Chương IV: Nghị định 124/2020/NĐ-CP quy định chi tiết một số điều và biện pháp thi hành Luật Khiếu nại 2011 Trình tự, thủ tục giải quyết khiếu nại

Chapter IV

COMPLAINT-HANDLING PROCEDURES

Section 1. ACCEPTANCE AND PREPARATION FOR VERIFICATION OF COMPLAINTS

Article 16. Acceptance of complaints

1. Within 10 business days of receiving a complaint against the administrative decision or action or disciplinary decision against official, falling under jurisdiction and not subject to a case in Article 11 of the Law on Complaints, the first or second complaint-handling person shall accept it. In case of a complaint by multiple complainants with spokepersons designated, the complaint letter, once accepted, must bear all signatures of the complainants and enclose with a letter of designation of spokepersons as prescribed in Article 7 hereof. If the complaint letter is not accepted, the complaint-handling person must provide explanation in writing.

2. In case of a complaint against the administrative decision or action, the complaint-handling person must notify the complainant, the entity from whom the complaint has been referred (if any) and the inspection authority at the same level of the acceptance or non-acceptance in writing. In case of a complaint against the disciplinary decision against official, a written notice of acceptance or non-acceptance shall be sent to the complainant. In case of a complaint by multiple complainants with spokepersons designated, a written notice of acceptance or non-acceptance shall be sent to one of those spokepersons.

The notice of acceptance of complaint is made in accordance with Form No. 03 hereto appended. The notice of non-acceptance of complaint is made in accordance with Form No. 04 hereto appended.

Article 17. Review of administrative decision or action, disciplinary decision against official

1. Following the acceptance of a complaint, the first complaint-handling person shall review the administrative decision or action complained of.

In case of a complaint against the disciplinary decision against official, the complaint-handling person shall personally review or assign a responsible to review that disciplinary decision against official.

2. Matters to be reviewed:

a) Legal bases for issuance of the administrative decision or performance of the administrative action, or issuance of the disciplinary decision against official;

b) The authority for issuance of the administrative decision or performance of the administrative action, or issuance of the disciplinary decision against official;

c) Contents of the administrative decision or performance of the administrative action, or issuance of the disciplinary decision against official;

d) Procedures for issuance, layout and format of the administrative decision or disciplinary decision against official;

dd) Others (if any).

3. Following the review, if the complaint is deemed right, the first complaint-handling person shall make a complaint-handling decision as quickly as possible. If the complaint-handling person does not find just cause to reach a conclusion about the complaint, he/she shall proceed the verification.

In case of a complaint against disciplinary decision against official, if the complaint is well founded, the complaint-handling person shall request the official discipline committee to propose the competent person to handle the complaint.

Article 18. Designation of duty to verify the complaining matter

The complaint-handling person shall, personally or designate the inspection authority at the same level or a responsible entity under his/her authority to, verify the complaining matter. The complaint-handling person or designated entity shall issue a decision to verify the complaining matter, specifying the persons in charge of verification, their right and obligations, time and matters to be verified. A decision to verify the complaining matter is made in accordance with Form No. 05 hereto appended.

Section 2. VERIFICATION OF THE COMPLAINING MATTER

Article 19. Working with the complainant, spokeperson, authorized person, lawyer, legal aid provider of the complainant

1. The complaint-handling person or person designated to verify the complaining matter (hereinafter referred to as the verifying person) shall work with and request the complainant, spokeperson, authorized person, lawyer, legal aid provider of the complainant to provide information and documents related to their identities and complaint details.

2. The meeting and discussion between them shall be recorded in minutes, with specific time, place, attendants, contents and their signatures. If the complainant fails to show cooperation attitude, work or sign the minutes, the minutes shall bear the signature of the witness or the representative of the local government. The minutes shall be made in at least two copies, each party shall keep one copy. The minutes is made in accordance with Form No. 06 hereto appended.

Article 20. Working with the person with relevant rights and interests and the complainee

1. During the first complaint-handling process, the complaint-handling person or verifying person shall work with persons with relevant rights and interests and require them to provide information and documents related to the complaining matter.

2. During the second complaint-handling process, the complaint-handling person or verifying person shall work with the complainee and persons with relevant rights and interests, and require them to provide information and documents related to the complaining matter and further explain about the administrative decision or action complained of,

3. The meeting and discussion mentioned in clauses 1 and 2 hereof shall be recorded in a minutes, with specific time, place, attendants, contents and their signatures. The minutes shall be made in at least two copies, each party shall keep one copy. The minutes is made in accordance with Form No. 06 hereto appended.

Article 21. Requesting relevant entities to provide information, documentation and proof

During the verification process, the complaint-handling person or verifying person shall, in writing, request relevant entities to provide information, documentation and proof related to the complaining matter. The request is made in accordance with Form No. 07 hereto appended.

