Nghị quyết 02/2011/NQ-HDTP

RESOLUTION

ON GUIDING THE IMPLEMENTATION OF A NUMBER OF PROVISIONS OF THE LAW ON ADMINISTRATIVE PROCEDURES

Pursuant to the Law on People’s Court organization;

Aiming to correctly and uniformly implement the provisions of the Law on administrative procedures;
After obtaining unanimous opinions from the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES

Chapter I

GENERAL PROVISIONS

Article 1. Administrative decisions, administrative acts, decisions on settlement of complaints about decisions on handling of competition cases are the subjects of administrative lawsuits prescribed in Article 28 of the Law on administrative procedures

1. Administrative decisions being subjects of lawsuits on requesting the Court for settling administrative cases are documents in form of decisions or other forms such as notices, conclusions, official dispatches promulgated by the State administrative agencies and other agencies, organizations or competent persons of those agencies an organizations containing the contents of administrative decisions being applied one time to one or a number of particular subjects about a particular issue in administrative management that the plaintiffs assume that their lawful rights and interests are violated (except for written notices from agencies, organizations or competent persons of agencies, organizations requesting individuals, agencies, organizations to supplement or provide dossiers, documents relating to the settlement, handling of particular cases at the request of such individuals, agencies or organizations), including:

a) Administrative decisions are promulgated by State administrative agencies and other agencies, organizations or competent persons of such agencies organizations during the settlement, handling of particular cases in administrative management;

b) Administrative decisions are promulgated after having complaints and relating to supplements, amendments, replacements or cancellation of a part or whole of administrative decisions guided in point a this clause.

2. Administrative acts being subjects of lawsuits on requesting the Court for settling administrative cases are acts taken by State administrative agencies and other agencies, organizations or competent persons of such agencies, organizations to perform or not to perform their tasks or official duties as prescribed by law. The determination about whether the administrative acts are taken by State administrative agencies, other agencies, organizations, whether taken by competent persons from State administrative agencies, other agencies, organizations, and whether is not performing the tasks, official duties must be based on the law provisions on the authority and time limits for fulfilling such task, official duties as follows:

a) In case the tasks, official duties are supposed to be performed by the State administrative agencies and other agencies, organizations as prescribed by law but actually performed by the persons in those State administrative agencies and other agencies, organizations under the assignment or authorization, such acts are considered as administrative acts of the State administrative agencies and other agencies, organizations, not be acts of the persons that performed;

Example: As prescribed in Article 126 of the Law on Land, the dossier on land use right exchange shall be submitted to People’s Committees of communes, wards and towns. Mr. Nguyen Van A had submitted the dossier on land use right exchange to the People’s Committee of X commune as prescribed, but Ms. Tran Thi C being the dossier recipient of the People’s Committee of X commune has returned the dossier to Mr. A without specifying the reasons. In this case, the return of the dossier to Mr. A. is considered an administrative act taken by the People’s Committee of X commune, not by Ms. Tran Thi C.

b) In case the particular task, official duties are supposed to be performed by the competent persons in State administrative agencies and other agencies, organizations as prescribed by law, the performance of such particular tasks, official duties are administrative acts taken by the competent persons in despite of they perform directly or authorize, appoint others to perform;

Example: As prescribed by law, the Chairperson of the People’s Committee of H commune is the person competent for compulsory execution of decisions on sanctions against administrative violations of land regarding to Mr. D; but the Chairperson has authorized the Deputy Chairperson of the People’s Committee of H commune to directly organize the enforcement. In this case, the compulsory execution of the decisions on sanctions against administrative violations regarding to Mr. D is considered as the administrative act taken by the Chairperson of the People’s Committee of H commune, not is the administrative act taken by the Deputy Chairperson of the People’s Committee of the H commune.

c) In case the tasks, official duties are supposed to be performed by State administrative agencies and other agencies, organizations as prescribed by law but they fail to perform such duties upon the expiration of the time limit as prescribed by law, the act of not performing those tasks, official duties is considered as an administrative act of State administrative agencies and other agencies, organizations not depending on them having been authorized or assigned to be performed by any particular person in State administrative agencies and other agencies, organizations;

Example: as prescribed in Article 7 of the Government’s Decree No. 88/2006/ND-CP of August 29, 2006 on business registration, the business registration office belonging to the Department of Planning and Investment of the A province is competent to issue Business registration certificates to enterprises established within the province’s administrative boundaries. Enterprise N has fully submitted the valid business registration dossiers. But after expiration of the time limit prescribed by law, the business registration office fails to issue the Business registration certificate to enterprise N. In this case the act of not issuing the Business registration certificate to enterprise N is considered an administrative act taken by the business registration office of the Department of Planning and Investment of A province.

d) In case the particular tasks, official duties are supposed to be performed by the competent persons of State administrative agencies and other agencies, organizations but they fail to perform the tasks, official duties after the expiration of time limit prescribed by law, the act of not performing duties is considered administrative act taken by the competent persons in despite of they have assigned or authorized others to perform.

Example: As prescribed in Article 30 of the Law on Residence, within 03 working days as from fully receiving the documents as prescribed, the Chief police of commune, ward or town must issue the temporary residence book to the requesting household or individual. Ms. X has fully submitted the documents to the Chief police of the N commune. But after 03 working days as from fully receiving the documents, the Chief police of the N commune fails to issue the temporary residence book to Ms. X. In this case, the act of not issuing the temporary residence book to Ms. X is considered an administrative act taken by the Chief police of N commune.

