Chương 2 Luật khiếu nại 2011: Khiếu nại quyết định hành chính, hành vi hành chính

Chapter 2

COMPLAINTS ABOUT ADMINISTRATIVE DECISIONS, ADMINISTRATIVE ACTS

Section 1. COMPLAINTS

Article 7. Order of making a complaint

1. When having grounds to believe that an administrative decision or administrative act is unlawful or directly infringes upon his/her rights and lawful interests, a person may make a first-time complaint with the person who has issued such administrative decision or the agency that manages the person who has committed such administrative act, or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the first-time complaint settlement decision or the complaint remains unsettled although past the prescribed time limit, he/she may make a second-time complaint with the direct superior of the person competent to settle the first-time complaint or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the second-time complaint settlement decision or the complaint remains unsettled though past the prescribed time limit, he/she has right to institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

2. For an administrative decision or administrative act of a Minister, head of a Ministerial-level agency or Government- attached agency (hereinafter referred to as Minister), the complainant may make a complaint with the Minister or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the complaint settlement decision of the Minister or the complaint remains unsettled though past the prescribed time limit, he/she may institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

3. For an administrative decision or administrative act of the chairperson of the People's Committee of a province or centrally-run city (hereinafter referred to as provincial People's Committee), the complainant may make a first-time complaint with the chairperson of the provincial-level People's Committee or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the first-time complaint settlement decision of the chairperson of the provincial-level People's Committee or the complaint remains unsettled though past the prescribed time limit, he/she may make a second-time complaint with the Minister managing the related sector or field or institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

In case the complainant disagrees with the second-time complaint settlement decision of the Minister or the complaint remains unsettled though past the prescribed time limit, he/she may institute an administrative lawsuit at court in accordance with the Law on Administrative Procedures.

Article 8. Forms of complaint

1. Complaints may be made in written or verbal form.

2. In case complaints are made in written form, the written complaint must clearly indicate the date of complaint; the full name and address of the complainant; the name and address of the complained agencies, organizations or individuals; contents of and reason for the complaint; documents related to complaint contents and the request of the complainant for settlement. The written complaint must be signed or fingerprinted by the complainant.

3. In case the complainant makes a verbal complaint, the complaint recipient shall guide the complainant in making a written complaint or record in writing the complaint and request the complainant to sign or fingerprint in such record for confirmation, which clearly writes the contents specified in clause 2 of this Article.

4. In case many persons jointly make a complaint about the same content, procedures shall be implemented as follows:

a/ For a verbal complaint of many persons at the same time, the competent agency shall receive and guide these complainants in appointing a representative to present the complaint contents; the complaint recipient shall record in writing the complaint, clearly writing the contents specified in clause 2 of this Article. The reception of a complainant of many persons complies with Chapter V of this Law;

b/ For a written complaint made by many persons, such complaint must clearly write the contents specified in clause 2 of this Article, include the signatures of complainants, and appointment of a representative to present their opinions at the requests of complaint settler.

c/ The Government shall detail this clause.

5. In case a complaint is made by a representative, such representative must be one of the complainants, have a paper proving legality of representation, and implement the complaint as prescribed by this Law.

Article 9. Statute of limitation for making a complaint

The statute of limitation for making a complaint is 90 days, after receiving an administrative decision or knowing or being informed of an administrative decision or act.

In case a complainant fails to exercise the right to complain in accordance with the statute of limitation due to illness, natural disaster, enemy sabotage, working mission or study in a distant place or another objective obstacle, the period during which such obstacle exists is not counted into the statute of limitation for making a complaint.

Article 10. Withdrawal of complaints

A complainant may withdraw his/her complaint at any time in the course of complaint and its settlement; a written request for withdrawal must be made, signed or fingerprinted by the complainant and sent to the person competent to complaint settlement.

When receiving a written request for complaint withdrawal, the person competent to complaint settlement shall suspend the complaint settlement and notify such suspension in writing to the complainant.

