Pháp lệnh 09/2014/UBTVQH13

Ordinance No. 09/2014/UBTVQH13 dated January 20, 2014, on the order of, and procedures for, considering and deciding on the application of administrative-handling measures at People’s Courts

Nội dung toàn văn Ordinance No. 09/2014/UBTVQH13 application of administrative-handling measures at People’s Courts


THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 09/2014/UBTVQH13

Hanoi, January 20, 2014

 

ORDINANCE

ON THE ORDER OF, AND PROCEDURES FOR, CONSIDERING AND DECIDING ON THE APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES AT PEOPLE’S COURTS (*)

Pursuant to the Constitution of the Socialist Republic of Vietnam;

Pursuant to Law No.15/2012/QH13 on Handling of Administrative Violations;

The National Assembly Standing Committee promulgates the Ordinance on order of, and procedures for, considering and deciding on the application of administrative-handling measures at People's Courts,

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Ordinance prescribes the order of, and procedures for, considering and deciding on the application of administrative-handing measures of sending to reformatories, compulsory education establishments or compulsory detoxication establishments, at People’s Courts (below referred collectively to as administrative-handling measures); the order of, and procedures for, considering and deciding on postponement of or exemption from serving, term reduction, suspension or exemption from serving the remaining duration of application of, administrative-handling measures; complaints, petitions, protests; settlement of complaints, petitions and protests in the application of administrative-handling measures.

Article 2. Principles of considering and deciding on the application of administrative-handling measures

1. The consideration of, and decision on, application of administrative-handling measures must comply with Clause 2 of Article 3 and Clause 2 of Article 5 of the Law on Handling of Administrative Violations; the consideration of, and decision on, application of administrative-handling measures to minors must also comply with Clauses 1, 2 and 4 of Article 134 of the Law on Handling of Administrative Violations.

2. The consideration of, and decision on, application of administrative-handling measures shall be implemented by a single judge.

3. When considering and deciding on application of administrative-handling measures, judges are independent and only abide by law.

4. To ensure the impartiality of persons conducting sessions.

5. The spoken and written language used in the consideration of, and decision on, application of administrative-handling measures at courts is Vietnamese.

Persons subject to the proposed application of administrative-handling measures (below referred to as subject persons) or their lawful representatives, parents or guardians of subject persons being minors may use the languages and scripts of their own ethnicities but with interpreters.

6. Subject persons being minors or their parents or guardians may defend themselves or invite lawyers or other persons to defend their lawful rights and interests.

In case subject persons being minors have no defenders of their lawful rights and interests, courts shall request bar associations to assign lawyers ’ offices to nominate persons to defend their lawful rights and interests.

Courts shall guarantee the right to defend the lawful rights and interests of subject persons.

7. To ensure the subject persons’ right to explain before courts and argue with agencies proposing the application of administrative-handling measures.

8. To ensure the right to two-tier review in the application of administrative-handling measures.

Article 3. Competence to consider and apply administrative-handling measures

1. Courts competent to consider and decide on the application of administrative-handing measures are district-level People’s Courts of localities where the proposing agencies are headquartered.

2. Provincial-level People’s Courts are competent to review the complained, petitioned or protested decisions of district-level People’s Courts.

Article 4. Supervision of the consideration of, and decision on, application of administrative-handling measures

1. People’s Procuracies shall supervise the observance of law by courts in considering and deciding on the application of administrative-handling measures, and exercise the right to request, petition and protest, aiming to ensure the timely and lawful settlement.

2. People’s Procuracies shall participate in sessions; participate in the consideration of postponement, exemption from, reduction or suspension of the serving of decisions on application of administrative-handling measures in accordance with this Ordinance.

3. After receiving the dossier acceptance notices of the courts of the same level, the People’s Procuracies may study the case files at the courts that have accepted such cases for handling.

Article 5. Responsibilities of individuals, agencies and organizations in considering and deciding on the application of administrative-handling measures

1. Individuals, agencies and organizations may not intervene in violation of law in the courts’ consideration of, and decision on, application of administrative-handling measures.

2. Within the ambit of their respective tasks and powers, individuals, agencies and organizations shall coordinate with courts in considering and deciding on the application of administrative-handling measures, when so requested by courts.

3. Legally effective decisions of courts must be executed and respected by individuals, agencies and organizations. The concerned individuals, agencies and organizations shall comply with decisions of courts and take responsibility before law for their compliance.