In case the verification takes the form of a meeting with relevant entities to provide information, documentation and proof, a minutes shall be taken. The minutes shall be made in at least two copies, each party shall keep one copy. The minutes is made in accordance with Form No. 06 hereto appended.

Article 22. Receipt and processing of information, documentation and proof

The complaint-handling person or verifying person shall, upon receipt of information, documentation and proof from the complainant, spokeperson, authorized person, lawyer, legal aid provider of the complainant, the complainee or entities in person, take a record of receipt. The record of receipt is made in accordance with Form No. 08 hereto appended.

Article 23. Verification visit

1. When necessary, the complaint-handling person or verifying person may undertake a verification visit to collect, examine, and determine if the provided information, documentation and proof related to the complaint are accurate, lawful and sufficient.

2. The verification visit must be recorded in writing, with specific time, place, participants, matters verified, results, opinions of participants and relevant entities.  The record is made in accordance with Form No. 06 hereto appended.

Article 24. Soliciting expert advice

1. The complaint-handling person may solicit expert advice when deeming that the complaint requires further expert assessment as the basis for the complaint-handling decision.

2. The complainant, the complainee and relevant entities may request the complaint-handling person to solicit expert advice. If the said request of the complainant, the complainee and relevant entities is considered well founded, the complaint-handling person will solicit expert advice.

The decision to solicit expert advice prescribed in clauses 1 and 2 hereof is made in accordance with Form No. 09 hereto appended.

3. The expert advice shall be solicited in writing, specifying the name of expert organization, information and documentation to be assessed, matters to be assessed, time limit for expertise conclusion.

The request is made in accordance with Form No. 10 hereto appended.

Article 25. Working with concerned parties during verification of the complaining matter

If the verification result is different from the information, documentation and proof provided by the complainant or complainee, the complaint-handling person or verifying person shall work with the complainant or complainee; or engage other entities in necessary case.

The meeting and discussion must be recorded in minutes, with specific time, place, attendants, contents and opinions of attendants, matters mutually agreed, issues that remain controversial and signatures of concerned parties. The minutes shall be made in at least two copies, each party shall keep one copy. The minutes is made in accordance with Form No. 06 hereto appended.

Article 26. Suspension of enforcement of the administrative decision complained of

1. During the complaint handling process, if deeming that the enforcement of the administrative decision complained of may cause an irremediable consequence, the complaint-handling person shall issue a decision to suspend the enforcement. The suspension period may not exceed the remaining time of the complaint-handling time limit. The suspension decision is made in accordance with Form No. 11 hereto appended.

2. In considering that the ground for suspension no longer exists, the complaint-handling person shall issue another decision to reverse the suspension decision. The decision to reverse the suspension decision is made in accordance with Form No. 12 hereto appended.

Article 27. Report on verification of complaining matter

1. The verifying person shall send a honest and impartial report on verification of the complaining matter to the complaint-handling person.

2. A report on verification of complaining matter shall contain the contents mentioned in clause 4 Article 29 of the Law on Complaints. The report shall specify details about the complainant, the complainee, the administrative decision or action or disciplinary decision against official complained of, request of the complainant, bases for complaint; previous complaint-handling decision (if any); verification results associated with every matter to be verified; conclusion that whether the complaining matter is totally right, totally wrong, or partially right; proposal to sustain or wholly reverse or partially amend the administrative decision or disciplinary decision against official complained of or stop the administrative action complained of; proposal to issue a complaint-handling decision.

The report on verification result is made in accordance with Form No. 13 hereto appended.

Article 28. Dialogue in the second complaint-handling process

1. During the second complaint-handling process, the complaint-handling person must hold a dialogue.

a) If the complaint-handling person is the President of People’s Committee of district, Director of department of province or equivalent, he/she must have a dialogue with the complainant.

b) If the complaint-handling person is the Minister, Head of ministerial-level agency, or the President of People’s Committee of province, he/she must engage in a dialogue of a delicate complaint (the complaint by multiple complainants, receiving different opinions from competent authorities about the measure at issue, the complainant shows harsh attitude, the public is concerned about the case, the case affects political security and social peace).

In other cases, the complaint-handling person may designate his/her deputy or the head of specialized agency at the same level or the head of affiliated entity designated the verification duty to engage in a dialogue with the complainant. During the dialogue, the designated person must promptly report to the complaint-handling person on complicated issues going beyond their competence; and report the dialogue result and be held accountable for that report.

2. The presiding person of the dialogue must hold the dialogue with the complainant, the complainee and persons with related rights and interests. The presiding person must state matters to be discussed, verification result of the complaining matter; attendants to the dialogue may present their opinions, provide extra information, documentation and proof related to the complaint and their requests. The presiding person must notify attendants, including the complainant, the spokeperson (for complaint by multiple complainants), the complainee, persons with related rights and obligations, and other entities of the time, place, matters to be discussed.