Article 11. Complaints not eligible to be accepted for settlement

A complaint falling into one of the following cases is not accepted for settlement:

1. It is about an administrative decision or act within a state agency for directing and organizing the performance of tasks and official duties; an administrative decision or act related to direction and administration by an administrative agency toward its subordinate administrative agency; an administrative decision containing legal rules issued by competent agencies, organizations or persons according to the order and procedures prescribed in law on promulgation of legal documents; an administrative decision or act involving a state secret in the field of defense, security or foreign affairs as listed by the Government;

2. It is about an administrative decision or act not directly related to the rights and lawful interests of the complainant;

3. The complainant has no full civil act capacity and no a lawful representative;

4. The complaint is implemented by an unlawful representative;

5. There is no signature or fingerprint of complainant in the written complaint;

6. The statute of limitations or time limit for making a complaint has expired but the complainant has no legitimate reason;

7. A second-time complaint settlement decision has been issued;

8. There is a written notice of suspension of the complaint settlement and the complainant does not continue making complaint during 30 days after the issuance of such notice;

9. It has been accepted by a court for settlement or has been settled under a court judgment or decision other than a court’s decision on suspension of the settlement of an administrative case.

Section 2: RIGHTS AND OBLIGATIONS OF COMPLAINANTS, THE COMPLAINED SUBJECTS, COMPLAINT SETTLERS, LAWYERS AND LEGAL AID OFFICERS

Article 12. Rights and obligations of complainants

1. A complainant has the following rights:

a/ To make a complaint by him/herself.

In case the complainant is a minor or has lost, his/her civil act capacity, his/her representative at law may implement a complaint.

In case the complainant is ill or old and weak or has a physical defect or encounters an objective circumstance which causes him/her unable to implement a complaint, he/she may authorize his/her parent, spouse, blood sibling or adult child or another person with full civil act capacity to implement a complaint;

b/ To ask a legal counsel or authorize a lawyer to make a complaint to protect his/her rights and lawful interests.

In case the complainant is eligible for legal aid as specified by law, he/she is entitled to ask a legal aid officer to provide legal consultancy or authorize a legal aid officer to make a complaint to protect his/her rights and lawful interests;

c/ To participate in dialogs or authorize a lawful representative to do so;

d/ To be entitled to know, read, photocopy or copy documents and evidences collected by the complaint settler for settling his/her complaint, except information and documents involving state secrets;

dd/ To request relevant persons, agencies and organizations that are preserving or managing information and documents related to his/her complaint contents to provide such information and documents within 07 days after being requested for submission to the complaint settler, except information and documents falling in state secrets;

e/ To request the complaint settler to apply urgent measures to prevent possible consequences of the execution of the complained administrative decision;

g/ To show evidences of the complaint and make explanation on his/her opinions for these evidences;

h/ To receive a written reply on the acceptance of the complaint for settlement, to receive the complaint settlement decision;

i/ To have his/her infringed rights and lawful interests restored; to receive damage compensations in accordance with law;

k/ To make a second-time complaint or institute an administrative case at court in accordance with the Law on Administrative Procedures;

l/ To withdraw his/her complaint.

2. A complainant has the following obligations:

a/ To make a complaint with the right person who is competent to settlement;

b/ To honestly present the matter and show evidences of the correctness and reasonability of the complaint; to provide relevant information and documents to the complaint settler; to take responsibility before law for the presented contents and provided information and documents:

c/ To abide by the administrative decision or act about which he/she makes a complaint pending the complaint settlement, unless such decision or act is suspended from execution as prescribed in Article 35 of this Law;

d/ To strictly abide by the legally effective complaint settlement decision.

3. Complainants shall also implement other rights and obligations as prescribed by law.

Article 13. Rights and obligations of the complained subject

1. A complained subject has the following rights:

a/ To show evidences of the legality of the complained administrative decision or act;

b/ To be entitled to know, read, photocopy or copy documents and evidences collected by the complaint settler for settling the complaint, except information and documents falling in state secrets;

c/ To request relevant persons, agencies and organizations that are preserving or managing information and documents relating to the complaint contents to provide such information and documents within 07 days after being requested for submission to the complaint settler, except information and documents falling in state secrets;

d/ To receive the second-time complaint settlement decision.

