Chương VIII: Nghị định 34/2016/NĐ-CP quy định chi tiết và biện pháp thi hành Luật ban hành văn bản quy phạm pháp luật Kiểm tra, xử lý văn bản quy phạm pháp luật

Chapter VIII

EXAMINATION AND HANDLING OF LEGAL DOCUMENTS

Section 1. SUBJECTS, CONTENTS, PRINCIPLES AND METHODS OF EXAMINATION AND HANDLING OF LEGAL DOCUMENTS

Article 103. Documents to be examined and handled

1. Documents to be examined comprise:

a/ Circulars of ministers and heads of ministerial-level agencies:

b/ Joint circulars of ministers or heads of ministerial-level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy;

c/ Resolutions of People’s Councils, decisions of People’s Committees;

d/ Documents which contain legal norms but do not take the form of legal document; documents which contain legal norms or take the form of legal document but are promulgated by agencies or persons without promulgating competence.

2. Documents to be handled comprise:

a/ Unlawful documents, including documents promulgated ultra vires; documents with contents contrary to the Constitution or legal documents of higher legal effect; documents seriously violating regulations on order and procedures for formulation and promulgation of legal documents;

b/ Documents with errors in promulgation bases or presentation formats or techniques;

c/ Documents prescribed at Point d, Clause 1 of this Article.

Article 104. Contents of document examination

1. Examination of the document promulgating competence, including examination of competence with regard to form and content.

2. Examination of contents of documents.

3. Examination of promulgation bases; presentation formats and techniques; document formulation and promulgation order and procedures.

Article 105. Principles of document examination and handling

1. To ensure comprehensiveness, timeliness, objectivity, publicity and transparency; proper competence, order and procedures; combination of examination by competent agencies and persons and self-examination by promulgating agencies and persons; and coordination among related agencies.

2. Not to take advantage of the examination and handling of documents for self-seeking purposes, or to cause difficulties to the operation of agencies or persons competent to promulgate documents and intervene in the process of handling unlawful documents.

3. Agencies and persons competent to examine and handle documents shall take responsibility for examination conclusions and document handling decisions.

Article 106. Methods of document examination

1. Self-examination.

2. Competence-based examination:

a/ Examination of documents sent by promulgating agencies or persons;

b/ Examination of documents when receiving requests or recommendations on documents with unlawful signs;

c/ Locality-based examination of documents at promulgating agencies, and examination of documents based on subject matters, sectors or fields.

Article 107. Legal bases for determining unlawful contents of examined documents

The legal bases for determining unlawful contents of an examined document are legal documents meeting the following conditions:

1. Their legal effect are higher than the examined document’s;

2. They are effective at the time of promulgating the examined document or have not yet been effective at the time of promulgating the examined document but have been passed or signed for promulgation and will be effective before or at the same time with the examined document.

A document with suspended effect prescribed in Article 153 of the Law may not be used as the legal basis for examining documents from the time of suspension to the time of resumption of its effect under the decision of a competent state agency.

Article 108. Proposal for handling agencies and persons promulgating unlawful documents

On the basis of unlawful contents of a document and the level of actual damage caused by the unlawful document, the agency or person competent to examine that document shall propose:

1. The agency or person having promulgated the unlawful document to promptly take measures to remedy the consequences caused by the promulgation and implementation of the unlawful document.

2. A competent agency or person to consider and decide on the form of handling the agency or person having promulgated the unlawful document.

Article 109. Disclosure of document handling results

1. The result of handling an unlawful legal document shall be published by the agency or person promulgating such document in “CONG BAO”, the web portal or website of the promulgating agency or posted up at the places prescribed in Article 98 of this Decree.

2. The result of handling the documents prescribed at Point d, Clause 1, Article 103 of this Decree shall be sent to the agencies, organizations and individuals to which those documents were sent previously. In case those documents have been published in “CONG BAO” web portals or websites of the promulgating agencies or posted up, the handling result shall be published in those media.

Article 110. Document examination dossiers

1. Agencies and persons competent to examine documents shall make document examination dossiers.

2. A document examination dossier must comprise the document containing unlawful contents, the document examination form made according to Form No. 01 provided in Appendix III to this Decree, the document handling result and other related documents (if any).

3. Document examination dossiers shall be kept in accordance with the law on archives.

Section 2. SELF-EXAMINATION AND HANDLING OF LEGAL DOCUMENTS

Article 111. Responsibility for self-examination of documents

1. Ministers, heads of ministerial-level agencies, People’s Councils and People’s Committees at all levels, and local administrations of special administrative-economic units shall examine documents promulgated or jointly promulgated by them right after the documents are promulgated or when receiving requests or recommendations from agencies, organizations or individuals.