3. The decisions on settling complaints about decisions on handling competition cases being subjects of lawsuits on requesting the Court for settling administrative cases are decisions of the Competition councils, the Minister of Industry and Trade when settle complaints about decisions on handling competitions cases as prescribed in section 7 Chapter V of the Law on competition, including:

a) The Competition council’s decisions on settling complaints about decisions of the Council of handling competitions cases when handling competitions cases relating to acts of restricting competition;

b) The Minister of Industry and Trade’s decisions on settling complaints about the decisions of the Heads of competition management agencies when handling competitions cases relating to unhealthy competitions.

Article 2. Identifying the defendants prescribed in clause 7 Article 3 of the Law on administrative procedures

1. As prescribed in clause 7 Article 3 of the Law on administrative procedures, the defendants are individuals, agencies, organizations making administrative decisions and taking administrative acts, making disciplinary decisions on dismissal, decisions on settling complaints about decisions on handling competition cases, a voter list over which a lawsuit is insitiuted; therefore, in other to determine whether the defendants are individuals or agencies, organizations, it is required to base on the law provisions on the authority to settle such cases. In case there are many laws that regulate the authority to make administrative decisions or to take administrative acts about the same management domain, the determination of whether the authority belong to individuals or agencies, organizations must be based on the specialized laws.

Example: There are two litigated administrative decisions signed by the chairperson of the district-level People’s Committee (a decision on sanctions against administrative violations and a decision on recovering land from a household). Pursuant to the law provisions on the authority to settle such cases, the defendant in the administrative lawsuit over the decisions on sanctions against administrative violations shall be individual of the chairperson of the district-level People’s Committee (Article 29 of the Ordinance on Handling administrative violations), and the defendant in the administrative lawsuits over the decision on recovering land from the household is the district-level People’s Committee (Article 44 of the Law on land).

2. The competent persons in State administrative agencies and other agencies, organizations prescribed in clause 1 and clause 2 Article 3 of the Law on administrative procedures are persons that hold particular positions, titles over which the persons are competent to make administrative decisions or commit administrative acts under provisions of law. In case the administrative decision or administrative act is signed or committed by a particular person, but such administrative decision or administrative act is signed or committed in the name of a competent position or title, the administrative decision or administrative act are considered made or committed by the person holding such that position or title.

Example: The administrative decisions signed by Mr. Nguyen Van A in the name of the chairperson of the People’s Committee of district B is considered the administrative decision of chairperson of the People’s Committee of district B, not Mr. Nguyen Van A’s.

Article 3. Settlement of compensation matters in administrative lawsuits prescribed in Article 6 of the Law on administrative procedures

1. As prescribed in paragraph 1 Article 6 of the Law on administrative procedures, the plaintiffs, the persons of whom the interests and duties are related to the administrative lawsuits may simultaneously claim compensations for damage. The damages in this case are actual damages caused by the making administrative decisions, administrative acts, disciplinary decisions on dismissal, decisions on settling complaints about decisions on handling competition cases. The plaintiff and the person with relevant interests and duties claiming compensation for damage are obliged to provide evidence. In case of necessary, the Court may collect more evidence to ensure the accuracy of the lawsuit settlement.

2. When settling compensation claims, it is necessary to distinguish:

a) In case the Court settle both the part of compensation claim and administrative lawsuit of which the judgment on compensation is appealed or protested against by the Appellate Court, Court of Cassation or Reopening in order to first-instance trial or appellate re-trial, the part of decisions on compensation in this case is a part of the administrative lawsuit. The settlement procedures for the part of decisions on compensation being appealed, protested against or cancelled for first-instance trial or appellate re-trial shall be implemented as prescribed by the Law on administrative procedures.

Example: In case only the decision part of the first-instance administrative judgment of the People’s Court of N district, P province on the compensation is appealed, the Administrative Court of People’s Court of P province shall accept for settlement under administrative procedures; if the decision part of the first-instance administrative judgment of the People’s Court of N district, P province on the compensation is canceled by the People’s Court of P province for first-instance re-trial, the People’s Court of N district shall accept for settlement and conduct first-instance re-trial under the administrative procedures.

b) In case the Court separate the settlement of compensation claim to settle later as another civil lawsuit, the settlement procedures shall be implemented as prescribed by the Civil procedure code.

Article 4. If necessary, provincial-level Courts may take up to settle the lawsuits under the jurisdiction of district-level Courts for settlement prescribed in point g clause 1 Article 30 of the Law on administrative procedures

1. Lawsuits over administrative decisions, administrative acts of district-level People’s Committees, chairpersons of the district-level People’s Committees that are complicated or related to multiple subjects.

2. Lawsuits over administrative decisions, administrative acts under the jurisdiction of district-level Courts of which the Judges are in cases of refusal or change of procedure-conducting persons.

3. The lawsuits of which the involved parties or property are overseas or need to be judicially entrusted to overseas diplomatic agencies of the Socialist Republic of Vietnam or competent agencies of foreign countries.

Article 5. Determination of jurisdiction when simultaneously receive the complaint petition and the lawsuit petition prescribed in Article 31 of the Law on administrative procedures

1. In case the plaintiff files a petition to institute an administrative lawsuit at a competent Court, and simultaneously files a complaint with the persons competent to settle complaints, the Court must request the plaintiff to select a settlement agency in writing; if the plaintiff can not do the written selection, the Court must make written record on the plaintiff’s selection of settlement agencies.

