well as the analysis of
jurisdiction to handle with administrative complaint and jurisdiction of
court to adjudicate administrative case mentioned in section 2.1.2.1 and
2.1.2.2 of dissertation, on delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases defined in a broad concept is the division of administrative

comply with legal regulations on scope of jurisdiction to deal with
administrative complaint; receiving administrative lawsuit must follow
legal regulations on scope of jurisdiction of court to deal with administrative
lawsuit; provisions which define the scope of administrative disputes
corresponding to jurisdiction of administrative complaint resolution and
jurisdiction of court to deal with cases must relevant to practice of
receiving these administrative disputes. On contrary, these provisions on
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jurisdiction will not come to effect if the administrative disputes are not
received in practice.
2.2.2. Ground for on delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
Reasonable on delimitation of the jurisdiction to deal with administrative
complaints and the jurisdiction of courts to deal with administrative cases is
a ground not only for ensuring the effectiveness and coherence of administrative
dispute resolution mechanism but also for ensuring the right to complain or
initiate. It also contributes to ensure that the executive power is exercised
legally and reasonably. In order to reach this aim, delimitation of the
jurisdiction to deal with administrative complaints and the jurisdiction of
courts to deal with administrative cases must be conducted on the basis of
the following grounds:
Firstly, the needs of administrative complaint and lawsuit.
Secondly, the specific features of jurisdiction to deal with administrative
complaint and lawsuit.
Thirdly, the organization and operation of the current national public
management and court system
Fourthly, the viewpoints of distribution of state functions in administrative
dispute resolution mechanism.
CHAPTER 3

Thirdly, individual/organization is not allowed to complain about
decision or acts of Prime Minister in exercising executive power because
the laws do not provide the jurisdiction of Prime Minister to deal with
administrative complaint. This issue is a main shortcoming of decentralization
of jurisdiction to deal with administrative complaint second time.
3.1.2. Disputes are under administrative jurisdiction of court
Assessments of the current legal regulations in Vietnam related to scope of
jurisdiction to deal with administrative complaint and jurisdiction of court,
reveals that:
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Firstly, disputes which are under jurisdiction to deal with administrative
complaint but not under jurisdiction of court include: decision in resolving
competition case; administrative decision, administrative act of organ in
charge of election; decision and act of civil enforcement of re-enforced
person and chief of re-enforced office; disciplinary decision of civil
servant; dismisal from office decision of civil servant (excluding the
dismisal from office decision of civil sevant who holds position from
Director General and equivalent or lower).
Secondly, disputes which are under jurisdiction of court but not
jurisdiction of administrative complaint resolution organs/competent person
include: complaint settlement decision on decision in resolving competition
case; administrative act of General State Audit; administrative decision of
State Audit and the competent persons in this organ; administrative decision,
administrative act of President Office, National Assembly Office, People’s
Procuracy, People’s Court and the competent persons in these organs;
administrative decision, administrative acts of organ (excluding decision on
handling with land dispute of People’s Committee).
Thirdly, some of disputes are not under jurisdiction of administrative
complaint resolution organ as well as the jurisdiction of court such as:
disputes related to administrative policy making decisions; legal normative

are not accepted for settlement; regulations on jurisdiction to handle with
administrative complaint at two levels and the law enforcement on receiving
and handling with administrative complaint are not strict enough.
Secondly, the imbalance between the needs of administrative complaint
of the people and the capacity of public administration organs have affected
negatively to the psychological and legal awareness of both the complainant
and the competent person in process of administrative complaint resolution.
Some issues have happened increasingly such as: "wish for lucks" complaint,
illegal complaint, or complaint with aggressive, negative attitude; avoidance
of responsibility; and non-complied with laws of administrative complaint
settlement person.
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3.2.2. Acceptance of administrative cases according to current legal
regulations in Vietnam
In Vietnam today, receipt of administrative case is mainly carried out
basing on regulations provided by Law on Administrative Court Procedure
and Resolution No.02/2011/NQ-HĐTP. Through examining these regulations,
it is seen that:
Firstly, the conditions for acceptance of the administrative case are
found indirectly through regulations on the cases of transfering lawsuit
petitions or returning lawsuit petitions.
Secondly, transfering of lawsuit petitions may cause problems such as:
pushing responsibility of the courts in accepting cases; accepting cases
become more complicated; and inconsistent with principle of ensuring the
right to make decision and right to self-determine of petitioners.
Thirdly, regulations on returning petitions are not clear, coherent, and
hardly to apply or even conflict with the other regulations on conditions,
form of petitions and jurisdiction in adjudicating administrative lawsuit.
Fourthly, law on administrative court procedure provides the cases of
returning petitions fully and tightly rather than the regulations on acceptance