2. A complained subject has the following obligations:

a/ To participate in dialogs or authorize a lawful representative to do so;

b/ To abide by the decision on verification of complaint contents issued by the agency or unit competent to settle the complaint;

c/ To provide information and documents relating to the complaint contents and make explanations about the legality and correctness of the complained administrative decision or act at the request of the complaint settler or the examining or verifying agency or unit within 07 days after being requested;

d/ To strictly abide by the legally effective complaint settlement decision:

dd/ To modify or cancel the complained administrative decision or to terminate the complained administrative act;

e/ To pay compensations for damages caused by his/her/its illegal administrative decision or act in accordance with the Law on the State's compensation liability.

3. The complained subject shall implement other rights and obligations as prescribed by law.

Article 14. Rights and obligations of first-time complaint settlers

1. A first-time complaint settler has the following rights:

a/ To request the complainant and relevant agencies, organizations and persons to provide information, documents and evidences within 07 days after request, for use as a basis for settling the complaint;

b/ To decide application or cancellation of urgent measures as prescribed in Article 35 of this Law.

2. A first-time complaint settler has the following obligations:

a/ To receive the complaint and notify in writing the complainant, the agency, organization or person competent to forward the complaint and the state inspectorate at the same level of the acceptance of the complaint for settlement with respect to complained administrative decision or act;

b/ To settle the complaint about an administrative decision or act when the complainant requests;

c/ To organize dialogs with the complainant, the complained subject and relevant agencies, organizations and persons;

d/ To send the complaint settlement decision to the complainant and take responsibility before law for the complaint settlement; for a complaint forwarded by a competent agency, organization or person, to have to notify settlement results to such agency, organization or person in accordance with law;

e/ To provide information, documents and evidences relating to the complaint contents at the request of the complainant; to provide the complaint settlement dossier at the request of the second-time complaint settler or court.

3. First-time complaint settlers shall settle the payment of compensations for damage caused by administrative decisions or acts in accordance with the Law on the State's compensation liability.

4. First-time complaint settlers shall implement other rights and obligations as prescribed by law.

Article 15. Rights and obligations of second-time complaint settlers

1. A second-time complaint settler has the following rights:

a/ To request the complainant, complained subject and relevant agencies, organizations and persons to provide information, documents and evidences within 07 days after request, for use as a basis for settling the complaint;

b/ To decide on application or cancellation of urgent measures specified in Article 35 of this Law;

c/ To summon relevant agencies, organizations and persons to participate in dialogs;

d/ To request an expertise;

e/ To consult the advisory council when necessary.

2. A second-time complaint settler has the following obligations:

a/ To receive and accept the complaint for settlement and make a dossier of the complaint case falling under his/her/its settling competence;

b/ To examine and verify the content of complaint;

c/ To organize dialogs with the complainant, the complained subject and relevant agencies, organizations and persons

d/ To issue and publicize the complaint settlement decision;

e/ To provide information and documents relating to the complaint contents at the request of the complainant, complained subject or court.

3. Second-time complaint settlers shall implement other rights and obligations as prescribed by law.

Article 16. Rights and obligations of lawyers and legal aid officers

1. A lawyer or legal aid officer has the following rights:

a/ To participate in the course of complaint settlement as requested by the complainant;

b/ To implement the rights and obligations of the complainant when being authorized to do so;

c/ To verify and collect evidences relating to the complaint contents as requested by the complainant and provide evidences to the complaint settler;

d/ To study the case file, photocopy and copy documents and evidences relating to the complaint contents for protecting the rights and lawful interests of the complainant, except information and documents falling in state secrets.

2. A lawyer or legal aid officer participating in the complaint settlement has the following obligations:

a/ To produce his/her lawyer or legal aid officer card and a decision on assignment to provide legal aid, written request for legal aid or power of attorney of the complainant;

b/ To strictly comply with contents and scope under the complainant's authorization.

3. Lawyers and legal aid officers shall implement other rights and obligations as prescribed by law.