Luật Khiếu nại, tố cáo sửa đổi 2005 số 58/2005/QH11

LAW

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF THE LAW ON COMPLAINTS AND DENUNCIATIONS

Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which was amended and supplemented under Resolution No. 51/2001/QH10 of December 25, 2001, of the Xth National Assembly, the 10th session;
This Law amends and supplements a number of articles of the December 2, 1998 Law on Complaints and Denunciations, which was amended and supplemented under the June 15, 2004 Law Amending and Supplementing a Number of Articles of the Law on Complaints and Denunciations.

Article 1.-

To amend and supplement the following articles of the Law on Complaints and Denunciations:

1. Clause 16, Article 2 is amended and supplemented as follows:

 “16. Legally effective complaint settlement decisions include first-time complaint settlement decisions and second-time complaint settlement decisions about which the complainants do not further appeal or initiate an administrative lawsuit before the court within the time limit prescribed by law.”

2. Article 17 is amended and supplemented as follows:

 “Article 17.-

1. The complainants shall have the following rights:

a/ To make complaints by themselves; where the complainants are minors or persons who, due to mental or other illnesses, are incapable of perceiving or controlling their acts, their representatives at law shall make complaints; where the complainants are ailing, old and weak or physically disabled or for other objective reasons, they cannot make complaints by themselves, they may authorize their parents, spouses, blood siblings, adult children or other persons to make complaints;

b/ To ask for lawyers’ legal assistance in the complaining process;

c/ To know the evidence used as grounds for complaint settlement; to adduce and explain evidence for the complaints;

d/ To receive written reply on the acceptance of their complaints for settlement; to know information and documents on complaint settlement; to receive complaint settlement decisions;

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

e/ To further lodge their complaints or initiate administrative lawsuits before the court according to the provisions of law on complaints and denunciations, and on administrative procedures;

g/ To withdraw their complaints at any time in the course of complaint settlement.

2. The complainants shall have the following obligations:

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

b/ To honestly present the matters, provide information and documents to complaint settlers; bear responsibility before law for the contents they have presented and for information and documents they have provided;

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

3. Article 18 is amended and supplemented as follows:

 “Article 18.-

1. The complained persons shall have the following rights:

a/ To be informed of grounds for the complaints of the complainants; to adduce evidence on the lawfulness of the complained administrative decisions or administrative acts;

b/ To receive complaint settlement decisions of persons competent to settle the complaints for the second time or court judgments or decisions, for complaints they have settled but the complainants further lodge or initiate administrative lawsuits before the court.

2. The complained persons shall have the following obligations:

a/ To receive and notify in writing the complainants of the acceptance for settlement of complaints about complained administrative decisions or administrative acts; to modify or cancel complained administrative decisions or administrative acts; to send settlement decisions to the complainants and bear responsibility before law for their settlement; where the complaints are forwarded by agencies, organizations or individuals, to notify the settlement or settlement results to such agencies, organizations or individuals according to the provisions of the Law on Complaints and Denunciations;

b/ To justify the lawfulness and correctness of the complained administrative decisions or administrative acts, and provide relevant information and documents when so requested by second-time complaint settlers;

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

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

4. Article 23 is amended and supplemented as follows:

 “Article 23.-

Presidents of People’s Committees of provinces and centrally-run cities (hereinafter referred to as provincial-level People’s Committees) shall have the competence:

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

2. To settle complaints further lodged after having been settled for the first time by presidents of district-level People’s Committees;

3. To settle complaints further lodged after having been first settled by directors of provincial services or equivalent bodies under provincial-level People’s Committees with contents falling under the management by provincial-level People’s Committees.”

5. Article 25 is amended and supplemented as follows:

 “Article 25.-

Ministers, heads of ministerial-level agencies and Government-attached agencies shall have the competence:

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

2. To settle complaints further lodged after having been first settled by persons defined in Article 24 of the Law on Complaints and Denunciations;

3. To settle complaints with contents falling under the state management of their respective ministries or branches, which are further lodged after having been first settled by directors of provincial services or equivalent bodies under provincial-level People’s Committees.”

6. Article 26 is amended and supplemented as follows:

 “Article 26.-

The Inspector General shall have the competence:

1. To settle complaints which are further lodged after having been first settled by heads of Government-attached agencies;

2. To assist the Prime Minister in monitoring, inspecting and urging ministries, ministerial-level agencies, Government-attached agencies and People’s Committees of all levels to receive citizens, settle complaints and enforce legally effective complaint settlement decisions.

In case of detecting law violations that cause damage to the State’s interests and/or the legitimate rights and interests of citizens, agencies or organizations, to propose the Prime Minister or competent persons to apply necessary measures to stop these violations and examine the responsibility of, and handle, violators.”