decisions of the first-trial which was abolished in order to re-adjudicate
accounted for 9,3%, and 7% was revised).
Fourthly, pushing of responsiblity between the competent persons/organs
that are responsible for handling with administrative complaint and the
court is still a common issue.
In brief, although Law on Complaint and Decree No.75/2012 NĐ-CP
were promulgated after the Law on Administrative Court Procedure and
Resolution No.02/2011/NQ-HĐTP but: the contents and methods of
promulgating the current legal regulations on: objectives of administrative
lawsuit, disputes on jurisdiction of administrative case adjudication; acceptance
of administrative cases are more advantages than the contents and methods
of promulgating the current legal regulations on: objectives of administrative
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complaint; disputes on jurisdiction of administrative complaint settlement;
acceptance of administrative complaint.
Although the channel for handling with administrative complaint
established (23/11/1945) was sooner than the channel for adjudicating the
administrative lawsuit (01/07/1996) but the quality of initation, acceptance,
and adjudication of administrative cases is better than the quality of complaint,
acceptance, settlement of administrative complaint.
Although in Vietnam, the channel of administrative lawsuit adjudication
has more advantages than the channel of administrative complaint settlement
but the needs of initiation and the number of administrative lawsuit accepted
annually is so few in comparison with the needs of complaint and the
number of administrative complaint.
CHAPTER 4
VIEWS AND SOLUTIONS FOR DELIMITATION OF THE JURISDICTION TO
DEAL WITH ADMINISTRATIVE COMPLAINTS AND THE JURISDICTION
OF COURTS TO DEAL WITH ADMINISTRATIVE CASE IN VIETNAM
4.1. Views on delimitation of the jurisdiction to deal with administrative

of administrative dispute settlement (administrative complaint resolution
and administrative lawsuit adjudication).
4.2. Solutions for delimitation of the jurisdiction to deal with
administrative complaints and the jurisdiction of courts to deal with
administrative cases
4.2.1. Concerning to aspect of legislation
Dissertation proposes to revise and add some contents and methods of
promulgation of legal regulations related to delimitation of the jurisdiction
to deal with administrative complaints and the jurisdiction of courts to deal
with administrative cases, in specific as follows:
First, amending and adding regulations on right to complain and right
to initiate a case in order to ensure harmonization of objectives, subjective
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and grounds for exercising the right to complain and right to initiate
unreasonable administrative decision, action.
Second, amending and adding regulations on concept of complainant-
petitioner in order to distinguish the subjects having the right to complain -
initiate with the subjects exercising this right.
Third, the forms of administrative complaint are determined consistently
with the forms of initiation of administrative lawsuit and ensuring the
implementation of direct complaint.
Fourth, the objectives of administrative complaint and objectives of
administrative lawsuit are determined consistently as follows:
- Adminstrative decision which is a written decision issued by a competent
organ, organization or individual prescribed by laws applies once to one or
several particular objects for a specific matter in the administrative
management activities.
- An administrative act which is expressed in action or inaction of a
state organ, organization or a competent person prescribed by laws relates
to the rights and legitimate interests of one or several particular individuals,

complaint is still available.
In the case of disagreement with decision of the first administrative
complaint settlement, or a complaint is not settled from the date of expiry of
the settlement time limit, individual, organization has right to institute
administrative case at competent court prescribed by Law on Administrative
Court Procedure; or has a right to complain to the competent person who
has responsibility for second administrative complaint settlement if that
decision/action is not under jurisdiction of court. Second complaint or
initiation of administrative case must be carried within 30 days since
individual, organization received the first decision of administrative
complaint settlement or since a complaint is not settled from the date of
expiry of the settlement of time limit prescribed by Law on Complaint.
Tenth, using qualitative methods in accordance with excluded methods
replace for methods of making a list as current in order to decentralize the
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competence in resolving administrative complaint and adjudicating
administrative lawsuit.
Eleventh, defining principles for determining jurisdicion of the first
administrative complaint settlement for all administrative disputes provided by
Law on Complaint and providing the other cases by specialized legal documents.
Twelfth, defining jurisdiction to deal with administrative complaint
second time of of the head of organ, organization at direct higher level of
the fisrt complaint settlement person if these disputes are not under
jurisdiction of court.
Thirteenth, decentralization of jurisdiction to deal with administrative
case bases on the following principles:
Court at district level has function of the first-instance court to
adjudicate the administrative cases if petitioner that is organ, organization
from district to lower level or a competent person of this organ, organization.
Court at provincial level has function of the first-instance court to

4.2.2. Concerning to aspect of law enforcement
Dissertation proposes some necessary solutions for promoting law
enfocement related to delimitation of jurisdiction to deal with administrative
complaint and jurisdiction to deal with administrative cases, which includes:
First, enhancing the leading role of Communist Party in process of
dealing with administrative dispute.
Second, promoting capacity of state organs to deal with administrative
disputes.
Third, promoting co-operation among state agencies in process of
administrative dispute settlement.
Fourth, enhancing effectiveness of examination, supervision, detection
and settlement of violations in process of receiving, accepting, and handling
with administrative dispute.
Fifth, raising public legal awareness in administrative redress and
administrative dispute settlement.
Sixth, enhancing implementation of practical statistic on delimitation
of jurisdiction to deal with administrative complaint, and jurisdiction to
deal with administrative case.
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CONCLUSION
Administrative redress and administrative dispute settlement in
Vietnam has been a special topic mentioned by Party, State and many legal
scholars. Especially, delimitation of jurisdiction to deal with administrative
complaint and jurisdiction to deal with administrative case is always
defined as a key factor of administrative dispute mechanism and for
ensuring the right to complaint and initiate of individual, organization.
However, these two channels have been carried out and improved separately.
Although previous studies mentioned about administrative redress and
administrative dispute settlement but did not focus on delimitation of
jurisdiction to deal with administrative complaint and jurisdiction to deal