2. Agencies and responsible persons shall assist ministers, heads of ministerial-level agencies, People’s Councils and People’s Committees at all levels, and local administrations of special administrative-economic units in the self-examination of documents:

a/ Heads of legal organizations of ministries or ministerial-level agencies shall act as the focal point for assisting ministers or heads of ministerial-level agencies in the self examination of circulars and joint circulars promulgated by ministers or heads of ministerial-level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy;

b/ The director of the Department of Examination of Legal Normative Documents of the Ministry of Justice shall act as the focal point for assisting the Minister of Justice in the self-examination of circulars and joint circulars promulgated by the Minister of Justice and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy;

c/ Heads of legal organizations of government-attached agencies shall coordinate with legal organizations of ministries whose ministers have promulgated documents on the fields of operation of government-attached agencies in the self-examination of documents;

d/ Legal Affairs Boards of People’s Councils shall assist People’s Councils in the self- examination of documents of the latter;

dd/ Directors of provincial-level Justice Departments, heads of Justice Divisions and heads of agencies acting as the focal point as assigned by People’s Committees of special administrative-economic units, shall assist People’s Committees of the same level in the self- examination of documents;

e/ Judiciary-civil status officers shall assist commune-level People’s Committees in the self-examination of documents.

3. The director of the Department of Examination of Legal Normative Documents of the Ministry of Justice, heads of legal organizations of ministries or ministerial-level agencies shall coordinate with related agencies and units of the Supreme People’s Court or the Supreme People’s Procuracy in the self-examination of joint circulars of ministers or heads of ministerial-level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy.

4. Related agencies and units shall promptly provide necessary information and documents and coordinate with agencies and responsible persons prescribed in Clauses 2 and 3 of this Article in the self-examination of documents.

Article 112. Handling of unlawful documents

1. When detecting a document with unlawful signs, an agency or a unit conducting self- examination prescribed in Clause 2 or 3, Article 111 of this Decree shall make a document examination dossier and promptly report on the document examination result to the agency or person having promulgated that document for consideration and handling in accordance with law.

2. A report on self-examination of a document with unlawful signs must cover the following contents:

a/ Evaluation of the document’s unlawful contents and proposal for handling, handling time limit and remedies of consequences caused by the document (if any);

b/ Determination of responsibilities of cadres and civil servants advising the formulation of, appraising and promulgating the document.

3. The promulgating agency or person shall promptly handle the promulgated unlawful document.

4. The document handling result shall be disclosed in accordance with Clause 1, Article 109 of this Decree.

Section 3. EXAMINATION AND HANDLING OF DOCUMENTS ACCORDING TO COMPETENCE

Sub-section 1. DOCUMENT EXAMINATION COMPETENCE

Article 113. Competence of ministers and heads of ministerial-level agencies

1. Ministers and heads of ministerial-level agencies shall examine documents on issues related to sectors or fields under their management, which are promulgated by other ministers, heads of other ministerial-level agencies, provincial-level People’s Councils and People’s Committees and local administrations of special administrative-economic units.

Heads of legal organizations of ministries or ministerial-level agencies shall assist ministers or heads of ministerial-level agencies in examining documents under the examination competence of ministers or heads of ministerial-level agencies.

Heads of legal organizations of government-attached agencies shall coordinate with legal organizations of ministries and ministerial-level agencies performing the state management of the sectors or fields of operation of government-attached agencies in examining documents containing provisions on the fields of operation of government-attached agencies.

2. Competence of the Minister of Justice:

a/ The Minister of Justice shall exercise the document examination power in accordance with Clause 1 of this Article and assist the Prime Minister in examining circulars of ministers and heads of ministerial-level agencies; contents of pro visions on the fields of state management of ministries or ministerial-level agencies of joint circulars of ministers or heads of ministerial- level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy; resolutions of provincial-level People’s Councils, decisions of provincial-level People’s Committees, legal documents of local administrations of special administrative-economic units related to various sectors or fields of state management;

b/ The director of the Department of Examination of Legal Normative Documents of the Ministry of Justice shall assist the Minister of Justice in examining the documents prescribed at Point a of this Clause.

3. The Minister of Justice shall request ministries, ministerial-level agencies and local administrations to examine legal documents under the examination competence of the latter when there are reports or recommendations of individuals or organizations.

4. The Minister-Chairperson of the Government Office shall exercise the examination power in accordance with Clause 1 of this Article and assist the Prime Minister in examining circulars of the Minister of Justice; and joint circulars of the Minister of Justice and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy.

5. The Minister of Justice shall report on cases of dispute over the document examination competence to the Prime Minister for decision.

Article 114. Competence of chairpersons of provincial- and district-level People’s Committees

1. Chairpersons of provincial-level People’s Committees shall examine documents of district-level People’s Councils and People’s Committees.