2. In case the administrative decisions, administrative acts only relate to one person who both files a petition to institute an administrative lawsuit at a competent Court and simultaneously files a complaint with the persons competent to settle complaints, the case shall be settled under the selection of the plaintiff. If the plaintiff choses the Court for settlement, the Court shall accept that lawsuit for settlement under the general procedures, concurrently notify the person competent to settle complaints and request to transfer all complaint settlement dossiers to the Court (if any). If the plaintiff choses the person competent to settle complaints, the Court shall base on point g clause 1 Article 109 of the Law on administrative procedures to return the lawsuit petition and the attached documents to the plaintiff. If the complaint has not been settled after the time limit for settling the complaint is expired or the complaint has been settled but the plaintiff does not concur with the complaint settlement and files a petition to institute an an administrative lawsuit, the Court shall consider to accept the lawsuit for settlement under the general procedures.

3. The administrative decisions, administrative acts relating to many persons shall be distinguished as follows:

a) In case only one person that simultaneously files a petition to institute an administrative lawsuit at a competent Court and files a complaint with the person competent to settle complaints, the others neither files a petition to institute any administrative lawsuit nor files any complaint with the person competent to settle complaints, the settlement jurisdiction shall be executed similarly to that guided in clause 2 this Article;

b) In case many persons that simultaneously files a petition to institute administrative lawsuits at a competent Court and files complaints with the person competent to settle complaints and all of these persons unanimously select one of two agencies competent to settle (the Court or the person competent to settle complaints), the settlement jurisdiction shall be executed similarly to that guided in clause 2 this Article;

c) In case many persons that simultaneously files a petition to institute administrative lawsuits with the competent Court and files complaints with the person competent to settle complaints, one or some of whom select the Court to settle while the others select the person competent to settle complaints, or only one or a number of persons files a petition to institute administrative lawsuits with the competent Court, one or a number of persons only files complaints with the person competent to settle complaints, shall be distinguished as follows:

c.1) If the interests and duties of the plaintiffs and complainants are independent, the Court shall settle the plaintiffs’ case under Court’s jusrisdiction, the person competent to settle complaints shall settle the complainants’ case under authority of the person competent. By this means, the Court shall accept the request of the plaintiffs for settlement and notify the person competent to settle complaints that the Court has accepted the plaintiffs’ request for settlement;

c.2) If the interests and duties of the plaintiffs and complainants are not independent, the Court shall accept the case for settlement under general procedures, concurrently notify the person competent to settle complaints and request to transfer all complaint settlement dossiers to the Court (if any)

Article 6. Settling the case that the Court has accepted the administrative lawsuit for settlement and then find that it is another lawsuit or under the jurisdiction of other Courts

1. When settling administrative lawsuits under first-instance procedures, if the Court find that it is not the administrative lawsuits but other kind of lawsuits (civil, economic or labor lawsuits) and the lawsuit settlement is under their authority, the Court shall settle the lawsuits under the general procedures prescribed by the law on procedures and notify the involved parties and the Procuracy at the same level.

2. If the lawsuit is found to be under the jurisdiction of other Courts before making the decision on bringing the case to a first-instance trial, the Judge assigned to settle administrative lawsuits shall base on clause 1 Article 32 of the Law on administrative procedures to delete lawsuits from the book of case acceptance and transfer the lawsuit file to competent Courts, concurrently notify the involved parties and the Procuracy at the same level.

3. If the lawsuit is found to be under the jurisdiction of other Courts after deciding to bring the case to first-instance trial, the Court must open of court hearings. At the trial, the trial panel shall employ clause 3 Article 139 of the Law on administrative procedures to make decisions on suspending the trial and transfer the lawsuit file to competent Court.

4. During the appellate trial, if finding that the lawsuit belongs to case guided in clause 1 and clause 2 this Article, the appellate court shall base on clause 3 Article 205 of the Law on administrative procedures to cancel the first-instance judgment, first-instance decision due to serious violation of procedures and transfer the lawsuit file to the Court competent to first-instance trials in order to settle the lawsuit for first-instance under the general procedures as prescribed by the procedures law regarding to that lawsuit.

5. During the cassation trial or reopening trial of administrative lawsuits, if finding that the lawsuit belongs to case guided clause 1 and clause 2 this Article, the Cassation Court or Reopening Court shall base on clause 3 Article 225 or clause 2 Article 237 of the Law on administrative procedures to cancel the legally effective judgment, decision due to serious violation of procedures and transfer the lawsuit file to the Court competent to settle the lawsuit for first-instance under the general procedures as prescribed by the procedures law regarding to that lawsuit.

Article 7. Consolidating or separating administrative lawsuits prescribed in Article 33 of the Law on administrative procedures

1. The Court may consolidate two or more administrative lawsuits separately accepted into a sole administrative lawsuit for settlement when be satisfied the following conditions:

a) The lawsuits which separately accepted have only one plaintiff for various administrative decisions or administrative acts that are closely related with mutual and committed or made by the same agencies, organizations or a competent person in the agency, organizations, or lawsuits separately accepted of which many plaintiffs for the same administrative decision or administrative act;

Example 1: Mr. Nguyen Van A institutes a lawsuit over the decision on land recovering and the decision on approving the compensation plan when recovering Mr. A’s land. Both decisions are issued by the People’s Committee of B district. The Court of B district has accepted them into two separate administrative lawsuits for settlement.

Example 2. The chairperson of the People’s Committee of H District issues a decision on sanctions against administrative violations of land management to Mr. Nguyen Van B and Ms. Tran Thi C. Both Mr. B and Ms. C have instituted administrative lawsuits that the Court has accepted as two separate lawsuits for settlement.