Article 6. Responsibility to manage the consideration of, and decision on, application of administrative-handling measures

Within the ambit of its functions, tasks and powers, the Supreme People’s Court shall manage the consideration of, and decision on, application of administrative-handling measures by courts, having the following tasks and powers:

1. To assume the prime responsibility for, and coordinate in, proposing the promulgation of, and submit to competent agencies for promulgation, legal documents on consideration of, and decision on, application of administrative-handling measures;

2. To organize the making of statistics on, to establish and manage the database on consideration of, and decision on, application of administrative-handling measures;

3. To assume the prime responsibility for, and coordinate in, guiding, training in and fostering skills in the implementation of the law on consideration of, and decision on, the application of administrative-handling measures;

4. To inspect the observance of the law on handling of administrative violations in the consideration of, and decision on, the application of administrative-handling measures by courts;

5. To provide information on handling of administrative violations for competent agencies as prescribed in Clause 4, Article 17 of the Law on Handling of Administrative Violations.

Chapter II

ORDER OF, PROCEDURES FOR, CONSIDERING AND DECIDING ON APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES

Article 7. Time limit for consideration of, and decision on, application of administrative-handling measures

Within 15 days after accepting a written proposal of a competent agency, a court shall issue one of the decisions prescribed at Point h, Clause 2, Article 20 of this Ordinance; for complicated cases, this time limit can be prolonged, but must not exceed 30 days.

Article 8. Receipt and acceptance for handling of dossiers proposing the application of administrative-handling measures

1. Upon receipt of a dossier sent by a competent agency, a court shall record in the delivery-receipt register; where the dossier lacks documents prescribed in Clause 2 of Article 100, Clause 2 of Article 102 or Clause+ 2 of Article 104 of the Law on Handling of Administrative Violations, the court shall return the dossier and clearly state the reason.

2. Within one working day after the receipt of a dossier, the court shall process and assign a judge to consider and settle it.

Article 9. Nomination of judges to consider and decide on the application of administrative-handling measures

1. Within the time limit prescribed in Clause 2, Article 8 of this Ordinance, the chief justice of the court shall assign a judge to consider and decide on the application of administrative-handling measures. For the consideration of, and decision on, application of measure of sending the subject person to a reformatory, the assigned judge must have necessary knowledge about psychology and educational science and activities of preventing minors ’ violations of law.

2. The assigned judge is obliged to refuse the consideration and decision if he/she has clear grounds to believe that he/she may not be impartial in the performance of tasks.

3. If the assigned judge cannot continue performing his/her tasks or refuses the consideration and decision, the chief justice of the court shall assign another judge to consider and decide on the application of administrative-handling measures.

Article 10. Cases of refusal or change of judges or clerks of sessions

1. They are relatives of the subject persons.

2. They have already considered and decided on the application of administrative- handling measures in the same case.

3. They have already settled complaints, petitions or protests against the decision on application of administrative-handling measures in that same case.

4. There are clear grounds to believe that they may not be impartial in the performance of their tasks.

Article 11. Notification of case acceptance

1. Within 2 working days after accepting a case, the court shall notify in writing the acceptance to the proposing agency and the subject person or the lawful representative, parents or guardian of the subject person who is a minor, and the Procuracy of the same level.

2. A written notification must contain the following principal contents:

a/ Date of its making;

b/ The name of the court that has accepted the dossier;

c/ The serial number and date of acceptance of the dossier;

d/ The name of the proposing agency;

dd/ The full name of the subject person;

e/ The proposed administrative-handling measure to be applied.

Article 12. Examination of dossiers of proposal on the application of administrative- handling measures

1. The assigned judge shall examine the dossier in terms of the following contents:

a/ Documents in the proposal dossier, as prescribed in Clause 2 of Article 100, Clause 2 of Article 102 or Clause 2 of Article 104 of the Law on Handling of Administrative Violations;

b/ The statute of limitations for application of administrative-handling measures as prescribed in Clause 2, Article 6 of the Law on Handling of Administrative Violations;

c/ The competence, order and procedures for compilation of the dossier.

2. In case of necessity, the judge may consult medical, psychological, educational and sociological experts and representative of the commune-level People’s Committee of the locality where the subject person resides in order to clarify his/her health, psychological, living and educational conditions.

3. Within 3 working days after being assigned, the judge shall base himself/herself on the result of examination of the dossier to make one of the following decisions:

a/ To request supplementation of documents and evidence;

b/ To adjourn or suspend the consideration of, and decision on, application of administrative-handling measures;

c/ To open a session to consider and decide on the application of administrative- handling measures.

Article 13. Subject persons’ right to provide documents and evidence

1. From the date of receiving the acceptance notice to the time the court opens a session, the subject person or the parents or guardian of the subject person who is a minor, the defender of the lawful rights and interests of the subject person have the right to provide documents and evidence for the court that has accepted the cases.

2. The supply of documents and evidence may be made at the court or by post.

Article 14. Request to supplement documents and evidence

1. The judge may request the proposing agency to supplement documents and evidence in the following cases:

a/ Documents proving the subject person’s violation, documents on the subject person’s personal status and health conditions are unclear or contradictory and cannot be supplemented or clarified at a session;

b/ Upon detection of a serious violation of the order of, and procedures for, proposing the consideration of, and decision on, the application of administrative-handling measures.