2. Chairpersons of district-level People’s Committees shall examine documents of commune-level People’s Councils and People’s Committees.

3. Directors of provincial-level Justice Departments and heads of district-level Justice Divisions shall assist chairpersons of People’s Committees of the same level in examining the documents prescribed in Clauses 1 and 2 of this Article.

Article 115. Order of document examination according to competence

1. Receipt of a document to be examined

A document-examining agency shall open a book of incoming documents to monitor the receipt of documents to be examined.

2. The head of the document-examining agency shall appoint a person to examine the document.

3. The document examiner shall consider and evaluate the constitutionality, lawfulness and consistency of the examined document.

4. Reporting on the document examination result and proposal for handling:

a/ When detecting unlawful signs of the examined document, the document examiner shall make a document examination form, report on the examination result to the head of the examining agency and propose handling measures;

b/ Depending on the nature and severity of unlawfulness of the document and its consequences, the document examiner may propose the form of handling the document; handling of responsibilities of the competent agency or person having promulgated the unlawful document; handling of responsibilities of cadres and civil servants having advised the formulation, appraisal, verification and promulgation of the unlawful document in case they are at fault.

5. Conclusion of document examination:

a/ The head of the document-examining agency shall consider and conclude according to his/ her competence or propose a competent agency or person to consider and conclude unlawful contents of the document;

b/ The examination result shall be sent to the agency or person having promulgated the document for consideration and handling in accordance with law.

6. In case the agency or person having promulgated the document fails to handle the unlawful document or the document-examining agency disagrees with the handling result, the document-examining agency shall propose a competent agency or person to consider and handle the document in accordance with regulations.

A dossier submitted to a competent agency or person for consideration and handling of a document must comprise a report of the document-examining agency; the examined document; legal bases for examination; the document examination form made according to Form No. 01 provided in Appendix III to this Decree; opinions of agencies (if any); the examination conclusion of the document-examining agency; written explanations and notices of handling results of the agency having the examined document (if any) and related documents (if any).

The document-examining agency shall open a book for monitoring the handling of unlawful documents according to Form No. 02 provided in Appendix III to this Decree to monitor and urge the handling of documents.

Article 116. Examination of documents based on localities, subject matters, sectors and fields

1. Locality-based document examination:

a/ When detecting unlawful signs of a document lately affecting the economy and society, if finding necessary, an agency or a person competent to examine documents prescribed in Clause l, or Point b, Clause 2 of Article 113, or Clause 3, Article 114 of this Decree, shall form a team for locality-based examination of the document at the document-promulgating agency. The document-examining agency shall notify the agency having the document to be examined of the examination team composition, and examination time and place and agenda. The agency having the document to be examined shall prepare related contents and dossiers at the request of the document-examining agency;

b/ The examination team shall conduct examination and make conclusions and proposals for, or report to a competent agency or person to consider and propose, the handling of the unlawful document; and concurrently propose the consideration of responsibilities of the agency or person formulating and promulgating the unlawful document;

c/ In case of forming an inter-agency team for locality-based examination of a document, the agency having the document to be examined shall coordinate with the agency in charge of examination in preparing necessary conditions to serve the examination team and implementing the examination plan in accordance with Clause 2 of this Article.

2. Document examination based on subject matters, sectors and fields:

a/ Ministers, heads of ministerial-level agencies, chairpersons of provincial-level People’s Committees and district-level People’s Committees shall approve plans on document examination based on subject matters, sectors or fields and urge, direct and examine the implementation of these plans;

b/ Ministers, heads of ministerial-level agencies, and chairpersons of provincial- and district-level People’s Committees shall decide to form inter-agency examination teams to examine documents based on subject matters or sectors or fields under their examination competence;

c/ Examining agencies shall notify in advance the examination based on subject matters, sectors or fields to agencies having documents to be examined. Agencies having documents to be examined shall coordinate with examination teams in examining documents, preparing relevant contents and dossiers related to examined documents at the request of examination teams and according to the examination plans of document-examining agencies;

d/ An inter-agency examination team conducting examination of a document based on subject matter, sector or field shall organize, and coordinate with the agency in charge of examination and agency or locality having the document to be examined in, the implementation of the approved document examination plan; make conclusions and proposals for, or report to a competent agency or person to propose, the handling of examined contents; and report on the examination team’s document examination result to the agency in charge of examination.

Article 117. Examination of documents with state secret contents

The examination of documents with state secret contents must comply with the law on protection of state secrets and relevant laws.

Sub-section 2. COMPETENCE TO HANDLE UNLAWFUL DOCUMENTS

Article 118. The Minister of Justice proposing the Prime Minister to handle unlawful documents

The Minister of Justice shall propose the Prime Minister to decide on:

1. Termination of implementation, annulment of part or whole of:

a/ Unlawful circulars promulgated by ministers and heads of ministerial-level agencies;

b/ Unlawful decisions promulgated by provincial-level People’s Committees and People’s Committees of special administrative-economic units.