The consolidation of two or more administrative lawsuits into a sole case must ensure that the adjudication is quick, efficient, complete and not violating the time limit for trial preparation.

2. The Court may separate an administrative lawsuit into many different administrative lawsuits if the litigated administrative decision relates to many plaintiffs and their interests, duties are mutual unrelated.

Example: People’s Committee of N district issues the decision on recovering the land from two households in X ward in which defining the particular area of land being recovered from each household. Both of household be recovered land have instituted lawsuits at the People’s Court of N district and the Court has accepted as an administrative lawsuit. In this case, the interests and duties of the two households are independent and mutual unrelated. Therefore, the Court may separate this lawsuit into two different administrative lawsuits.

Article 8. In case of refusing or replacing the procedure – conducting persons because being relatives of the involved parties, or there are clear grounds to believe that they may not be impartial while on duty prescribed in clause 1 and clause 8 Article 41 of the Law on administrative procedures

1. The relatives of the involved parties are persons having the following relationship with the involved parties:

a) Being the involved parties’ wife, husband, biological father, biological mother, adoptive father, adoptive mother, biological children or adopted children;

b) Being the involved parties’ paternal grandfather, paternal grandmother, maternal grandfather, maternal grandmother, siblings;

c) Being the involved parties’ blood uncle or aunt;

d) Being the grandchildren, nephews and nieces of the involved parties who being paternal grandfather, paternal grandmother, maternal grandfather, maternal grandmother, blood uncle or aunt.

2. Having clear grounds to believe that they may not be impartial while on duty means excepting for cases prescribed in clauses from clause 1 to clause 7 Article 41 of the Law on administrative procedures, in other cases (emotional relationship, relationship between parents of wife and parents of husband, work relationship, economic relationship…), there are clear grounds to believe that the Judges, the People’s Juror, the Procurator, or the Court secretary is not impartial while on duty. Example: The People’s Juror is the plaintiff’s twinning brother; the Judge is the son in law of the person with relevant interests and duty…

It is considered that there are clear grounds to believe that they may not be impartial while on duty if within the same administrative lawsuit trial, the Procurator, the Judge, the People’s Juror and the Court secretary are mutual relatives, or if the Procurator, the Judge, the People’s Juror who assigned to adjudicate the appellate administrative trial having their relatives being the Judge, the Procurator, the People’s Juror have conducted the first-instance trial, appellate trial of that lawsuit.

Article 9. Replacing the Judges, the People’s Jurors prescribed in Article 42 of the Law on administrative procedures

1. As prescribed in clause 2 Article 42 of the Law on administrative procedures, the Judge, the People’s Juror must refuse to conduct procedures, or must be replaced if they are relatives of other member in the trial panel. However, when there are two persons in the trial panel are relatives, only one of them is replaced or compelled to refuse. The determination of whether the Judge, the People’s Juror in the same Trial panel are mutual relatives are performed as guided in clause 1 Article 8 of this Resolution.

2. As prescribed in clause 3 Article 42 of the Law on administrative procedures, the Judge, the People’s Juror must refuse to conduct procedures or must be replaced if they have participated in the first-instance trial, appellate trial, cassation trial or reopening trial of the same case. “Participated in the first-instance trial, appellate trial, cassation trial or reopening trial of the same case” means that person has participated in settling the case and has issued the first-instance trial judgment, appellate trial judgment, cassation trial or reopening decision, decision on suspending the lawsuit settlement (except the member of the Judge council of the Supreme People’s Court, the Judge Committees of provincial Court allowed to participate in the trial many times in the same lawsuit under the cassation trial and reopening trial procedures).

Article 10. In case the defendant modifies or cancels the litigated decision prescribed in clause 3 Article 51 of the Law on administrative procedures

As prescribed in clause 3 Article 51 of the Law on administrative procedures, during the administrative lawsuit settlement, the defendant is entitled to modify or cancel the administrative decision, the disciplinary decision on dismissal, the decision on settling complaints and the decision on handling competitions cases, the voter list over which lawsuits are instituted. Therefore, if the defendant modifies or cancels the administrative decisions, the disciplinary decision on dismissal, the decision on seetling complaints and the decision on handling competitions cases, the voter list over which lawsuits are instituted during the administrative lawsuit settlement, the Court shall notify the plaintiff, the persons with relevant interests and duties that make independent claimsas and discern as follows:

1. If the plaintiff and the person with relevant interests that make independent claimsas withdraw the lawsuit petitions and requirements, the Court shall base on point b clause 1 Article 120 of the Law on administrative procedures to issue decisions on suspending the lawsuit settlement;

2. If the plaintiff and the person with relevant interests and duties that make independent claimsas do not withdraw the lawsuit petitions and requirements, the Court shall continue to settle the case under the general procedures. In this case, the Court must consider the legitimacy of the litigated decision, the decision on modifying or canceling the litigated decision to make lawful decisions for each particular case;

3. If the plaintiff withdraws the lawsuit petition but the person with relevant interests and duties that make independent claimsas does not with draw the requirements, the Court shall suspend the settlement regarding the plaintiff’s requirements, and continue settling regarding the independent requirements of the person with relevant interests and duties. In this case the person with relevant interests and duties becomes the plaintiff;

4. If the person with relevant interests that make independent claimsas withdraws the requirements but the plaintiff does not withdraw the lawsuit petition, the Court shall suspend the settlement regarding the requirements of the person with relevant interests and duties, and continue settling regarding the plaintiff’s requirements under the general procedures.