2. The written request must clearly state the documents and evidence to be supplemented and the reason for the supplementation.

3. Within 2 working days after receiving the request, the requested agencies shall send the supplemented documents and evidence to the court.

4. Within 1 working day after receiving the supplemented documents and evidence or after the expiration of the time limit prescribed in Clause 3 of this Article, if the requested agency fails to supplement the documents and evidence, the judge shall issue a decision to open a session to consider and decide on the application of administrative-handling measures.

Article 15. Adjournment or suspension of the consideration of, and decision on, application of administrative-handling measures

1. The judge shall decide to adjourn the consideration of, and decision on, application of administrative-handling measures when there is one of the following grounds:

a/ The statute of limitations for application of administrative-handling measures expires;

b/ The subject person dies;

c/ The subject person is not liable to the application of administrative-handling measures prescribed in Clauses 1, 2, 3 and 4 of Article 92, Clause 1 of Article 94 or Clause 1 of Article 96 of the Law on Handling of Administrative Violations;

d/ The subject person falls within the cases prescribed in Clause 5 of Article 92, Clause 2 of Article 94 or Clause 2 of Article 96 of the Law on Handling of Administrative Violations;

dd/ The proposing agency withdraws its proposal;

e/ The subject person has been handed down a criminal judgment or decision by the court, which has taken legal effect, for the acts proposed for application of administrative- handling measures;

g/ The subject person is serving his/her prison term, is expected to serve his/her imprisonment or death penalty under a legally effective judgment or decision of a court.

2. The judge shall issue a decision to suspend the consideration of, and decision on, the application of administrative-handling measures when there is one of the following grounds:

a/ The subject person’ act shows criminal signs and the court must transfer the dossier to the agency competent to carry out the criminal procedures for consideration or the subject person is being examined for penal liability for such act;

b/ There arise new circumstances on the health or mental conditions of the subject person, which prompt the proposing agency to solicit inspection;

c/ The subject person is suffering a dangerous disease as certified by a hospital of the district or higher level.

Article 16. Decisions to open sessions to consider and decide on application of administrative-handling measures

1. Within 7 working days after issuing a decision to open a session, the court shall open the session to consider and decide on the application of administrative-handling measures.

2. A session-opening decision must contain the following principal contents:

a/ The full name, date of birth, occupation and residence of the subject person;

b/ The parents or guardian of the subject person who is a minor;

c/ The name of the proposing agency;

d/ The proposed administrative-handling measure to be applied;

dd/ The date and site of opening the session;

e/ The full names of the judge and clerk at the session;

g/ The full name of the defender of the lawful rights and interests of the subject person;

h/ The full name of the interpreter;

i/ The full names of other persons requested to participate in the session.

3. At least 3 working days before a session is opened, the session-opening decision must be sent to the persons prescribed at Points a, b, c, g, h and i, Clause 2 of this Article and the Procuracy of the same level.

Article 17. Participants in a session

1. Persons conducting a session include the judge and clerk.

2. Participants in the session include a representative of the proposing agency, the procurator, the subject person or his/her lawful representative, or the parents or guardian of the subject person who is a minor, and the defender of the lawful rights and interests of the subject person.

3. If necessary, the court may request a representative of the district-level Labor, War Invalids and Social Affairs agency, the surveyor, the interpreter, medical, educational and psychological specialists, a representative of the school where the subject person being a minor studies, a representative of the commune-level People’s Committee of the locality where the subject person resides or other persons to participate in the session to present their opinions on related matters.

Article 18. Rights and obligations of session participants

1. To request change of session-conducting persons.

2. To know, read, take notes of, duplicate and see documents in the proposal dossier.

3. To provide documents and evidence, to explain and argue at the session in accordance with this Ordinance.

4. To authorize in writing lawyers or other persons to participate in the session on their behalf, if they are subject persons.

5. To receive decisions of the court.

6. To lodge complaints in accordance with this Ordinance.

7. To be present at the session at the request of the court.

8. To respect the court, to abide by the regulations of sessions.

9. To abide by decisions of the court which have taken legal effect.

10. Other rights and obligations as prescribed by law.

Article 19. Participation in sessions to consider and decide on the application of administrative-handling measures

1. The participants in a session prescribed in Clause 2, Article 17 of this Ordinance must be present at the session; if the representative of the proposing agency or procurator is absent, the session must be postponed.

2. If the subject person or his/her lawful representative, the parents or guardian of the subject person being a minor, or the defender of the lawful rights and interests of the subject person is/are absent for plausible reasons, the court may postpone the session; if they are absent without plausible reasons or request permission for their absence, the court shall still conduct the session.