2. Termination of implementation of part or whole of:

a/ Unlawful contents on the fields of state management of ministries or ministerial-level agencies of joint circulars promulgated by ministers or heads of ministerial-level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy; concurrently request for ministers or heads of ministerial-level agencies to reach agreement with the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy on joint handling of those documents;

b/ Unlawful resolutions of provincial-level People’s Councils and People’s Councils of special administrative-economic units, and concurrently request for annulment by the Standing Committee of the National Assembly.

Article 119. Competence of ministers and heads of ministerial-level agencies in handling unlawful documents

1. Competence of ministers and heads of ministerial-level agencies:

a/ To propose other ministers or heads of other ministerial-level agencies to terminate the implementation or annul part or whole of the latter’s promulgated unlawful documents related to the sectors or fields under the former’s charge. In case such proposal is not accepted, to propose it to the Prime Minister for decision;

b/ To propose the Prime Minister to decide on the termination of implementation of part or whole of unlawful resolutions of provincial-level People’s Councils and People’s Councils of special administrative-economic units on the sectors or fields under their charge, and concurrently propose annulment by the Standing Committee of the National Assembly;

c/ To propose the Prime Minister to decide on the termination of implementation, annulment of part or whole of unlawful decisions of provincial-level People’s Committees and People’s Committees of special administrative-economic units on the sectors or fields under their charge.

2. Competence of the Minister of Justice:

a/ To exercise the power to handle unlawful documents in accordance with Clause 1 of this Article;

b/ To propose ministers and heads of ministerial-level agencies to terminate the implementation, or annul part or whole of their promulgated unlawful documents. In case such proposal is not accepted, to propose it to the Prime Minister for decision;

c/ To propose the Prime Minister to decide on the termination of implementation of unlawful resolutions of provincial-level People’s Councils and People’s Councils of special administrative-economic units on various sectors or fields of state management;

d/ To propose the Prime Minister to decide on the termination of implementation, annulment of part or whole of unlawful decisions of provincial-level People’s Committees and People’s Committees of special administrative-economic units on various sectors or fields of state management;

dd/ To propose the handling of joint documents with unlawful signs of ministers or heads of ministerial-level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy in accordance with the procedures prescribed in Clause 4, Article 122 of this Decree.

3. Competence of the Minister-Chairperson of the Government Office:

a/ To exercise the power to handle unlawful documents in accordance with Clause 1 of this Article;

b/ To propose the Minister of Justice to terminate the implementation or annul part or whole of unlawful documents of the Minister of Justice. In case such proposal is not accepted, to propose it to the Prime Minister for decision;

c/ To propose the handling of joint circulars with unlawful signs of the Minister of Justice and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy in accordance with Clause 4, Article 122 of this Decree.

Article 120. Competence of chairpersons of provincial- and district-level People’s Committees in handling unlawful documents

1. To terminate the implementation or annul part or whole of unlawful documents of immediate subordinate People’s Committees.

2. To terminate the implementation of unlawful resolutions of immediate subordinate People’s Councils and report such to People’s Committees for proposal to People’s Councils of the same level for annulment.

Sub-section 3. PROCEDURES FOR EXAMINATION AND HANDLING OF UNLAWFUL DOCUMENTS

Article 121. Time for sending documents to examination agencies

Within 3 working days after the date of passing or signing for promulgation a document, an agency or a person competent to promulgate the document shall send the document to an agency or a person competent to examine that document in accordance with the following provisions:

1. Documents of ministers, heads of ministerial-level agencies, provincial-level People’s Councils and People’s Committees, local administrations of special administrative-economic units shall be sent to the Department of Examination of Legal Normative Documents of the Ministry of Justice or legal organizations of ministries and ministerial-level agencies competent to examine the documents based on sectors or fields.

Joint circulars of ministers or heads of ministerial-level agencies and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy jointly promulgated by ministries or ministerial-level agencies shall be sent to the Department of Examination of Legal Normative Documents of the Ministry of Justice.

2. Documents of district-level People’s Councils and People’s Committees shall be sent to provincial-level Justice Departments.

3. Documents of commune-level People’s Councils and People’s Committees shall be sent to Justice Divisions.

Article 122. Procedures conducted by ministers and heads of ministerial-level agencies for examining and handling unlawful documents

1. Procedures conducted by ministers and heads of ministerial-level agencies:

a/ When examining and detecting a document with unlawful signs, the head of the legal organization of a ministry or ministerial-level agency shall report to the minister or head of ministerial-level agency on the examination result and send it to the agency or person having promulgated that document for consideration and handling in accordance with law;

b/ In case the agency or person having promulgated that document fails to handle the document within to the prescribed time limit or the minister or head of ministerial-level agency disagrees with the handling result, the minister or head of ministerial-level agency competent to examine the document shall handle the document in accordance with Article 119 of this Decree.