Article 11. The escort of witnesses, the commitment obligation of witnesses, the refusal to give testimonies of witnesses prescribed in Article 56 of the Law on administrative procedures

1. The trial panel may issue decisions on escorting the witness to the Court when the following conditions are satisfied:

a) The witness has been legally summoned but does not present in Court without plausible reasons;

b) The absence of the witness in Court impedes the trial;

c) The escort of the witness to the Court may be done before arguing.

The decision on escorting witnesses must be promptly delivered to the police force of Judicial protection and support under the People’s Public Security competent to excecute as prescribed in the Circular No. 15/2003/TT-BCA (V19) of September 10, 2003 of the Ministry of Public Security “guiding the judicial support of the Judicial Support and Protection Police Force under the People’ Public Security”.

2. During the trial preparation and in court, the Judge or the trial panel shall request the witnesses to make commitments before the Court to exercise their rights and perform their obligations, unless the witness is minor person. The witness’ commitment includes the following contents:

a) The commitment to be explained clearly the witness’ rights and obligations by the Court;

b) The commitment to honestly testify before the Court.

c) The commitment to bear responsibilities before law for their testimonies.

During the trial preparation, the witness’ commitment shall be recorded into the minutes on taking witness testimonies; in court hearings, the witness’ commitment shall be recorded into the minutes of cour hearings.

3. The witnesses are entitled to refuse to give testimonies if their testimonies are related to State’s secrets, occupational secrets, business secrets, privacy secrets, or the testimonies badly or adversely affect involved parties who are their relatives. In this case, the Judge must explain that if the refusal to give testimonies is unfounded, they must bear responsibilities as prescribed by law.

a) Relating to the State’s secret means relating to the issues (information, news, contents…) in legal documents of competent State agencies be regulated by laws at the categorized level of “Strictly Confidential”, “Top secret” or “Confidential”

b) Relating to occupational secrets, business secrets, privacy secrets means relating to the witnesses’ occupational secrets, business secrets, privacy secrets that protected by law;

c) Badly or adversely affecting involved parties in lawsuit who are their relatives is the case if the witnesses testify things they know, it shall badly affect the happiness, honor, dignity, reputation or other bad effects on the life, work, production, business of involved parties being the witnesses’ relatives.

The identification of the witnesses’ relatives are performed as guided in clause 1 Article 8 of this Resolution.

Chapter II

ON INSTITUTING LAWSUITS AND A NUMBER OF PROVISIONS ON FIRST-INSTANCE TRIAL PROCEDURES

Article 12. Statute of limitations for lawsuit institution prescribed in Article 104 of the Law on administrative procedures

1. As prescribed in point a clause 2 Article 104 of the Law on administrative procedures, the Statute of limitations for lawsuit institution of administrative decisions, administrative acts and disciplinary decisions on dismissal is one year from the day of receiving or knowing these decisions. Therefore, in order to determining the whether starting time of the Statute of limitations for lawsuit institution is the “date of receipt” or “date of knowledge”, it is required to base on the subject impacted directly of the administrative decisions, administrative acts, disciplinary decisions on dismissal and distinguished as following:

a) For individuals, agencies and organizations be impacted directly by administrative decisions, disciplinary decisions on dismissal and they are the subjects receiving decisions, the starting time of the Statute of limitations for lawsuit institution is from the date when they receiving these decisions (directly delivered by agencies or persons competent to issue administrative decisions and disciplinary decisions on dismissal, or received via postman, local authorities or other persons as prescribed by law). Example: On July 08, 2011, Mr. N received the Decision No. 19/QD-UBND of February 10, 2011 of the People’s Committee of B district on issuing the land use right certificate for himself with 150 m2 of land. The Statute of limitations for lawsuit institution of Mr. N over the Decision No. 19/QD-UBND of February 10, 2011 of the People’s Committee of B district shall start from the day Mr. N received the Decision (July 08, 2011);

b) For individuals, agencies and organizations not being subjects be impacted directly by administrative decisions, disciplinary decisions on dismissal, and not being subjects that receive the decisions and actually not receiving the decisions, the Statute of limitations for lawsuit institution shall start from the day they know these decisions. Example: In the case stated in point a clause 1 this Article, after being issued with the land use right certificate, Mr. N has built the surrounding wall for the land area of 150m2. Mr. Q being Mr. N’s neighbor assumed that Mr. N has built the wall over the Mr. Q’s land. On July 28, 2011, Mr. N showed Mr. Q his land use right certificate and Mr. Q found that part of the land that Mr. N has been issued with the land use right certificate is under the possession of Mr. Q. In this case, the Statute of limitations for lawsuit institution of the Decision No. 19/QD-UBND of February 10, 2011 of the People’s Committee of district B shall start from the day Mr. Q knew the Decision (July 28, 2011);

c) In case the acts of State administrative agencies and other agencies, organizations or competent persons in those agencies, organizations performing task, official duties as prescribed by law, the Statute of limitations for lawsuit institution starts from the day those administrative acts are committed (in case the individuals, agencies, organizations witnessed those administrative acts) or from the day of being notified of time point of committing those administrative acts (in case the individuals, agencies, organizations do not witness those administrative acts but are notified by competent agencies of the time point when such administrative acts are committed), or from the date of knowing about the administrative acts (in case the individuals, agencies, organizations do not witness those administrative acts and are not notified by competent agencies of the time point when such administrative acts are committed, but they knew about the acts through other means of information such as being retold by other persons);

Example 1: On July 10, 2011, the chairperson of the District People’s Committee mobilized the force and means to coerce dismantlement of the house illegally built of Mr. H and Mr. H witnessed that act, the Statute of limitations for lawsuit institution over the act of dismantlement of the house starts from the date of committing that act (July 10, 2011).

