Chương II Nghị định 16/2013/NĐ-CP rà soát hệ thống hóa văn bản quy phạm pháp luật: Nội dung, trình tự, thủ tục rà soát và xử lý kết quả rà soát văn bản

Chapter II

CONTENTS, ORDER AND PROCEDURES OF DOCUMENT REVIEW AND PROCESSING OF DOCUMENT REVIEW RESULTS

Article 11. Grounds for document review

1. Review based on documents serving as the legal grounds

A document serving as the legal grounds for document review is the one which is promulgated after, and contains provisions related to, the document to be reviewed, and falls in one of the following cases:

a/ Its legal effect is higher than the document under review, including also treaties which the State or the Government of the Socialist Republic of Vietnam signs or accedes to after the promulgation of the document under review;

b/ It is a document of the very agency or person having competence to promulgate the document under review;

c/ It is a document of an agency or a person having competence to perform the state management of the sector or field at the same level with the agency or person having competence promulgate the document under review.

2. Review based on the socio-economic development situation

The socio-economic development situation is the ground for review will be determined based on the guidelines, lines and policies of the Party and the State; survey results and practical information relating to the subjects and scope of regulation of documents under review.

Article 12. Review contents based on documents serving as the legal grounds

1. Checking the effectiveness of documents under review, including clear determination of the document to be still effective or wholly or partially ineffective.

A document is determined as wholly or partially ineffective when:

a/ The effective term provided in the document under review has terminated;

b/ The document under review has been revised or superseded with a new document of the state agency that has promulgated it;

c/ The document under review is cancelled or annulled by another document of a competent state agency or person;

d/ The subjects of application of the document under review no longer exist;

dd/ The document under review details and guides the implementation of another document of a People’s Council or People’s Committee which is no longer effective.

2. Reviewing the promulgation grounds of documents under review

a/ To identify documents replacing, canceling, annulling and revising the document serving as the basis for promulgation of the document under review;

b/ To identify newly promulgated documents which contain provisions related to the provisions of the document under review.

3. Checking the competence to promulgate documents under review

To consider the conformity of the competence to promulgate the document under review with the document serving as the legal grounds for review, including competence of both form and content.

4. Checking the contents of documents under review

To consider and determine provisions of the document under review which are contrary, overlapping or inconsistent with provisions of the document serving as the legal grounds for review.

In case documents serving as the legal grounds for review contain different provisions on the same issue, to apply the document of higher legal effect. If documents serving as the legal grounds for review promulgated by a single agency which contain different provisions on the same issue, to apply the document which is promulgated later.

Article 13. Order and procedures for review based on documents serving as the legal grounds

1. Identifying documents under review

Reviewing agencies will identify documents for review as soon as documents serving as the legal grounds for reviewing those documents are promulgated.

2. Considering and evaluating promulgation grounds for identification and gathering of all documents serving as the legal grounds for review.

3. Considering and determining the effectiveness of documents under review

a/ Based on the cases of invalidation of documents specified in Clause 1, Article 12 of this Decree, reviewing agencies will determine documents under review as partially or wholly ineffective and concurrently determine the reason for and the point of time of their invalidation.

When a document is determined to be wholly or partially ineffective under Point d, Clause 1, Article 12 of this Decree, the reviewing agency will annul it according to its competence or propose a competent agency to annul the whole or part of that document.

b/ Documents determined to be wholly or partially ineffective must be listed for announcement under Article 20 of this Decree.

4. Considering and evaluating the promulgation competence and contents of documents under review

Documents which are not wholly ineffective under Clause 3 of this Article will be further reviewed in terms of their promulgation competence and contents under Clauses 3 and 4, Article 12 of this Decree.

Article 14. Processing of results of review based on documents serving as the legal grounds

1. Results of review based on documents serving as the legal grounds include the evaluation of the effectiveness, legal grounds and promulgation competence of documents under review; and provisions of documents under review which are contrary, overlapping or inconsistent with provisions of documents serving as the legal grounds for review. Review results are presented in document review reports.

2. Based on document review results, reviewing agencies will handle or make dossiers proposing the handling of documents according to the forms specified in Article 19 of this Decree.

3. Reviewing agencies will handle reviewed documents they have promulgated or coordinate with the agencies that have jointly promulgated documents in handling those joint documents.

The annulment, revision or supersession of documents under review to be handled by reviewing agencies must be carried out in order to be effective concurrently at the effective time of the documents serving as the legal grounds for review. For resolutions of People’s Councils, review results must be processed at the nearest session of the People’s Councils.

4. When detecting through review contents to be handled by another agency, the reviewing agency will make a dossier proposing that agency to handle those contents.

A record proposing the handling of a document under review comprises the document under review, the document(s) serving as the legal grounds for review; the reviewing agency’s proposal to the agency or person competent to handle the document under review; opinions of related agencies and units and other related documents. This record must be sent to the competent agency before the effective date of the document serving as the legal grounds for review.