3. The dialogue must be recorded in minutes, with specific time, place, attendants (clearly state who are present and absent; if the complainant does not attend the dialogue, stating absence with or without reasons), contents, opinions of attendants, matters mutually agreed, issues that remain controversial and signatures of concerned parties. The minutes shall be made in at least three copies, each party shall keep one copy. The minutes is made in accordance with Form No. 14 hereto appended.

Section 3. ISSUANCE, SENDING, DISCLOSURE OF COMPLAINT-HANDLING DECISION, KEEPING AND MANAGEMENT OF COMPLAINT-HANDLING DOSSIER

Article 29. Issuance, sending and disclosure of complaint-handling decision

1. Pursuant to regulations and laws, verification result, and dialogue result (if any), the complaint-handling person shall issue a complaint-handling decision following the provisions below:

a) The first complaint-handling decision about the administrative decision or action shall conform to provisions under Article 31 of the Law on Complaints; the second complaint-handling decision shall conform to Article 40 of the Law on Complaints.

The complaint-handling decision must specify requirements for acceptance of complaint; name and address of the complainant, the complainee; complaint details, reasons for complaint, requests of the complainant; previous complaint-handling decision (if any); verification result; bases for conclusion that whether the complaining matter is totally right, totally wrong, or partially right; decision to sustain or wholly reverse or partially amend the administrative decision complained of or stop the administrative action complained of (for the first complaint-handling decision); or request the maker of administrative decision or action complained of to, wholly or partially, amend or terminate the administrative decision, or stop the administrative action (for the second complaint-handling decision); restitution to the aggrieved party (if any) and resolution of other issues; the right to file the second complaint, the right to bring an administrative lawsuit to the court.

b) The first complaint-handling decision about the disciplinary decision against official shall conform to provisions under Article 54 of the Law on Complaints; the second complaint-handling decision about the disciplinary decision against official shall conform to Article 56 of the Law on Complaints.

The complaint-handling decision must specify name and address of the complainant, the complainee; complaint details, reasons for complaint, verification result, dialogue result; legal bases for complaint handling; conclusion about the complaint; decision to sustain, amend or wholly reverse or partially amend the disciplinary decision against official complained of (for the first complaint-handling decision); or conclusion regarding every matter in the complaint and the first complaint-handling decision (for the second complaint-handling decision); restitution to the aggrieved party (if any) and resolution of other issues; the right to file the second complaint, the right to bring an administrative lawsuit to the court.

c) The first complaint-handling decision is made in accordance with Form No. 15, the second complaint-handling decision is made in accordance with Form No. 16 hereto appended.

2. Sending complaint-handling decision:

a) Regarding the complaint-handling decision about administrative decision or action:

Within 3 business days of issuing the first complaint-handling decision, the complaint-handling person shall send the complaint-handling decision to the complainant, the immediate superior of the complaint-handling person, the second complaint-handling person, persons with related rights and obligations; relevant entities.

Within 7 business days of issuing the second complaint-handling decision, the complaint-handling person shall send the complaint-handling decision to the complainant, the complainee, the first complaint-handling person, persons with related rights and obligations; relevant entities.

b) Regarding the complaint-handling decision about disciplinary decision against official:

Within 3 business days of issuing the first complaint-handling decision, the complaint-handling person shall send the complaint-handling decision to the complainant, the complainee, persons with related rights and obligations; relevant entities.

Within 7 business days of issuing the second complaint-handling decision, the complaint-handling person shall send the complaint-handling decision to the complainant, the first complaint-handling person, persons with related rights and obligations; relevant entities. The second complaint-handling decision of Minister, Head of ministerial-level agency, Head of Governmental agency, or the President of People’s Committee of province must be sent to the Inspector-General and Minister of Ministry of Home Affairs.

3. Disclosure of complaint-handling decision:

Within 15 days of issuing the complaint-handling decision, the complaint-handling person shall disclose it in any of the following forms:

a) Disclosing at a meeting of the workplace of the complainant

Attendants: the complaint-handling person, the complainant or representative, the complainee and relevant entities. 3 days before an open meeting, the complaint-handling person shall send notice to relevant entities in advance.

b) Posting up at the head office or place of citizen reception of the complaint-handling body. The posting time of the complaint-handling decision is at least 15 days after the posting date.

c) Announcement by means of mass media

The complaint-handling decision shall be announced by means of mass media, including audio and visual newspapers, print newspapers, or online newspapers. The complaint-handling person shall choose any of the mentioned means of mass media to make the announcement. If the complaint-handling body has a web portal or website, the complaint-handling decision shall be posted on that web portal or website. The complaint-handling decision must be broadcast at least twice on the audio newspaper or visual newspaper; or be posted in at least 2 continuous issues of the print newspaper. The posting time on the online newspaper, web portal or website is at least 15 consecutive days.

Article 30. Keeping and management of complaint-handling dossier

The verifying person shall keep records of the complaint-handling dossier; gather information, documentation and proof related to the complaint, verification results, conclusions, proposals, and the complaint-handling decisions.