Example 2: In the example 1 in the point c, Mr. T has a house next to Mr. H’ house that was coerce dismantlement. During the enforcement, Mr. T was overseas for work. On July 15, 2011, Mr. T returned and saw his walls being cracked and knowing that Mr. H’s house was coerced dismantlement. If Mr. T file a petition for lawsuit over the administrative act of dismantlement of the illegally-built house that violate his lawful rights and interests, the Statute of limitations for lawsuit institution of Mr. T over the act of dismantlement of the house starts shall start from the day when Mr. T heard of the coercive dismantlement of Mr. H’s house (July 15, 2011).

d) In case the acts of State administrative agencies and other agencies, organizations or competent persons in those agencies, organizations not performing task, official duties as prescribed by law, the Statute of limitations for lawsuit institution shall start from the end of the prescribed time limit prescribed by law but the agencies, organizations or competent persons failed to be performed task, official duty.

Example: Mr. A being the enterprise founder has fully submit the business registration application as prescribed by law. After the time limit for issuing the Business registration certificate is expired, Mr. A had not received the Business registration certificate. The Statute of limitations for lawsuit institution shall start from the end of the time limit for issuing the Business registration certificate.

2. The time of force majeure or other objective hindrances not calculated in the Statute of limitations for lawsuit institution is the time of occurring one of the following events:

a) Force majeure or objective hindrances such as natural disasters, enemy-inflicted destruction, fighting demands, fighting services or by faults of State agencies that make the subjects entitled to institute lawsuit unable to lodge lawsuits within Statute of limitations for lawsuit institution;

b) There is no representative in case the plaintiffs are minors, have lost their civil act capacity or are restrained their civil act capacity;

c) There is no substitute representative, or because of other legitimate reasons the representatives cannot continue to represent in case the representatives of minors, persons having lost their civil act capacity or being restrained their civil act capacity die.

Article 13. Amending, supplementing the lawsuit petitions prescribed in Article 105 of the Law on administrative procedures

1. When receiving or after receiving the lawsuit petitions that are deemed improper as prescribed in clause 1 Article 105 of the Law on administrative procedures, the cases shall be handle as follows:

a) In case the lawsuit petitions do not sufficiently include the contents prescribed in clause 1 Article 105 of the Law on administrative procedures, depending on the request for amendment and supplement of the lawsuit petitions, the Court shall request the plaintiffs to amend and supplement the lawsuit petitions within a time limit prescribed by the Court not exceeding 10 working days as from the day the plaintiffs receive the written request for the lawsuit petitions amendment and supplement from the Court;

b) In case subject matters of the lawsuit being wriiten in the petitions are decisions on handling complaints that not belong to the subject matters of administrative lawsuits as prescribed by the Law on administrative procedures and the guidance in Article 1 of this Resolution, the Court shall explain to the plaintiffs that the decisions on handling complaints do not belong to the subject matters of administrative lawsuits and request the plaintiffs to amend and supplement the lawsuit petitions regarding the subject matters of lawsuits within the time limit guided in point a this clause.

2. The request for lawsuit petition amendments and supplements must be made in writing and specify the issues that need to be amended and supplemented. This written request may be sent directly or via postal services to the plaintiffs and must be recorded in monitor book.

3. The time of amending and supplementing the lawsuit petitions is not included in the Statute of limitations for lawsuit institution. The date of lawsuit institution is still the date of filing petitions for lawsuits and shall be determined as guided in Article 13 of this Resolution.

4. After the plaintiff has amended and supplemented the lawsuit petition according to the Court’s request, the Court shall continue to accept the lawsuit for settlement under the general procedures prescribed in Article 111 of the Law on administrative procedures. If the time defined by Court expired, but the plaintiffs fail to amend and supplement the lawsuit petitions according to the Court’s request, the Court shall base on point h clause 1 Article 109 of the Law on administrative procedures to return the lawsuit petition and the attached documents, evidences.

Article 14. Determining the date of lawsuit institution prescribed in Article 106 of the Law on administrative procedures

1. If the plaintiff direct files the petition at the Court as prescribed in point a clause 1 Article 106 of the Law on administrative procedures, the date of lawsuit institution is the date of submitting the petition.

2. If the litigant sends the petition to the Court via post as prescribed in point b clause 1 Article 106 of the Law on administrative procedures, the date of lawsuit institution is the date postmarked by the sending post office. In case the date on the envelope cannot be identified, it shall be determined as follows:

a) If the Court receives the petition delivered via post while the Statute of limitations for lawsuit institution is unexpired, the date of lawsuit institution is the day the Court receives the petition delivered via post;

b) If the Court receives the petition delivered via post when the Statute of limitations for lawsuit institution has expired, the Court must verify the day the litigant send the petition at the post office as follows:

If the day the litigant sends the petition at the post office can be identified, the date of lawsuit institution is the day the litigant sends the petition at the post office;

If the day the litigant sends the petition at the post office can not be identified, the date of lawsuit institution is the date written in the lawsuit petition.

3. If there are both complaint and lawsuit petitions and the plaintiffs select agency competent to settle complaints for settlement, the date of lawsuit institution over the administrative decision that they lodged complaint against is the date of sending the first lawsuit petition. If the plaintiff only lodges a lawsuit over the decision on handling complaints with new contents, the date of lawsuit is the day they send the lawsuit petition over the decision on handling complaints. The date of lawsuit isnstitution in these cases shall be determined as guided in clause 1 and clause 2 this Article.

