Chương 2 Luật Khiếu nại, tố cáo 1998: Khiếu nại, giải quyết khiếu nại quyết định hành chính, hành vi hành chính

Chapter II

COMPLAINTS AND SETTLEMENT OF COMPLAINTS ABOUT ADMINISTRATIVE DECISIONS, ADMINISTRATIVE ACTS

SECTION 1. RIGHTS AND OBLIGATIONS OF THE COMPLAINANTS AND THE COMPLAINED

Article 17.-

1. The complainant shall have the following rights:

a/ To make complaints by themselves or through their lawful representatives;

b/ To receive written replies on the acceptance of complaints for settlement; to receive decisions on complaint settlement;

c/ To be entitled to the restoration of their legitimate rights and interests which were infringed upon, and to the compensation for damage according to the provisions of law.

d/ To be entitled to further their complaints or initiate administrative lawsuits in courts according to the provisions of this law as well as the administrative procedures legislation;

e/ To withdraw their complaints at any time during the process of settlement.

2. The complainants shall have the following obligations:

a/ To complain to the right persons with settling competence;

b/ To honestly present the matters; provide information and documents for complaint settlers; and take responsibility before law for the contents they have presented as well as their provision of such information and documents;

c/ To strictly abide by the legally effective decisions on complaint settlement.

Article 18.-

1. The complained shall have the following rights:

a/ To show evidence of the legality of the complained administrative decisions and/or administrative acts;

b/ To receive the complaint settlement decisions of the subsequent complaint settler regarding the complaints they have settled, but the complainants have furthered.

2. The complained shall have the following obligations:

a/ To receive and settle complaints about the administrative decisions and/or administrative acts; to send written notices on the receipt of complaints for settlement as well as settlement decisions to complainants and take responsibility before law for their settlement; in cases where complaints are forwarded by agencies, organizations and/or responsible person, the latter must be informed of the settlement or settlement results according to the provisions of this law;

b/ To make justifications for the complained administrative decisions and/or administrative acts and to provide relevant information and documents when requested by competent bodies, organizations and/or individuals;

c/ To strictly abide by legally effective decisions on complaint settlement;

d/ To compensate the damage and overcome the consequences, caused by their illegal administrative decisions and/or administrative acts, according to the provisions of law.

SECTION 2. COMPETENCE TO SETTLE COMPLAINTS

Article 19.- The presidents of the People’s Committees of communes, wards and district towns (collectively called the commune level), heads of the agencies under the People’s Committees of rural districts, urban districts and the provincial capitals and towns are competent to settle complaints about the administrative decisions and/or administrative acts of their own as well as of responsible persons under their direct management.

Article 20.- The presidents of the People’s Committees of rural and urban districts, provincial capitals and towns (collectively called the district level) shall have the competence.

1. To settle complaints about their own administrative decisions and/or administrative acts;

2. To settle complaints which have already been settled by presidents of the commune-level People’s Committees or heads of agencies attached to the district-level People’s Committees, but further made.

Article 21.- The heads of agencies under the provincial/municipal departments and equivalent levels are competent to settle complaints about the administrative decisions and/or administrative acts of their own or of officials or employees under their direct management.

Article 22.- Directors of the departments under the People’s Committees of the provinces and centrally-run cities and equivalent levels have the competence:

1. To settle complaints about the administrative decisions and/or administrative acts of their own or officials or employees under their direct management;

2. To settle complaints which have already been settled by persons defined in Article 21 of this law, but still further made.

Article 23.- Presidents of the People’s Committees of the provinces and centrally-run cities (collectively called the provincial level) shall have the competence:

1. To settle complaints about their own administrative decisions and/or administrative acts;

2. To settle complaints which have already been settled by Presidents of the district-level People’s Committees but further made; these shall be the final decisions on the settlement of such complaints;

3. To settle complaints which have already been settled by directors of departments under the provincial-level People’s Committees or by equivalent levels, but further made with contents falling under the scope of management of the provincial-level People’s Committees; these shall be the final decisions on the settlement of such complaints.

Article 24.- The heads of the sections under the ministries, the ministerial-level agencies and agencies attached to the Government shall have competence to settle complaints about administrative decisions and/or administrative acts of their own and/or of officials and employees under their direct management.

Article 25.-

1. The ministers, the heads of the ministerial-level agencies and the heads of the agencies attached to the Government are competent:

a/ To settle complaints about administrative decisions and/or administrative acts of their own, and/or of officials and employees under their direct management;

b/ To settle complaints which have already been settled by persons defined in Article 24 of this law, but further made;

c/ To settle complaints which have been first settled by presidents of the provincial-level People’s Committee and complaints which have already been settled by directors of departments or equivalent levels under the provincial-level People’s Committees but further made with contents falling under the State management scope of their respective ministries or branches.

2. The complaint settlement decisions of the ministers and the heads of the ministerial-level agencies defined in Points b and c of Clause 1, this Article, shall be the final ones.