3. If the interpreter is absent, who cannot be replaced immediately by the court, the session must be postponed.

4. The postponement duration must not exceed 5 working days after the issuance of a postponement notice. The court shall notify the postponement to the session participants prescribed in Clause 1 of this Article and clearly state the postponement reason and the time for re-opening the session.

For persons absent at the session, the court shall notify them in writing.

Article 20. Order of, procedures for, conducting sessions to consider and decide on application of administrative-handling measures

1. Before a session is opened, the session clerk shall perform the following tasks:

a/ To announce the internal regulations of the session;

b/ To check the presence of persons requested by the court to attend the session; if anyone is absent, to clarify the reason and report it to the judge for consideration of whether to continue with, or postpone, the session.

2. The session procedures are as follows:

a/ The judge announces to open the session;

b/ The judge explains the rights and obligations of the participants in the session. If there is a request to change the judge, the judge shall consider it; if there are grounds, he/she shall adjourn the session and report it to the chief justice of the court for consideration and decision. If the judge must be changed while another judge is not available for replacement, the session must be postponed. The postponement of the session must comply with Clause 4, Article 19 of this Ordinance;

c/ The representative of the proposing agency presents the contents of the proposal for consideration of, and decision on, the application of administrative-handling measures;

d/ The subject person or his/her lawful representative, the parents or guardian of the subject person being a minor presents their opinions on the contents of the proposal of the proposing agency;

dd/ The participants present their opinions on conditions for application of administrative-handling measures, the personal status of the subject person; the aggravating and extenuating circumstances; the educational forms and measures already applied; propose or do not propose the application of administrative-handling measures; the time for application of administrative-handling measures;

e/ The representative of the proposing agency, the parents or guardian of the subject person being a minor, the defender of the lawful rights and interests of the subject person discuss the application of administrative-handling measures;

g/ The procurator presents his/her opinion on the observance of law in the consideration of, and decision on, application of administrative-handling measures;

h/ The judge announces the decision to apply or not apply the administrative- handling measure or to adjourn or suspend the consideration of, and decision on, the application of administrative-handling measures in the cases prescribed in Article 15 of this Ordinance.

Article 21. Minutes of sessions

The minutes of a session to consider and decide on the application of administrative- handling measures must clearly specify the date and location of the session; participants in the session; session proceedings and development; decision of the judge.

After the conclusion of a session, the judge shall examine the minutes and sign it together with the clerk. The procurator, the subject person or his/her lawful representative, the parents or guardian of the subject person being a minor, the defender of the lawful rights and interests of the subject person and representative of the proposing agency may read the minutes, request recording of modifications and supplements in the minutes and sign for certification.

Article 22. Contents of decisions to apply or not to apply administrative-handling measures and other decisions

1. The decisions of a court prescribed at Point h, Clause 2, Article 20 of this Ordinance must each contain the following principal details:

a/ Its serial number and date of issuance;

b/ Name of the decision-issuing court;

c/ Full names of the judge and clerk of the session;

d/ Full name of the procurator participating in the session;

dd/ Full name of the representative of the proposing agency;

e/ Full name, birth date, residence place, occupation and educational level of the subject person; names and addresses of the representative and defender of the lawful rights and interests of the subject person;

g/ The specific administrative-handling measure proposed for application;

h/ The reason and grounds for issuance of the decision;

i/ The decision on the application or non-application of administrative-handling measures, the termination or suspension of the consideration of, and decision on, the application of administrative-handling measures.

The decision on application of administrative-handling measures must clearly state the measure to be applied and time of application. If the subject person is held in custody, the custody time shall be subtracted from the time of application of the administrative- handling measure;

k/ Responsibilities of individuals, agencies and organizations that execute the decision;

l/ The right to complaint about the decision;

m/ Effect of the decision;

n/ Decision recipients.

Article 23. Effect of court decisions

1. Decisions on application or non-application of administrative-handling measures and decisions on termination or suspension of application of administrative-handling measures take effect after the time limit prescribed in Article 31 of this Ordinance expires without complaints, petitions or protests.

2. Court decisions, excluding the decisions prescribed in Clause 1 of this Article, take effect on the date of their issuance

Article 24. Sending of court decisions

1. Within 2 working days after the decision on application or non-application of administrative-handling measures is announced, the court shall send the decision to the persons prescribed in Article 107 of the Law on Handling of Administrative Violations and the Procuracy of the same level.

2. Within 2 working days after the decision on termination or suspension of the consideration of, and decision on, application of administrative-handling measures is announced, the court shall send the decision to the proposing agency, the subject person, concerned persons and the Procuracy of the same level.

Article 25. Management of dossiers on consideration and application of administrative- handling measures

Materials and documents issued by courts in the process of considering and applying administrative-handling measures must be compiled in dossiers, which are numbered and archived in accordance with law.