4. If the lawsuit is transferred to other courts as prescribed in clause 1 Article 32 and clause 3 Article 139 of the Law on administrative procedures and guided in Article 6 and Article 18 of this Resolution, the date of lawsuit institution is the date of sending the lawsuit petition to the Court that accepted incorrect jurisdiction and shall be determined as guided in clause 1, 2, and 3 this Article.

Article 15. Time limit for first-instance trial preparation prescribed in Article 117 of the Law on administrative procedures

1. The time limit for first-instance trial preparation is four months as from the date of the lawsuit acceptance regarding the case prescribed in point a clause 2 Article 104 of the Law on administrative procedures; two months as from the date of the lawsuit acceptance regarding the case prescribed in point b clause 2 Article 104 of the Law on administrative procedures. Only complicated lawsuits or there are objective hindrances, the time limit or trial preparation shall be within six months regarding the case prescribed in point a clause 1 Article 117 of the Law on administrative procedures and not exceed 03 months regarding the case prescribed in point b clause 1 Article 117 of the Law on administrative procedures as from the date of the lawsuit acceptance.

a) “Complicated lawsuits” are the lawsuits that include multiple litigants and relate to multiple domains; have many documents and inconsistent evidences that demand more time to study and synthesize the documents in the case file or refer to professional agencies or must perform complicated technical expert examination, the lawsuits of which the litigants are foreigners being abroad or Vietnam’s citizens residing, studying or working abroad…;

b) “Objective hindrances” are the hindrances guided in point a clause 2 Article 12 of this Resolution that make the Court unable to settle the lawsuit within the prescribed time limit.

Example: The People’s Court of M district, L province in the mountains has issued the decision on bringing the lawsuit to a trial and fixed the date of opening trial. However, two days prior the date of opening trial, it occurs flash flood. The residence of the People’s Court of M district is damaged. For remedying the consequences of flash flood, the People’s Court of M district is not able to carry out the court hearings within the prescribed time limit.

2. Within the time limit prescribed in clause 1 Article 117 of the Law on administrative procedures and guided in clause 1 this Article, the Judge assigned to preside over a trial must make one of the following decisions:

a) Bringing the lawsuit to trial;

b) Suspending the lawsuit settlement;

c) Terminating the lawsuit settlement;

3. If the decision on bringing the lawsuit to trial has been made but the trial is not carried out within 20 days as from the date of having that decision because of legitimate reasons, the time limit shall be added up to 10 days more.

 “Legitimate reasons” are events that objectively occur without anticipation such as: the procedure-conducting person named in the decision on bringing the lawsuit to trial is required to be replaced but the competent person is not able to appoint another for substitution; the complicated lawsuit that has been adjudicated many times in Courts at many levels thus there is no Judge available to adjudicate that lawsuit and it must be transferred to superior Courts or wait the Judges be seconded from other Courts… that make the Court unable to carry out the trial within the prescribed time limit.

4. If the decision on suspending the lawsuit settlement is made, the time limit for trial preparation shall end on the date of suspension. The time limit for trial preparation shall start again as from the day the Court continues to settle the lawsuit when the reasons for suspension no longer exist.

Article 16. Trial suspension prescribed in Article 126 of the Law on administrative procedures

1. As prescribed in paragraph 2, clause 2 Article 126 of the Law on administrative procedures, in special cases, the trial may be suspended but not exceed 05 working days. The trial shall be continued after the suspension duration is expired. Because that, the trial panel does not need to carry out the trial from the beginning. The “special case” for suspending the trial is one of the following cases:

a) By debates and deliberation, the Trial panel finds that it is need consider more documents and evidence for settling the lawsuit;

b) For force majeure or objective hindrances that the trial cannot continue, example: the Judge or the People’s Juror is sick while carrying out the trial without any alternate Judge or Juror that has participated in the trial from the beginning to replace;

c) At the request of the plaintiff, the defendant or other procedure participants for suspending the trial and the Trial panel agrees to suspend the trial that not belonging to the case of delaying the trial prescribed in Article 136 of the Law on administrative procedures. Example: in court, the parties discuss and unanimously agree to suspend the trial so that the defendant can amend, supplement, replace or rescind the administrative decision, to terminate or rectify the litigated administrative act, or so that the plaintiff can consider withdrawing the lawsuit claims.

2. The trial suspension must be recorded to the trial minute and notified to the procedure participants.

Article 17. The Composition of first-instance trial panels in the special cases prescribed in clause 1 Article 128 of the Law on administrative procedures

In the following cases, the first-instance Trial panel may consist of two Judges and three People’s Jurors:

1. Lawsuits over administrative decisions, administrative acts of provincial-level People’s Committees, the Chairpersons of the provincial-level People’s Committees that are complicated or related to multiple subjects;

2. Lawsuits over decision on settlling complaints about decisions on handling competitions cases.

Article 18. Suspending first-instance trials, transferring the lawsuit to competent Courts prescribed in clause 3 Article 139 of the Law on administrative procedures

Clause 3 Article 139 of the Law on administrative procedures prescribes: “In case an involved party present a new administrative decision which is related to the decision over which the lawsuit is instituted and does not fall under the jurisdiction of the court currently conducting the first-instance trial of the case, the trial panel shall terminate the trial and transfer the case file to a competent court “. The new administrative decision in this case is the administrative decision belonging to the subject matters of administrative lawsuits as prescribed by the Law on administrative procedures and guided in clause 1 Article 1 of this Resolution. If such decision is litigated, it is not under the jurisdiction of the court currently conducting the first-instance trial of the case.