Article 26.- The State Inspector-General shall have the competence:

1. To settle complaints which have already been solved by heads of the agencies attached to the Government but further made, except for complaints settled by decisions of heads of the agencies under the Government, namely ministers; these shall be the final decisions on the settlement of such complaints;

2. To verify, make conclusion on and propose the resolution of, complaints under the Prime Minister’s jurisdiction;

3. To settle complaints under the Prime Minister�s authorization according to the Government�s regulations;

4. To propose the Prime Minister to reconsider final decisions on complaint settlement, which are found having violated law, thus causing damage to interests of the State as well as the legitimate rights and interests of citizens, agencies and organizations.

Article 27.-

1. Chief inspectors of the provincial level and the chief inspectors of the district level shall have the competence:

a/ To verify, make conclusion on and propose the resolution of, complaints which fall under the settling competence of the Presidents of the People’s Committees of the same level;

b/ To settle complaints under the authorization of the presidents of the People’s Committees of the same level according to the Government’s regulations.

2. The chief inspectors of the ministries, the ministerial-level agencies and the agencies attached to the Government and the chief inspectors of the provincial/municipal departments or equivalent levels shall have to verify, make conclusion on, and propose the resolution of, complaints which fall under the jurisdiction of the heads of such agencies.

Article 28.-

1. The Prime Minister shall have the competence to make the final decisions on the settlement of:

a/ Complaints which have already been settled by ministers or heads of the ministerial-level agencies but further made, except for those with final settlement decisions;

b/ Particularly complicated complaints involving many localities and many fields of State management.

2. The Prime Minister shall have the competence to reconsider the final complaint settling decisions which have violated laws, causing damage to interests of the State as well as the legitimate rights and interests of citizens, agencies or organizations.

Article 29.-

1. The Prime Minister shall settle disputes over the complaint settling competence among ministries, ministerial-level agencies, agencies attached to the Government and provincial-level People’s Committees.

2. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the provincial-level People’s Committees shall settle disputes over the complaint-settling competence among agencies and units under their management.

SECTION 3. COMPLAINTS, PROCEDURES FOR SETTLEMENT THEREOF

Article 30.- The complainants shall have to first complain with the persons who have issued the administrative decisions or with bodies managing the officials and/or employees who have committed the administrative acts, and the complainants have grounds to believe that such decisions and/or acts have contravened laws, infringing upon their legitimate rights and interests.

Article 31.- The statute of limitation for a complaint shall be 90 days from the date of receiving the administrative decision or detecting the administrative act.

In cases where a complainant cannot exercise his/her right to complain within such statute of limitation due to his/her illness, natural calamities, enemy sabotage, his/her travel to distant places for mission or study or due to other objective obstacles, the duration when such obstacles exist shall not be calculated into the statute of limitation for the complaint.

Article 32.- Complaints made in one of the following circumstances shall not be accepted for settlement:

1. The complained administrative decisions and/or administrative acts do not directly relate to the complainants’ legitimate rights and interests;

2. The complainants have no full acity for their acts while having no lawful representatives, except otherwise provided for by law;

3. The representatives are unlawful;

4. The statute of limitations for complaints and the timelimit for further complaints have expired;

5. The complaints have been settled by final decisions;

6. The complaints have been accepted by courts for settlement or already settled by the court judgements and/or decisions.

Article 33.-

1. Where complaints are made in writing, the written complaints must clearly state the dates of complaints; names and addresses of the complained agencies, organizations and/or individuals; the contents and reasons of the complaints and the requests of the complainants. The written complaints must be signed by the complainants.

2. Where the complainants come to make complaints personally, the responsible officials shall have to guide them to make the complaints in writing or record their contents, as prescribed in Clause 1 of this Article, with the signatures of the complainants.

3. Where the complaints are made through the complainants� representatives, the latter shall have to show papers evidencing the legality of their representation, and the complaint-making must comply with the procedures prescribed in Clause 1 and Clause 2 of this Article.

Article 34.- Within 10 days after receiving a written complaint which falls under his/her settling competence but not under the circumstances prescribed in Article 32 of this law, the first complaint settler shall have to take it for settlement and notify in writing the com-plainant thereof; in case of refusal to take the complaint for settlement, the reason(s) therefor must be given.

Article 35.- In the course of complaint settlement, if deeming that the execution of a complained administrative decision will cause irremediable consequences, the first complaint settler shall have to issue a decision to temporarily suspend the execution of such administrative decision. The suspension duration shall not exceed the remainder of the timelimit for the first settlement. The suspension decision must be addressed to the complainant and persons with related rights and interests. When the reason for suspension is deemed no longer in existence, that suspension must be cancelled immediately.

Article 36.- The timelimit for the first settlement of a complaint shall not exceed 30 days after the receipt of the complaint for settlement; for a complicated case, such timelimit may be longer but shall not exceed 45 days after the receipt of complaint for settlement.

In deep-lying or distant areas difficult to access, the timelimit for the first settlement of a complaint shall not exceed 45 days after the receipt of the complaint for settlement; for a complicated case, such timelimit may be longer but shall not exceed 60 days after the receipt of complaint for settlement.

Article 37.- When necessary, the first complaint settler shall meet and talk directly with the complainant and the complained person for the clarification of the complained contents as well as the complainant’s claims, and for settlement directions.