Chapter III

ORDER OF AND PROCEDURES FOR, CONSIDERING AND DECIDING ON THE POSTPONEMENT OF, OR EXEMPTION FROM SERVING, REDUCTION OF SERVING DURATION, SUSPENSION OF OR EXEMPTION FROM SERVING OF THE REMAINING DURATION OF APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES

Article 26. Receipt and acceptance for handling of dossiers of proposal on postponement of, or exemption from, the application of administrative-handling measures

1. The sending of appeals for postponement of, or exemption from, serving of decisions on application of administrative-handling measures must comply with the law on handling of administrative violations.

2. Within 2 working days after receiving a dossier enclosed with the appeal, the court shall accept it for handling and assign a judge to consider and settle it and concuưently notify the proposing agency and the Procuracy of the same level thereof.

3. Within 3 working days after being assigned, the judge shall consider and issue a decision; in case of necessity, the proposing agency and the Procuracy of the same level shall give their written opinions before the court issues a decision.

4. After examining the dossier enclosed with the appeal for postponement ofj or exemption from, serving of the decision on application of administrative-handling measures, the judge shall issue one of the following decisions:

a/ To accept the appeal;

b/ To reject the appeal.

5. The decision on postponement of, or exemption from, serving of the decision on application of administrative-handling measures must contain the following principal details:

a/ Serial number and date of issuance;

b/ Name of the decision-issuing court;

c/ Full name of the judge;

d/ Full name of the appellant;

dd/ Name of the proposing agency;

e/ Grounds and reason for issuance of the decision;

g/ Full name, birth date, residence place, occupation and educational level of the person requesting the postponement of, or exemption from, serving of the decision on application of administrative-handling measures;

h/ Contents of the postponement of, or exemption from, serving of the decision on application of administrative-handling measures;

i/ Responsibilities of individuals, agencies and organizations that execute the decision;

k/ Effect of the decision;

l/ Decision recipients.

6. Within 2 working days after being issued, decisions on postponement of, or exemption from, serving of administrative-handling measures take effect after the expiry of the complaint, petition or protest time limit prescribed in Article 31 of this Ordinance and must be sent to the persons prescribed in Clause 3, Article 111 of the Law on Handling of Administrative Violations and the Procuracy of the same level.

Article 27. Reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures

1. If a person currently serving an administrative-handling measure falls into a case prescribed in Clauses 1 and 2, Article 112 of the Law on Handling of Administrative Violations, he/she is entitled to reduction of the duration, suspension of, or exemption from, serving of the remaining duration of, application of the administrative-handling measure as decided by the court based on the proposal of the director of the reformatory, compulsory education establishment, or compulsory detoxication establishment.

2. For the case of reducing the duration of serving an administrative-handling measure, the subject person to be considered for reduction must have served half of the duration decided by a court and he/she shall be considered for reduction only once a year with the reduction time equal to at most a quarter of the duration decided by the court.

3. Directors of reformatories, compulsory education establishments or compulsory detoxication establishments shall send written proposals to the courts of the localities where the reformatories, compulsory education establishments or compulsory detoxication establishments are located, together with documents proving that the persons who are serving the administrative-handling measures, fall into one of the cases prescribed in Clauses 1 and 2 of Article 112 of the Law on Handling of Administrative Violations. Such documents include:

a/ Copy of the decision on application of administrative-handling measures;

b/ Commendation decision or written certification of a competent agency, for the case where the person serving the administrative-handling measure has made marked progress or recorded an exploit;

c/ Written certification of a hospital of the district or higher level of the sickness, for the case where the person serving the administrative-handling measure suffers a serious sickness or a dangerous disease;

d/ Written certification of a hospital, for the case where the person serving the administrative-handling measure is pregnant;

dd/ Written proposal of the director of the reformatory, compulsory education establishment or compulsory detoxication establishment.

Within 2 working days after receiving a dossier of proposal on reduction of the duration of, suspension of, or exemption from serving the remaining duration of, application of administrative-handling measures, the court shall process the case and assign a judge to consider and settle it, and concurrently notify the Procuracy of the same level thereof.

Within 3 working days after being assigned, the judge shall consider and issue a decision; if necessary, the proposing agency and the Procuracy of the same level may give their written opinions before the court issues a decision.

4. After examining the dossier of proposal, the judge shall issue one of the following decisions:

a/ To approve the proposal;

b/ To disapprove the proposal.

5. The decision on reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures must contain the following principal details:

a/ Serial number and date of issuance of the decision;

b/ Name of the decision-issuing court;

c/ Reason and grounds for issuance of the decision;

d/ Full name, birth date, residence place, occupation and educational level of the person serving the administrative-handling measures;

dd/ Name of the proposing agency;

e/ Contents of the reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures;

g/ Responsibilities of agencies, organizations and individuals that execute the decision;

h/ The right to complaint about the decision;

i/ Effect of the decision;

k/ Decision recipients.