Article 19. Applying other provisions of the Law on administrative procedures to settle lawsuits over voter lists prescribed in clause 1 Article 171 of the Law on administrative procedures

 “Other provisions of this Law” prescribed in clause 1 Article 171 of the Law on administrative procedures are the provisions outside Chapter XI of the Law on administrative procedures, but the application of such provisions is not contrary to the provisions in Chapter XI of the Law on administrative procedures except for the provision on trial suspension, sending lawsuit files to the Procuracy for studying before opening the trial and other provisions on appellate procedures.

Chapter III

PROVISIONS ON APPELLATE PROCEDURES

Article 20. Appealing under the appellate procedures prescribed in Article 174 of the Law on administrative procedures

1. The subject matters that the involved parties or their representatives have the right to appeal being appealed in order to request the immediate superior courts to conduct re-trial according to appellate procedures including: judgment, decision of the first-instance trial Court to suspend or terminate the lawsuit settlement.

2. Litigants being individuals with full capacity of administrative procedures may make the appeal petition by themselves. At the section “the full name and address of the appellant” in the appeal petition must be written surname, name, address of appellant. And litigants must sign or fingerprint at the final part of the appeal petition.

3. If the litigants guided in clause 2 this Article do not appeal by themselves, they may authorize their representative to do so. At the section “the full name and address of the appellant” in the appeal petition must be written surname, name, address of representative appeal under authorization, surname, name, address of litigants authorizing appealing and the written of authorization. And the representative under authorization must sign or fingerprint at the final part of the appeal petition.

4. Litigants being agencies, organizations are entitled to file appeal. The legal representatives of litigants being agencies, organizations may file appeals at own their initiative. At the section “the full name and address of the appellant” in the appeal petition must be written name and address of litigants being the agency, organization; the full name and position of the legal representative of the litigants being the agency, organization. And at the final part of the appeal petition, the representative must sign and seal up.

In case the legal representatives of litigants being agencies, organizations authorize other person to represent them for appeal, At the section “the full name and address of the appellant” in the appeal petition must be wrriten the full name and address of the representative under the appeal authorization, the full name and address of the litigant being the authorizing agency, organization; the full name and position of the legal representative of the litigant being that agency, organization and the authorization written. And the authorized representative must sign or fingerprint at the final part of the appeal petition.

5. Legal representatives of may file appeals by themselves. At the section “the full name and address of the appellant” in the petition, the full name and address of the legal representatives, the full name and address of the litigants being minors or persons who have lost civil act capacity, have restricted civil act capacity must be written. And the appellant must sign or fingerprint at the final part of the appeal petition.

In case the legal representative of litigants authorizes another person to represent him/her for appeal, At the section “the full name and address of the appellant” in the petition, the full name and address of the authorized representative and the authorization written, the full name and address of the legal representatives of the litigants, the full name and address of the litigant being minors or persons who have lost civil act capacity, have restricted civil act capacity must be written. And the authorized representative must sign or fingerprint at the final part of the appeal petition.

6. The authorization guided in clause 3, 4 and 5 this Article must be made in notarized and authenticated writing, unless such authorization written is made in court witnessed by the Judges or the Court officer assigned by the Chief Judge. The authorization written must specify that the litigant has authorized the representative to lodge the appeal against the judgment, decision on trial suspension, termination of the first-instance trial Court.

Article 21. Modifying, supplementing appeals or protests prescribed in Article 188 of the Law on administrative procedures

1. The Court shall accept the Procuracy that has protested modifying, supplementing protests as follows:

a) When the time limit for making a protest prescribed in Article 183 of the Law on administrative procedures is not over, the Procuracy that has protested is entitled to modify or supplement protest without being limited by the initial protest range;

b) When the limit for making a protest prescribed in Article 183 of the Law on administrative procedures is over, before starting the trial or in court hearing, the person who has protested is entitled to modify, supplement the appeal but not exceeding the protested range within the time limit for making a protest.

2. The court shall accept the litigant has appealed modifying, supplementing the appeal as follows:

a) When the time limit for an appeal prescribed in Article 176 of the Law on administrative procedures is not over, the litigant who has appealed is entitled to modify, supplement appeals without being limited by the initial appeal range

b) When the time limit for an appeal prescribed in Article 176 of the Law on administrative procedures is over, before starting the trial or in court hearing, the person who has appealed is entitled to modify, supplement the appeal but not exceeding the appealed range within the appeal time limit.

Article 22. Determining the time limit for trial preparation when having decisions on suspending appellate trials prescribed in Article 191 of the Law on administrative procedures

In case there are decisions on suspending appellate trials of administrative lawsuits, the time limit for trial preparation shall end on the date of issuing the decision on suspension. The time limit for appellate trial shall start again on the day the appellate Court continues to conduct appellate trial when the reasons for suspension no longer exist.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 23. Effects

This Resolution is passed by the Judge council of the Supreme People’s Court on July 01, 2011 and takes effect after 45 days as from its signing and supersedes the Resolution No. 04/2006/NQ-HDTP of August 04, 2006 of the Judge council of the Supreme People’s Court on guiding the implementation of a number of the Ordinance on procedures for the settlement of administrative lawsuits amended and supplemented under the Ordinances on amending, supplementing a number of Articles of the Ordinance on procedures for the settlement of administrative lawsuits of December 25, 1998 and April 05, 2006.