The first complaint settler shall have to issue the complaint settlement decision in writing and send it to the complainant and persons with related rights and interests; when necessary, such a decision shall be publicly announced to the complainant and the complained person.

Article 38.- A decision on the first settlement of a complaint must include the following contents:

1. The day, month and year when the decision is issued;

2. The names and addresses of the complainant and the complained as well;

3. The complained contents, which are true, partially true or totally untrue;

4. The legal grounds of the complaint;

5. Retaining, amending or canceling part or whole of the administrative decision; terminating the administrative acts which are complained about; the settling of specific matters in the complained contents;

6. Compensation to victims (if any);

7. The right to further lodge complaints or initiate an administrative lawsuit at court.

Article 39.- If within 30 days from the date of expiry of the settlement timelimits prescribed in Article 36 of this law a complaint is not settled, or from the date of receipt of the decision on the first settlement of the complaint which the complainant disagrees with, he/she may further lodge the complaint to the next competent complaint settler or initiate an administrative lawsuit at a court as prescribed by law; for deep-lying and distant areas difficult to access, the above-said timelimit may be longer but shall not exceed 45 days.

Article 40.- In case of a continued complaint, the complainant shall have to submit together with the written complaint a copy of the previous complaint-settling decision and relevant documents (if any) to the next complaint settler.

Article 41.- Within 10 days from the date of receipt of a complaint which falls under his/her settling competence but does not fall in one of the circumstances prescribed in Article 32 of this law, the next complaint settler shall have to receive it for settlement and notify in writing the complainant and the prior complaint settler thereof; in case of refusal to receive it for settlement the reason(s) therefor must be given.

Article 42.- In the course of subsequent complaint settlements, if deeming that the execution of the complained administrative decision and/or the previous complaint-settling decision will cause irremediable consequences, the complaint settler shall have to issue a decision or request the competent level to issue a decision to temporarily suspend the execution of such decision.

The suspension timelimit shall not exceed the remainder of the settlement timelimit. The suspension decision must be addressed to the complainant, the prior complaint settler and persons with related rights and interests. When the reason(s) for suspension is(are) deemed no longer existing, the suspension decision must be immediately cancelled.

Article 43.- The timelimit for each subsequent settlement of a complaint shall not exceed 45 days from the date of receiving it for settlement’ for a complicated case or matter, such timelimit may be longer but shall not exceed 60 days from the date of receiving it for settlement.

In deep-lying and distant areas with difficulties in travel, the timelimit for each subsequent settlement of a complaint shall not exceed 60 days from the date of receiving it for settlement; for a complicated case or matter, such timelimit may be longer but shall not exceed 70 days from the date of receiving it for settlement.

Article 44.-

1. In the course of subsequent settlements, the complaint settler shall have the rights to:

a/ Request the complainant to provide information, documents and evidences on the complained contents;

b/ Request the complained person to make a written justification for the complained contents;

c/ Request the prior complaint settler, concerned individuals, agencies and organizations to provide information, documents and evidences related to the complained contents;

d/ Summon the complainant and the complained person for dialogue, when necessary;

e/ Make on-spot verification;

f/ Request an evaluation and apply other measures according to law.

2. Individuals, agencies and/or organizations, upon the receipt of requests prescribed in Clause 1 of this article, shall have to meet them.

Article 45.-

1. The subsequent complaint settlers have to issue written decisions on complaint settlement, such a decision must contain the following:

a/ Day, month, year when the decision is issued;

b/ Names and addresses of the complainant and the complained person;

c/ Contents of the complaint;

d/ Evaluation and verification results;

e/ Legal grounds for the settlement of the complaint;

f/ Conclusion on the complained contents and the settlement by the previous settler;

g/ Retaining, amending, canceling or requesting to amend, cancel part or whole of the administrative decision; terminating the administrative act which is complained about; settling particular issues in the complained contents;

h/ Compensation for damage (if any);

i/ The right to further lodge the complaint; in case of a final complaint-settling decision, it must be clearly stated therein.

2. Decisions on subsequent complaint settlements must be addressed to the complainant, the prior settler, persons with related rights and interests and the written complaint sender within 7 days after the issuance of the settlement decisions.

Article 46.- If within 30 days from the date of expiry of the settlement timelimits prescribed in Article 43 of this law a complaint is not settled, or from the date of receiving the settlement decision the complainant disagrees with it, he/she may further lodge the complaint to the competent subsequent complaint settler except where it is the final decision on the settlement of the complaint; for deep-lying and distant areas with travel difficulties, the above-said timelimit may be longer but shall not exceed 45 days.

Article 47.-

1. The complaint settlement documents must be compiled into dossier. Such a complaint settlement dossier shall include:

a/ The written complaint or the recorded version of the verbal complaint;

b/ The written reply by the complained;

c/ The records on the examination, verification, conclusion, evaluation results;

d/ The complaint-settling decision;

e/ Other relevant documents.

2. The complaint settlement dossiers must be page-numbered according to the document order and kept according to the provisions of law. In cases where a complainant further lodges his/her complaint or initiate an administrative lawsuit in court, such a dossier must be handed over to the agency or court with settling competence when requested.