2. Procedures conducted by the Minister of Justice:

a/ When examining and detecting a document with unlawful signs, the director of the Department of Examination of Legal Normative Documents shall make examination conclusions and send them to the agency or person having promulgated that document for consideration and handling. For contents under the state management of a ministry or ministerial-level agency of a joint circular of that ministry or agency and the Chief Justice of the Supreme People’s Court or the Procurator General of the Supreme People’s Procuracy, the agencies having promulgated the joint circular shall coordinate in considering and handling the document in accordance with regulations;

b/ In case the agency or person having promulgated the unlawful document fails to handle the document or the director of the Department of Examination of Legal Normative Documents disagrees with the handling result, the director of the Department of Examination of Legal Normative Documents shall report such to the Minister of Justice for handling in accordance with Articles 118 and 119 of this Decree.

3. The Minister-Chairperson of the Government Office shall examine and handle unlawful documents promulgated or jointly promulgated by the Minister of Justice in accordance with the procedures prescribed in Clause 1 of this Article.

4. In case of detecting unlawful contents of provisions on the fields of the Supreme People’s Court or the Supreme People’s Procuracy of joint circulars, the Minister of Justice or the Minister-Chairperson of the Government Office (for joint circulars of the Ministry of Justice) shall propose the Supreme People’s Court or the Supreme People’s Procuracy to consider and handle them in accordance with law.

Article 123. Procedures for handing unlawful documents at the proposal of ministers, heads of ministerial-level agencies and chairpersons of provincial-level People’s Committees to the Prime Minister

1. A minister, the head of a ministerial-level agency or the chairperson of a provincial-level People’s Committee who proposes the Prime Minister to handle an unlawful document shall send a proposal dossier to the Ministry of Justice and concurrently to the Government Office.

2. For an unlawful document without different opinions about its constitutionality, lawfulness and handling measures, within 15 days after receiving a proposal, the Minister of Justice shall consider and report it to the Prime Minister for handling in accordance with Article 118 of this Decree.

3. For a document with different opinions about its constitutionality and lawfulness or for which a proposal for reconsideration of the handling decision as prescribed in Clause 5, Article 132 of this Decree is made, within 30 days after receiving a proposal, the Minister of Justice shall assume the prime responsibility for, and coordinate with the Minister-Chairperson of the Government Office, ministers, heads of ministerial-level agencies, heads of government-attached agencies and chairpersons of provincial-level People’s Committees in handling the document in accordance with the following procedures:

a/ The agency or person competent to examine the document reports on the unlawful document to be handled;

b/ The Minister of Justice reports on the constitutionality and lawfulness of the document proposed to be handled and proposes the handling measures;

c/ The agency or person promulgating the document proposed to be handled explains contents related to the document;

d/ Ministers, heads of ministerial-level agencies and chairpersons of provincial-level People’s Committees discuss the constitutionality and lawfulness of the document;

dd/ The Minister of Justice makes conclusions, proposes measures to handle the document and reports to the Prime Minister for consideration and decision.

Article 124. Procedures conducted by chairpersons of provincial- and district-level People’s Committees for examining and handling unlawful documents

1. When examining and detecting a document with unlawful signs, the director of a provincial-level Justice Department or the head of a district-level Justice Division shall make examination conclusions and send them to the agency or person having promulgated that document for consideration and handling in accordance with law.

2. In case the agency or person having promulgated the unlawful document fails to handle the document or the director of the provincial-level Justice Department or the head of the district-level Justice Division disagrees with the handling result, the latter shall report such to the chairperson of the People’s Committee of the same level for handling in accordance with Article 120 of this Decree.

Article 125. Time limit for handling unlawful documents

1. Within 30 days after receiving the conclusion of examination of an unlawful document, the agency or person having promulgated that document shall consider and handle that document and notify the handling result to the document-examining agency.

2. In case the agency or person having promulgated the unlawful document fails to handle the document in accordance with Clause 1 of this Article, or the agency or person competent to examine and handle the document disagrees with the handling result, within 15 days after the handling deadline, the latter shall report such to a competent agency or person for consideration and handling in accordance with regulations.

3. Unlawful resolutions of People’s Councils shall be handled at the nearest sessions of the People’s Councils.

Sub-section 4. EXAMINATION AND HANDLING OF DOCUMENTS WHICH CONTAIN LEGAL NORMS BUT ARE NOT PROMULGATED IN PROPER FORM OR ACCORDING TO PROPER COMPETENCE

Article 126. Documents to be examined

1. The examination of documents prescribed at Point d, Clause 1, Article 103 of this Decree shall be conducted upon receipt of requests or recommendations of agencies, organizations and individuals.