Article 15. Contents of review based on the socio-economic development situation

A reviewing agency will consider and compare contents of a document under review with the socio-economic development situation in order to identify contents no longer appropriate, specifically as follows:

1. The subjects of application of the document under review no longer exist;

2. Specific provisions of the document under review are no longer appropriate;

3. Provisions of the document under review should be promulgated in a document of higher legal effect;

4. There arise social relations with regulation required but there have not been competent state agencies’ regulations.

Article 16. Order and procedures for review based on the socio-economic development situation

1. Identifying documents for review

A reviewing agency will identify documents for review when the socio-economic situation relating to the subjects and scope of application of those documents changes to an extent which makes the contents of such documents no longer appropriate.

2. Gathering documents serving as the grounds for identifying changes of the socio-economic situation.

3. Considering and comparing provisions of documents under review with those of documents serving as the grounds for identifying changes of the socio-economic situation in order to identify contents no longer appropriate under Article 15 of this Decree.

Article 17. Processing of results of review based on the socio-economic development situation

1. Results of review based on the socio­economic development situation include the evaluation of the subjects of application of documents under review, specific provisions of documents under review which are no longer appropriate, provisions of documents under review which should be promulgated in documents of higher legal effect, and social relations which should be amended by documents of competent state agencies. Review results are presented in document review reports.

2. Based on review results, reviewing agencies will consider and decide to handle documents or make dossiers proposing the handling in the forms specified in Article 19 of this Decree.

3. Reviewing agencies will handle reviewed documents they have promulgated or coordinate with agencies that have jointly promulgated documents in handling those joint documents.

4. When detecting through review contents to be handled by another agency, the reviewing agency will make a record to propose that agency to handle those contents.

A record proposing the handling of a document under review comprises the document under review, the document presenting the socio-economic development situation, the reviewing agency’s assessment report on contents of the document under review which are no longer suitable to the socio-economic development situation, proposal for handling and opinions of related agencies and units.

Article 18. Record of document review

1. Reviewing agencies will formulate record of document review which comprise documents under review, documents serving as the legal grounds for review, documents serving as the basis for identifying changes in the socio-economic situation, documents expressing opinions of reviewing persons, records proposing the handling of documents under review (if any) and other related materials.

2. Records of document review must be kept in accordance with the law on archives.

Article 19. Forms of handling the reviewed documents

1. To suspend the enforcement of part or the whole of the document in case this document has not been revised, annulled or superseded in a timely manner and remains enforced, it might cause serious consequences, harming the interests of the State and the rights and legitimate interests of organizations and individuals.

2. To annul the whole or part of documents

a/ To annul the whole of the document when its subjects of application no longer exist or all of its provisions are contrary, overlapping or inconsistent with the document(s) serving as the legal grounds for review or are no longer suitable to the socio-economic development situation, without necessarily promulgating a superseding document.

b/ To annul part of the document when some of its subjects of application no longer exist or some of its contents are contrary, overlapping or inconsistent with the document(s) serving as the legal grounds for review or are no longer suitable to the socio-economic development situation, without necessarily promulgating a replacing or revising document.

c/ In case of promulgating a document which only annuls the whole or part of a reviewed document, the competent agency or person will promulgate an administrative document on such annulment. The annulled document must be listed for announcement under Article 20 of this Decree.

Document annulling central- or provincial- level documents must be published on Cong Bao and the website of the reviewing agency. Document annulling district- or commune- level documents must be posted up at the office of the reviewing agency and published on this agency’s website (if any).

3. To supersede the document when all or most of its contents are contrary, overlapping or inconsistent with the documents serving as the legal grounds for review or are no longer suitable to the socio-economic development situation.

4. To revise the document when some of its contents are contrary, overlapping or inconsistent with the document(s) serving the legal grounds for review or are no longer suitable to the socio-economic development situation.

5. To promulgate a new document when through review detecting a social relation which should be governed in a document of higher legal effect or a social relation which has not been amended by any regulation.

Article 20. Announcement of lists of wholly or partially ineffective documents

1. Annually, wholly or partially ineffective documents as prescribed at Points a, b, c and dd, Clause 1, Article 12, and Point c, Clause 2, Article 19, of this Decree must be listed for announcement according to the following provisions:

a/ Ministers and heads of ministerial-level agencies or government-attached agencies will announce lists of wholly or partially ineffective documents falling within their review responsibility.

b/ Chairmen of People’s Committees  will announce lists of wholly or partially ineffective documents falling within their review responsibility.

2. A document announcing a list of wholly or partially ineffective documents is an administrative document.

A document announcing a list of wholly or partially ineffective documents at central and provincial levels must be published on Cong Bao and the reviewing agency’s website.

A document announcing a list of wholly or partially ineffective documents at district and commune levels must be posted up at the office of the reviewing agency and its website (if any).

Article 21. Handling of documents with unlawful contents which are detected at the time of their promulgation

1. When detecting through review a document with unlawful contents at the time of its promulgation which must be examined under the Government’s Decree No. 40/2010/ND-CP of April 12, 2010, on examination and handling of legal documents, the competent reviewing agency or person will, pursuant to Decree No. 40/2010/ND-CP, examine according to its/his/her competence or propose a competent agency to examine that document.

2. When detecting through review a document promulgated by the National Assembly, the National Assembly Standing Committee, the President, the Government or the Prime Minister with unconstitutional or unlawful contents at the time of its promulgation, the reviewing agency will coordinate with related agencies in proposing a competent agency or person to handle that document in accordance with law.