6. Within 2 working days after being issued, the decision on reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures takes effect after the expiry of the complaint, petition or protest time limit prescribed in Clause 1, Article 31 of this Ordinance and must be sent to the persons prescribed in Clause 3, Article 112 of the Law on Handling of Administrative Violations, and the Procuracy of the same level.

Article 28. Cancellation of decisions on postponement or suspension of serving of decisions on application of administrative-handling measures

1. When the conditions for postponement of serving of an administrative-handling measure no longer exist or the person entitled to the postponement or suspension falls into one of the cases prescribed in Clause 2, Article 113 of the Law on Handling of Administrative Violations, the commune-level People’s Committee of the locality where the person eligible for postponement or suspension of serving of an administrative- handling measure shall send a written notification to the court that has issued the decision.

2. Within 3 working days after receiving a written notification of the commune-level People’s Committee, the court shall consider and cancel the postponement or suspension decision and compel the person who is enjoying the postponement or suspension to serve the decision on application of administrative-handling measures.

3. The decision on compulsory serving of the decision on application of administrative- handling measures takes effect immediately and, within 2 working days after being issued, shall be sent to persons concerned prescribed in Clause 3, Article 113 of the Law on Handling of Administrative Violations and the Procuracy of the same level.

4. A decision on compulsory serving of the decision on application of administrative- handling measures must contain the following principal details:

a/ Serial number and date of issuance of the decision;

b/ Name of the decision-issuing court;

c/ Reasons and grounds for issuance of the decision;

d/ Full name, birth date, residence place, occupation and educational level of the person being subject to the application of administrative-handling measures;

dd/ Contents of the cancellation of the postponement or suspension decision and the decision to compel the person who is enjoying the postponement or suspension to serve the decision on application of administrative-handling measures;

e/ Responsibilities of individuals, agencies and organizations that execute the decision;

g/ The right to complaint about the decision;

h/ Effect of the decision;

i/ Decision recipients.

Chapter IV

COMPLAINTS, PETITIONS AND PROTESTS; SETTLEMENT OF COMPLAINTS, PETITIONS AND PROTESTS IN THE APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES

Section 1. COMPLAINTS, PETITIONS AND PROTESTS; SETTLEMENT OF COMPLAINTS, PETITIONS AND PROTESTS AGAINST COURT DECISIONS IN THE APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES

Article 29. Court decisions which can be complained about, petitioned or protested against

1. Decisions on application of administrative-handling measures.

2. Decisions on non-application of administrative-handling measures.

3. Decisions on termination of the consideration of, and decision on, application of administrative-handling measures.

4. Decisions on postponement of, or exemption from, serving of decisions on application of administrative-handling measures.

5. Decisions on reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures.

Article 30. Persons having the right to complaint about, petition or protest against court decisions

1. Subject persons or their lawful representatives, parents or guardians of subject persons being minors have the right to complain about court decisions on application of administrative-handling measures.

2. The proposing agencies have the right to petition, the Procuracies of the same level have the power to protest against court decisions on application of administrative-handling measures when they have grounds to believe that such decisions are illegal.

Article 31. Time limits for complaint about, petition or protest against, court decisions

1. The time limit for subject persons or their lawful representatives, parents or guardians of subject persons being minors to lodge their complaints is 3 working days after the court announces the decision; if they are absent from the session, such time limit is 3 working days after the receipt of the court’s decision.

If due to sickness, a natural disaster, enemy sabotage or other objective hindrances, the complainants cannot exercise their right to complaint within the above time limit, the time where such hindrance exists must not be counted into the time limit for complaint.

2. The time limit for proposing agencies to lodge their petitions or the Procuracies of the same level to make their protests is 3 working days after the court announces the decision.

Article 32. Procedures for lodging complaints about, petitions or protests against, court decisions

1. A complainant shall file a complaint clearly stating the reason and grounds for the complaint, with the court that has considered and decided on the application of administrative-handling measures.

2. The proposing agency or the Procuracy of the same level shall file a written petition or protest, clearly stating the reasons and grounds for the petition or protest, with the court that has considered and decided on the application of administrative-handling measures.

Article 33. Procedures for settlement of complaints about, petitions and protests against, court decisions

1. Within 2 working days after receiving the written complaint, petition or protest, the court that has considered and decided on the application of administrative-handling measures shall send it together with the dossier to its immediate higher-level court for consideration and settlement; and concurrently notify the concerned individual or agency and the Procuracy of the same level of the complaint, petition or protest.