2. Documents to be examined prescribed in Clause 1 of this Article comprise:

a/ Documents promulgated by ministers, heads of ministerial-level agencies, People’s Councils, People’s Committees and local administrations of special administrative-economic units which contain legal norms but do not take the form of circular of minister or head of ministerial-level agency, resolution of People’s Council or decision of People’s Committee;

b/ Documents which contain legal norms or take the form of legal document but are promulgated by agencies or persons that do not have the promulgating competence.

Article 127. Responsibilities for document handling

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of People’s Councils and People’s Committees shall consider and handle the documents prescribed in Clause 2, Article 126 of this Decree when receiving conclusions of competent agencies or persons.

Article 128. Competence and procedures for examination and handling

1. Competence to examine and handle documents:

a/ The Minister of Justice shall examine and handle the documents prescribed at Point a, Clause 2, Article 126 of this Decree and documents containing legal norms or taking the form of legal document which are promulgated by heads of government-attached agencies, chairpersons of provincial-level People’s Committees, chairpersons of People’s Committees of special administrative-economic units, heads of units of ministries, ministerial-level agencies and government-attached agencies, specialized agencies of provincial-level People’s Committees, and specialized agencies of People’s Committees of special administrative-economic units. The director of the Department of Examination of Legal Normative Documents shall assist the Minister in examining and handling documents in accordance with this Point;

b/ The Minister-Chairperson of the Government Office shall examine and handle the documents prescribed in Clause 2, Article 126 of this Decree which are promulgated by the Minister of Justice or heads of units of the Ministry of Justice;

c/ Directors of provincial-level Justice Departments shall examine and handle documents promulgated by district-level People’s Councils or People’s Committees which contain legal norms but do not take the form of resolution of People’s Council or decision of People’s Committee; and documents containing legal norms or taking the form of legal document which are promulgated by chairpersons of district-level People’s Committees and heads of specialized agencies of district-level People’s Committees;

d/ Heads of district-level Justice Divisions shall examine and handle documents promulgated by commune-level People’s Councils or People’s Committees which contain legal norms but do not take the form of resolution of People’s Council or decision of People’s Committee; and documents containing legal norms which are promulgated by chairpersons of commune-level People’s Committees or holders of other titles at the commune level.

2. The procedures for examining and handling unlawful documents prescribed in Clause 1 of this Article must comply with Clauses 2 and 3, Article 122, Article 124, and Clause 1, Article 129 of this Decree.

3. The examination and handling of documents containing legal norms or taking the form of legal document which are promulgated by heads of agencies and units of ministries, ministerial-level agencies and government-attached agencies organized at the provincial, district and special administrative-economic unit levels shall be conducted as follows:

a/ The examination and handling of documents which are promulgated by heads of agencies and units of ministries, ministerial-level agencies and government-attached agencies organized at the provincial, district and special administrative-economic unit levels must comply with Points a and b, Clause 1 of this Article. In case the person having promulgated a document fails to examine and handle it himself/ herself, a person competent to examine the document shall report and propose the minister or head of ministerial-level agency to handle the document according to competence;

b/ The examination and handling of documents promulgated by heads of agencies and units of ministries, ministerial-level agencies and government-attached agencies organized at the district level must comply with Point a, Clause 1 of this Article. In case the person having promulgated a document fails to examine and handle it himself/ herself, a person competent to examine the document shall propose the superior managing agency of that agency to consider and handle the document.

4. Documents promulgated by chairpersons of People’s Councils, standing bodies of People’s Councils and agencies of People’s Councils, which contain legal norms or take the form of legal documents shall be examined and handled as documents of People’s Councils of the same level.

Sub-section 5. HANDLING OF UNLAWFUL DOCUMENTS

Article 129. Conclusions on examination of unlawful documents

1. An agency competent to examine a document shall send the examination conclusion to a minister, the head of a ministerial-level agency or government-attached agency, or the chairperson of a People’s Council or People’s Committee having the examined document for directing and organizing the handling of the document in accordance with regulations. The examination conclusion shall be concurrently sent to the agency or person having promulgated the unlawful document and the legal organization of the ministry or ministerial-level agency or the provincial-level Justice Department, the district-level Justice Division, the agency assigned by the People’s Committee of the special administrative-economic unit to act as the focal point or the commune-level judiciary-civil status officer of the locality which has the examined document.

2. The examination conclusion must contain the following basic contents: title of the examined document; titles and contents of documents serving as the legal bases for determining unlawful contents of the examined document; opinions about unlawful contents of the examined document; request for the agency or person having promulgated the document to consider and handle the document and notify the handling result, and concurrently proposal for consideration and handling of responsibilities of agencies and persons having advised the formulation and promulgation of the unlawful document.

