Chương VIII Luật tố tụng hành chính 2015: Phát hiện và kiến nghị sửa đổi, bổ sung hoặc bãi bỏ văn bản quy phạm pháp luật trong quá trình giải quyết vụ án hành chính

Chapter VIII

DISCOVERY, AND RECOMMENDATION ON AMENDMENT, SUPPLEMENTATION OR ANNULMENT, OF LEGAL DOCUMENTS IN THE COURSE OF SETTLEMENT OF ADMINISTRATIVE CASES

Article 111. Discovery, and recommendation on amendment, supplementation, or annulment, of legal documents

1. In the course of settlement of an administrative case, if the court discovers a legal document relevant to the settlement showing signs of contravention of the Constitution, a law or a legal document of a superior state agency:

a/ In case a decision to bring the case to trial has not yet been issued, the chief justice of the court currently settling the case shall make recommendations according to his/her jurisdiction or request a competent person specified in Article 112 of this Law to do so;

b/ In case a decision to bring the case to trial has been issued or the case is being examined according to the cassation or reopening procedures, the trial panel shall request the chief justice of the court currently settling the case to make recommendations or request a competent person specified in Article 112 of this Law to do so.

2. A written recommendation or request for a competent person’s recommendation on amendment, supplementation or annulment of a legal document must have the following principal contents:

a/ Name of the court issuing the written recommendation or request;

b/ Summarized contents of the case and legal matters which shall be dealt with to settle the case;

c/ Title, serial number and date of the legal document relevant to the case settlement and recommended to be amended, supplemented or annulled;

d/ Analysis of provisions of the legal document showing signs of contravention of the Constitution, a law or a legal document of a superior state agency;

dd/ The court’s recommendation on, or request for, amendment, supplementation or annulment of the legal document.

3. The written recommendation or request for a competent person’s recommendation shall be enclosed with the legal document recommended to be amended, supplemented or annulled.

Article 112. Competence to recommend amendment, supplementation or annulment of legal documents

1. Chief justices of district-level courts may recommend amendment, supplementation or annulment of legal documents of state agencies at the district level or lower level; propose chief justices of provincial-level courts to amend, supplement or annul legal documents of provincial- level state agencies; and report to chief justices of provincial-level courts for proposing the Chief Justice of the Supreme People’s Court to recommend amendment, supplementation or annulment of legal documents of central state agencies.

2. Chief justices of provincial-level courts and superior people’s courts may recommend amendment, supplementation or annulment of legal documents of state agencies at the provincial level or lower levels; and propose the Chief Justice of the Supreme People’s Court to recommend amendment, supplementation or annulment of legal documents of central state agencies.

3. The Chief Justice of the Supreme People’s Court may recommend amendment, supplementation or annulment of legal documents of central state agencies on his/her own initiative or at the proposal of chief justices of courts specified in Clauses I and 2 of this Article.

4. In case the trial panel discovers at the court hearing a legal document showing signs of contravention of the Constitution, a law or a legal document of a superior state agency, it shall report such in writing to the chief justice specified in Clause 1,2 or 3 of this Article for the latter to exercise the right to make recommendations. In this case, the trial panel may suspend the court hearing under Point d, Clause I, Article 187 of this Law pending opinions of the chief justice or suspend the settlement of the case upon receiving a written recommendation of the chief justice of the competent court specified at Point e, Clause 1, Article 141 of this Law.

Article 113. Responsibility to respond to proposals for recommendation on amendment, supplementation or annulment of legal documents

Within 10 days after receiving a written request specified in Article 111 of this Law, the chief justice with the recommending competence shall consider and respond to it as follows:

1. In case the proposal is grounded, he/she shall make and send a written recommendation to the competent state agency to amend, supplement or annul the legal document in question and notify such to the proposing court so that the latter can issue a decision to suspend the settlement of the case.

2. In case the proposal is groundless, he/she shall issue a written reply to the proposing court for continued settlement of the case in accordance with law.

Article 114. Responsibility to realize recommendations on amendment, supplementation or annulment of legal documents

An agency receiving a court’s recommendation on amendment, supplementation or annulment of a legal document shall realize such recommendation as follows:

1. Within 30 days after receiving a written recommendation of the chief justice of a court specified in Article 112 of this Law, on a legal document detailing or guiding the Constitution, a law or a legal document of a superior state agency, the agency that has issued such legal document shall consider and issue a written reply to the recommending court. Past that time limit, if receiving no reply, the court may apply a document of higher legal validity to settle the case.

2. The response to recommendations on amendment, supplementation or annulment of laws or resolutions of the National Assembly or ordinances or resolutions of the National Assembly Standing Committee must comply with law.