2. Within 2 working days after receiving the written complaint, petition or protest enclosed with the dossier, the immediate higher-level court shall process and assign a judge to consider and settle it, and concurrently notify the complainant, the petitioning agency and the Procuracy of the same level thereof.

3. Within 5 working days after being assigned, the judge shall open a session to consider and settle. At least 3 working days before the session opens, die judge shall notify in writing the opening of the session to the persons prescribed in Clause 4 of this Article.

4. A session to consider and settle a complaint, petition or protest shall bỡ participated by the complainant, his/her lawful representative and representatives of the proposing agency and the Procuracy of the same level; if the representatives of the proposing agency and the procurator are absent, the session must be postponed. The postponement must comply with Clause 4, Article 19 of this Ordinance.

If the complainant is absent for the first time with a plausible reason, the court shall postpone the session; if he/she is absent without a plausible reason, or with a written request for permission for absence, or is absent for the second time, the court shall proceed with the session.

The court may invite medical, psychological, educational and sociological specialists to the session for their opinions on professional matters related to the contents of the complaint, petition or protest.

5. If the complainant withdraws his/her complaint, the proposing agency withdraws its petition or the Procuracy withdraws its protest, the court shall stop the consideration of the complaint, petition or protest; in this case, the complained, petitioned or protested decision will take effect.

Article 34. Order of conducting sessions to consider and settle complaints about, petitions or protests against, court decisions

1. Before a session opens, the session clerk shall perform the following tasks:

a/ To announce the regulations of the session;

b/ To check the presence of persons summoned by the court; if someone is absent, he/she shall clarify the reason therefor and report such to the judge for consideration of whether to continue with or postpone the session.

2. The procedures for conducting a session are as follows:

a/ The judge announces the opening of the session;

b/ The judge explains the rights and obligations of participants in the session. If there is a request for change of the judge, the judge shall consider; if there are grounds, the judge shall halt the session and report it to the chief justice of the court for consideration and decision. If the judge must be changed while another judge is not available for replacement, the session must be postponed. The postponement must comply with Clause 4, Article 19 of this Ordinance.

c/ The complainant or his/her lawful representative presents the contents of the complaint; the representative of the proposing agency presents the contents of the petition or the procurator presents the contents of the protest;

d/ The subject person or his/her lawful representative presents his/her opinions and argues with the representative of the proposing agency or protesting procuracy on related matters;

dd/ The procurator presents his/her opinions on the observance of law in the consideration of the complaint, petition or protest;

e/ The judge announces one of the decisions prescribed in Article 35 of this Ordinance.

Article 35. Judges’ jurisdiction to settle complaints, petitions and protests

1. To reject complaints, petitions or protests; to uphold decisions of district-level courts.

2. To accept part of complaints, petitions or protests; to amend the district-level courts’ decisions regarding the time limit for application of administrative-handling measures.

3. To cancel the district- level courts’ illegal decisions on non-acceptance of application of administrative-handling measures; to return the dossiers to the district-level courts.

4. To cancel the district-level courts’ decisions, terminate the consideration and application of administrative-handling measures when there is one of the grounds prescribed in Clause 1, Article 15 of this Ordinance.

5. To cancel the district-level courts’ decisions on postponement of, or exemption from, serving of decisions on application of administrative-handling measures and to compel the serving of administrative-handling measures when there are no grounds prescribed in Article 111 of the Law on Handling of Administrative Violations.

6. To cancel the district-level courts’ decisions on non-acceptance of the postponement of, or exemption from, serving of decisions on application of administrative-handling measures, and accept the proposal to postpone or exempt the serving of decisions on application of administrative-handling measures when there are no grounds prescribed in Article 111 of the Law on Handling of Administrative Violations.

7. To cancel the district-level courts’ decisions on reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures when such decisions violate Article 112 of the Law on Handling of Administrative Violations and Article 27 of this Ordinance.

8. To cancel the district-level courts’ decisions on non-acceptance of proposals on reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures and decisions on reduction of the duration of, suspension of, or exemption from, serving of the remaining duration of, application of administrative-handling measures when there are no grounds prescribed in Article 112 of the Law on Handling of Administrative Violations and Article 27 of this Ordinance.

9. To terminate the settlement of complaints, petitions or protests when the complainants, petitioning agencies or protesting procuracies withdraw the whole of their complaints, petitions or protests; in this case, the district-level courts’ decisions shall take effect.

Article 36. Contents and effect of decisions on settlement of complaints, petitions or protests

1. A decision on settlement of a complaint, petition or protest must contain the following principal details:

a/ The serial number, date of issuance of the decision;

b/ Name of the decision-issuing court;

c/ Full names of the judge and clerk of the session;

d/ Full name of the procurator participating in the session;

dd/ Full name of the complainant;

e/ Name of the petitioning agency or the protesting Procuracy;

g/ Contents of the complaint, petition or protest;

h/ Reasons and grounds for, and contents of, the settlement of the complaint, petition or protest;

i/ Effect of the decision;

k/ Decision recipients.