3. When detecting the examined document contains unlawful contents, contents inconsistent or overlapping with a document of higher legal effect which is promulgated after the examined document, or contents which are unreasonable, unenforceable or unsuitable with the socio-economic situation; or part or whole of a document serving as the basis for promulgating the examined document is replaced, amended, supplemented, annulled, terminated from implementation or ceases to be effective with another document of a competent state agency, consequently making the document’s contents no longer conformable with the current law, in the examination conclusion, the document-examining agency shall propose the document-promulgating agency to review and handle the document in accordance with Chapter IX of this Decree.

Article 130. Forms of handling unlawful documents and documents with errors in promulgation bases, formats and techniques

1. To terminate the implementation of part or whole of a document in case its unlawful contents harm the interests of the State, or lawful rights and interests of organizations or individuals if it is not annulled promptly.

2. To annul part or whole of a document in the following cases:

a/ Part or whole of the document is promulgated unlawfully regarding promulgation competence or content; the document seriously violates the order and procedures for formulation and promulgation:

b/ The document is prescribed at Point d, Clause 1, Article 103 of this Decree.

3. A document shall be corrected when it has errors in promulgation bases or presentation formats or techniques. The agency or person having promulgated a document shall correct that document in an administrative document. Documents of People’s Councils shall be corrected by their standing bodies.

Section 4. TASKS AND RIGHTS OF AGENCIES AND PERSONS Promulgating examined DOCUMENTS

Article 131. Tasks of the agency or person promulgating an examined document

1. To send the document to an agency or a person competent to examine that document in accordance with regulations; to provide necessary information and documents for the agency or person competent to examine the document.

2. To send for publication in “CONG BAO”, and post up, the handled document in accordance with law.

3. To explain contents of the document at the request of the agency or person competent to examine the document.

4. To conduct self-examination to promptly detect and handle the document with unlawful signs in accordance with Clause 1, Article 111, and Article 112 of this Decree.

5. To notify the result of handling the unlawful document to the agency or person competent to examine the document.

6. To create conditions for the competent agency or person to examine the document.

7. To implement decisions and requests of the Prime Minister in accordance with Article 118 of this Decree.

8. To implement decisions and proposals of ministers and heads of ministerial-level agencies in accordance with Article 119 of this Decree; resolutions of provincial- and district- level People’s Councils and decisions of chairpersons of provincial- and district-level People’s Committees in accordance with Article 120 of this Decree.

Article 132. Rights of the agency or person having an examined document

1. To be notified of the examination plan and contents and requested contents.

2. To give opinions related to the examined document’s contents.

3. To refuse to reply and provide information outside its/ his/ her functions, tasks and powers or information of state secrets the provision of which is not permitted as prescribed by law.

4. To make explanations and propose a minister, the head of a ministerial-level agency or the chairperson of a provincial- or district-level People’s Committee competent to examine and handle the document to reconsider the conclusion on examination and handling of the unlawful document.

5. In case the agency or person competent to examine and handle the document still decides to handle the document in accordance with Articles 119 and 120 of this Decree, to propose that agency or person to reconsider its/ his/ her handling decision. Within 15 days after receiving a proposal for reconsideration of the handling decision, if the agency or person competent to handle the document fails to give a reply, to report such to the Prime Minister in case the agency or person having handled the document is a minister, the head of a ministerial-level agency, a provincial-level People’s Council or the chairperson of a provincial-level People’s Committee, or to the chairperson of a provincial-level People’s Committee in case the agency or person having handled the document is a district-level People’s Council or the chairperson of a district-level People’s Committee.

When exercising the rights prescribed in Clauses 4 and 5 of this Article, the agency or person having the examined document needs to prove the lawful promulgation of its/ his/ her document and shall take responsibility before its/ his/ her superiors and law for the truthfulness of its/ his/ her report or proposal.

Article 133. Violations of agencies or persons having documents examined in the examination and handling of documents

1. Failing to send documents under regulations; failing to provide necessary information or materials to the agency or person with document-examining competence.

2. Failing to publish in Cong Bao or publicly display the handled legal documents in accordance with law.

3. Failing to organize self-examination in order to detect and handle unlawful documents they have promulgated.

4. Failing to handle documents as requested or proposed by the agency or person with document-examining competence or by other agencies, organizations or individuals or mass media agencies.

5. Obstructing or causing difficulties to the agency or person with document-examining competence in the course of examination of documents.

6. Making an untruthful report when exercising the rights prescribed in Clauses 4 and 5, Article 132 of this Decree.

7. Failing to comply with a decision of an agency competent to handle documents they promulgate.

8. Other violations in the course of examination and handling of documents.

Depending on the nature and severity of their violations in the examination and handling of documents, agencies or persons having documents examined shall be handled in accordance with law.