7. Article 28 is amended and supplemented as follows:

 “Article 28.-

The Prime Minister shall have the competence:

1. To lead the work of complaint settlement by ministries, ministerial-level agencies, Government- attached agencies and People’s Committees of all levels;

2. To settle proposals of the Inspector General defined in Clause 2, Article 26 of the Law on Complaints and Denunciations.”

8. Article 32 is amended and supplemented as follows:

 “Article 32.-

Complaints falling into one of the following cases shall not be accepted for settlement:

1. The complained administrative decisions or administrative acts are not directly related to legitimate rights and interests of the complainants;

2. The complainants do not have full capacity for civil acts while having no lawful representative;

3. The representatives are unlawful;

4. The statute of limitations for lodging complaints or the time limit for further lodging complaints has expired;

5. The complaints for which second-time complaint settlement decisions have been issued;

6. The complaints have been accepted by the court for settlement or already settled under court judgments or decisions.”

9. Article 36 is amended and supplemented as follows:

 “Article 36.-

1. The time limit for first-time settlement of a complaint shall not exceed 30 days after the date of its acceptance for settlement; for complicated cases, such time limit may be longer but must not exceed 45 days after the date of its acceptance for settlement.

In deep-lying or remote areas where travel is difficult, the time limit for first-time settlement of a complaint shall not exceed 45 days after the date of its acceptance for settlement; for complicated cases, such time limit may be longer but must not exceed 60 days after the date of its acceptance for settlement.

2. Within the time limit defined in Clause 1 of this Article, if competent persons fail to settle the complaints, they shall be disciplined. The complainants may request immediate superiors of persons who have failed to settle the complaints to consider the disciplining of such persons.”

10. Article 37 is amended and supplemented as follows:

 “Article 37.-

In the process of first-time complaint settlement, the complaint settlers must meet and talk directly with the complainants and the complained persons to clarify the contents of the complaints, the complainants’ claims and the proposed solutions to settling to the complaints. Where the complainants invite lawyers, these lawyers may join in the complaint settlement process.

The first-time complaint settlers must issue written complaint settlement decisions and send such decisions to the complainants, the complained persons and persons with related rights and interests. Complaint settlement decisions must be publicized.”

11. Article 38 is amended and supplemented as follows:

 “Article 38.-

A first-time complaint settlement decision must have the following contents:

1. Date of issuance;

2. Names and addresses of the complainant and the complained person;

3. Contents of the complaint;

4. Results of verification of the complaint contents; legal grounds for complaint settlement;

5. Conclusions on the complaint contents whether they are true, partially true or wholly wrong;

6. Upholding, modifying or canceling part or the whole of the complained administrative decisions, stopping the complained administrative acts; and settling specific matters in the complaint;

7. Compensation for victims (if any);

8. Rights to further lodge the complaint or initiate an administrative lawsuit before the court.”

12. Article 39 is amended and supplemented as follows:

 “Article 39.-

Within 30 days as from the date of expiration of the settlement time limit defined in Article 36 of the Law on Complaints and Denunciations during which the complaint is not settled, or as from the date of receiving the first-time complaint settlement decision, the complainant who disagrees therewith may further lodge the complaint to a person competent to settle second-time complaints or initiate an administrative lawsuit before court; for deep-lying and remote areas where travel is difficult, the above-said time limit may be longer but must not exceed 45 days.

Where the complainant disagrees with the first-time complaint settlement decision of minister, head of ministerial-level agency or president of provincial-level People’s Committee, he/she may initiate an administrative lawsuit before the provincial-level People’s Court, unless otherwise provided for by law.”

13. Article 40 is amended and supplemented as follows:

 “Article 40.- In case of further lodging the complaint, the complainant shall have to send an application, together with the first-time complaint settlement decision and relevant documents (if any) to the second-time complaint settler.”

14. Article 41 is amended and supplemented as follows:

 “Article 41.-

Within 10 days as from the date of receiving complaints which fall under their settling competence but do not fall into one of the cases defined in Article 32 of the Law on Complaints and Denunciations, the second-time complaint settlers shall have to accept such complaints for settlement and notify thereof in writing to the complainants and the first-time complaint settlers; in case of refusal to accept the complaints for settlement, they must notify such in writing to the complainants, clearly stating the reasons therefor.”

15. Article 42 is amended and supplemented as follows:

 “Article 42.-

In the process of second-time complaint settlement, if deeming that the enforcement of the complained administrative decisions or the first-time complaint settlement decisions will cause irremediable consequences, the second-time complaint settlers shall have to decide or propose competent authorities to issue decisions on suspension of the enforcement of these decisions.