2. Decisions on settlement of complaints, petitions or protests are final and take effect immediately.

Within 2 working days after announcing the decision, the court shall send it to the persons prescribed in Article 24 of this Ordinance and the court that has issued the complained, petitioned or protested decision.

3. Decisions on settlement of complaints, petitions or protests and the materials and documents collected or issued by courts in the process of considering and settling the complaints, petitions or protests shall be numbered and archived in accordance with law.

Section 2. COMPLAINTS AND SETTLEMENT OF COMPLAINTS ABOUT ACTS OF COMPETENT PERSONS OF COURTS IN THE APPLICATION OF ADMINISTRATIVE-HANDLING MEASURES

Article 37. Acts that can be complained about in the consideration of, and decision on, application of administrative-handling measures

1. Individuals, agencies and organizations have the right to complain about acts of chief justices, judges or clerks in the delivery and receipt of dossiers, acceptance of cases for handling, assignment of judges; requests for supplementation of documents and evidence, serving of court decisions, opening of sessions, participants in sessions, settlement time limit and other acts in the consideration of, and decision on, application of administrative- handling measures when they have grounds to believe that such acts are illegal, infringing upon their lawful rights and interests.

2. Complaints about other acts not related to the consideration of, and decision on, application of administrative-handling measures at courts shall be considered and settled in accordance with law.

Article 38. Rights and obligations of complainants

1. A complainant has the following rights:

a/ To lodge complaints on his/her/its own or through a lawful representative;

b/ To lodge complaints at any stage of the process of considering and deciding on application of administrative-handling measures;

c/ To withdraw his/her/its complaints at any stage of the process of complaint settlement;

d/ To receive written replies on acceptance of complaints for settlement, to receive the complaint settlement decisions;

dd/ To have his/her/its lawful rights and interests, which have been infringed upon, restored, to be compensated for damage in accordance with law.

2. A complainant has the following obligations:

a/ To lodge his/her/its complaints with proper persons with settlement competence;

b/ To present the matters honestly, to provide information and documents to the complaint-settling person; to be accountable before law for the contents and the information and documents he/she/it has presented or provided;

c/ To abide by the complaint settlement decisions which are legally effective.

Article 39. Rights and obligations of complained persons

1. A complained person has the following rights:

a/ To produce evidence of the legality of the complained act;

b/ To receive the complaint settlement decision.

2. A complained person has the following obligations:

a/ To explain the complained act; to provide relevant information and documents when so requested by competent persons;

b/ To abide by the complaint settlement decision which is legally effective;

c/ To compensate for damage, to remedy consequences of his/her illegal acts in accordance with law.

Article 40. Time limit for lodging complaints

The time limit for lodging a complaint is 3 working days after the complainant knows and believes that an act of a competent person breaches the law.

If due to force majeure events or objective obstacles, the complainant cannot exercise his/her right to complaint within the time limit prescribed in this Article, the time during which the force majeure event or objective obstacle exists must not be included in the time limit for complaint.

Article 41. Complaint-settling competence and time limits

1. Complaints about acts of judges or clerks shall be settled by chief justices of district-level courts within 3 working days after the receipt of complaints; if disagreeing with the settlement result, the complainant may lodge a complaint with the provincial- level court. Within 5 working days after receiving the complaint, the chief justice of the provincial-level court shall examine and settle it. The decision of the chief justice of the provincial-level court is final.

Complaints about acts of chief justices of district-level courts shall be settled by chief justices of provincial-level courts within 5 working days after the receipt of complaints. Decisions of the chief justices of provincial-level courts are final.

2. Complaints about acts of chief justices, judges or clerks of provincial-level courts shall be settled by chief justices of provincial-level courts. Within 3 working days after receiving the complaints, chief justices of provincial-level courts shall examine and settle them. Decisions of chief justices of provincial-level courts are final.

3. Within 2 working days after issuing a complaint settlement decision, the court shall send it to the complainant and the Procuracy of the same level.

Chapter V

IMPLEMENTATION PROVISIONS

Article 42. Effect

1. This Ordinance takes effect on the date of its signing.

2. The provisions of this Ordinance will apply to dossiers which have been compiled by competent agencies for consideration of the postponement of, or exemption from, serving of decisions on application of administrative-handling measures, the reduction of the duration of, suspension of, or exemption from, serving the remaining duration of, application of administrative-handling measures but have not yet been settled by the effective date of this Ordinance.-

 

 

ON BEHALF OF THE NATIONAL ASSEMBLY STANDING COMMITTEE
CHAIRMAN




Nguyen Sinh Hung



(*) Công Báo Nos 199-200 (10/02/2014)

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