Article 134. Consideration and determination of responsibilities of agencies or persons promulgating unlawful documents

1. The consideration and determination of responsibilities of an agency or a person that has promulgated an unlawful document shall be based on the contents, nature and level of unlawfulness of such document and consequences caused by its unlawful contents to the society, and on the nature and severity of the violation of the agency or person that has promulgated, or advised on the promulgation of, such document.

2. The consideration of collective or individual responsibility is prescribed as follows:

a/ The agency that has promulgated a document containing unlawful contents shall review and determine the responsibility of its collective and report such to a competent superior agency for consideration and decision in accordance with law and, at the same time, consideration of the responsibility of its head in the promulgation of such document;

b/ Cadres or civil servants who have advised on the drafting, appraisal, verification or promulgation of a document containing unlawful contents shall, depending on the nature and severity of their fault and on the unlawful contents of such document, be held responsible in accordance with the law on cadres and civil servants.

Procedures for disciplining cadres and civil servants must comply with the law on cadres and civil servants.

3. After receiving a conclusion of an examination or a proposal from the document- examining agency, if the agency or person that has promulgated an unlawful document fails to consider and handle the document in question or fails to notify the result of handling such document under regulations, it/ He/she shall be handled in accordance with the law on cadres and civil servants.

Section 5. REPORTING REGIME, URGING, DIRECTION AND INSPECTION OF THE EXAMINATION AND HANDLING OF DOCUMENTS

Article 135. Reporting regime

1. The annual reporting on the examination and handling of documents by ministries, ministerial-level agencies, government-attached agencies, People’s Committees at all levels, or by local administrations in special administrative-economic units is prescribed as follows:

a/ The Bureau of Legal Documents Post-Review of the Ministry of Justice, the legal organization of a ministry, a ministerial-level agency or a government-attached agency, a provincial-level Justice Department, a district-level Justice Division, or an agency assigned by a People’s Committee in a special administrative-economic unit shall prepare annual reports on the examination and handling of documents and submit them to its minister, the head of its ministerial-level agency, head of its government-attached agency or the chairperson of the provincial- or district-level People’s Committee or of the People’s Committee of the special administrative-economic unit;

b/ Annual reports on the examination and handling of documents of a ministry, ministerial- level agency, government-attached agency, provincial-level People’s Committee, or local administration in a special administrative-economic unit shall be sent to the Ministry of Justice. Annual reports on the examination and handling of documents of a district- or commune-level People’s Committee shall be sent to the provincial- or district-level People’s Committee and concurrently to the provincial-level Justice Department or district-level Justice Division for summarization and reporting to its People’s Committee;

c/ The time limit for sending, and the time of collecting data for, annual reports on the examination and handling of documents must comply with the justice sector’s statistical and reporting regulations.

2. Annually, the Ministry of Justice shall summarize the reports on the examination and handling of documents of ministries, ministerial-level agencies, government-attached agencies, provincial-level People’s Committees, and local administrations in special administrative- economic units prescribed in Clause 1 of this Article, and submit a summarization report to the Minister of Justice for consideration and reporting to the Prime Minister.

3. An annual report on the examination and handling of documents must have the following principal contents:

a/ Data on documents promulgated and already self-examined and handled by the ministry, sector or locality; documents sent for examination and documents actually examined; unlawful contents detected and requested to be considered and handled by the agency or person competent to promulgate documents; documents already handled at the request of the document-examining agency or handled according to competence.

A government-attached agency shall report on its coordination with legal organizations of ministries or ministerial-level agencies in the self-examination and examination of documents in the field under its management according to its competence;

b/ The situation of the review of documents used as a legal basis for the examination of documents in the assigned field;

c/ Assessments of the examination and handling of documents; organization and personnel; funds for the examination of documents; training and retraining in the examination of documents, and other conditions to ensure the examination of documents;

d/ Difficulties, problems and proposals;

dd/ A list of unlawful documents in terms of competence and content.

Article 136. Urging, direction and inspection of the examination and handling of documents

1. Urging, direction and inspection of the examination and handling of documents shall be conducted in a regular and prompt manner.

2. The Bureau of Legal Documents Post-Review of the Ministry of Justice shall assist the Minister of Justice in urging, directing and inspecting the examination and handling of documents by ministries, sectors and localities.

3. Legal organizations of ministries, ministerial-level agencies or government-attached agencies, provincial-level Justice Departments, district-level Justice Divisions, or agencies assigned by People’s Committees in special administrative-economic units shall assist their ministers, heads of their ministerial-level agencies, heads of their government-attached agencies, or chairpersons of their provincial- or district-level People’s Committees or People’s Committees of their special administrative-economic units in urging and directing the examination and handling of documents in their ministries, sectors or localities.

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