The suspension duration shall not exceed the remaining time of the settlement time limit. Suspension decisions must be sent to the complainants, the first-time complaint settlers and persons with related rights and interests. Where the reasons for suspension no longer exist, the suspension decisions must be annulled immediately.”

16. Article 43 is amended and supplemented as follows:

 “Article 43.-

1. The time limit for the second-time settlement of a complaint shall not exceed 45 days as from the date of its acceptance for settlement; for complicated cases, such time limit may be longer but must not exceed 60 days as from the date of acceptance of the complaint for settlement.

In deep-lying and remote areas difficult to access, the time limit for the second-time settlement of a complaint shall not exceed 60 days as from the date of its acceptance for settlement; for complicated cases, the time limit for complaint settlement may be longer but must not exceed 70 days as from the date of acceptance of the complaint for settlement.

2. Within the time limit defined in Clause 1 of this Article, if competent persons fail to settle the complaints, they shall be considered for discipline. The complainants may request immediate superiors of persons who fail to settle complaints to consider the disciplining of such persons.”

17.- Article 44 is amended and supplemented as follows:

 “Article 44.-

1. In the course of second-time complaint settlement, complaint settlers shall have the following rights:

a/ To request the complainants to provide information, documents and evidence on the contents of the complaints;

b/ To request the complained persons to explain about the complained contents in writing;

c/ To request the first-time complaint settlers, involved individuals, agencies and organizations to provide information related to complaint contents;

d/ To summon the complainants and the complained persons and organize dialogues between them;

dd/ To conduct on-the-spot verification;

g/ To request evaluation and apply other measures according to the provisions of law.

2. Individuals, agencies and organizations must strictly comply with requests defined in Clause 1 of this Article.”

18. Article 45 is amended and supplemented as follows:

 “Article 45.-

1. In the course of second-time complaint settlement, the complaint settlers may meet and talk in person with the complainants and the complained persons to verify the contents of the complaints, the complainants’ claims and proposed solutions to settling the complaints. Where the complainants seek for lawyers’ legal assistance, such lawyers may participate in the complaint settlement process.

2. The second-time complaint settlers must issue written complaint settlement decisions. A complaint settlement decision must have the following contents:

a/ Date of issuance;

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

c/ Contents of the complaint;

d/ Conclusions on the settlement of the complaint by the first-time complaint settler;

dd/ Verification results;

e/ Legal grounds for the settlement of the complaint;

g/ Conclusion on the contents of the complaints, whether they are true, partially true or wholly wrong. Where the complaints are true or partially true, requesting the persons who have issued complained administrative decisions or committed complained administrative acts to modify or cancel part or whole of such decisions or stop such acts;

h/ Compensation for damage (if any);

i/ Right to initiate an administrative lawsuit before the court.

3. The second-time complaint settlement decisions must be sent to the complainants, the complained persons, the first-time complaint settlers, persons with related rights and interests, and the complaint forwarders within 7 days after the date of issuance.

The second-time complaint settlement decisions must be publicized.”

19. Article 46 is amended and supplemented as follows:

 “Article 46.- Within 30 days as from the date of expiration of the settlement time limit defined in

Article 43 of the Law on Complaints and Denunciations, during which the complaint is not settled,

or as from the date of receiving the complaint settlement decision, the complainant who disagrees therewith may initiate an administrative lawsuit before the court; for deep-lying and remote areas difficult to access, the said time limit may be longer but must not exceed 45 days.”

20. Article 47 is amended and supplemented as follows:

 “Article 47.-

1. The settlement of complaints must be recorded in dossiers. A dossier on complaint settlement comprises of:

a/ Written complaint or written record of the verbal complaint;

b/ Written reply of the complained person;

c/ Minutes on the verification, conclusions, evaluation results, dialogue minutes;

d/ Complaint settlement decision;

dd/ Relevant documents.

2. Each dossier on complaint settlement must be paged from the first to the last document and archived according to the provisions of law. Where the complainant initiates an administrative lawsuit before the court, such dossier shall be transferred to the court when so requested.”

Article 2.-

1. To annul Clause 15, Article 2 of the Law on Complaints and Denunciations.

2. To replace the phrase “these shall be the final decisions on the settlement of complaints” in Clause 2, Article 54 of the Law on Complaints and Denunciations with the phrase “these shall be decisions effective for compliance.”

Article 3.-

This Law shall take effect as from June 1, 2006.

Complaints which are received for settlement before the effective date of this Law shall be dealt with under the provisions of the 1998 Law on Complaints and Denunciations and the 2004 Law Amending and Supplementing a Number of Articles of the Law on Complaints and Denunciations. The Government shall detail and guide the implementation of this Law.

This Law was passed on November 29, 2005, by the XIth National Assembly of the Socialist Republic of Vietnam at its 8th session.