Vietnamese Administrative Law

Vietnamese Administrative Law

• Vietnamese Administrative Law is a branch of law in the Vietnamese legal system
• It includes legal norms regulating state management activities, internal working regimes of state agencies, and activities of empowered individuals, state agencies or social organizations

Concept of State Administrative Management

• Management involves intentional influence from a managing subject, following rules and plans, to control and direct a managed object to achieve goals

Characteristics of Management

• Consists of a subject and an object of management
• Expresses the will of the management

Concept of Social Management

• It is defined as the impact of humans on humans to achieve goals in the process of existence and labor

Characteristics of Social Management

• Appears with a division of labor
• It is a purposeful activity between humans
• Subject and object are human
• Formed on the basis of organization and authority

Concept of State Management

• Broad sense: Impact of subjects carrying state power on objects being managed to perform state functions
• Narrow sense: Activity carried out by state administrative agencies to manage various areas of life (economy, culture, politics, etc.)
• Other state agencies and individuals/organizations can participate when empowered

Characteristics of State Administrative Management

• Execution - management activity (hoạt động chấp hành - điều hành)
• It is the most important characteristic of state administrative management
• It's also called Execution - management activity
• Execution involves implementing laws and legal documents from higher-level agencies
• Management involves directing and organizing functions, tasks, and powers
• High proactivity and creativity allows subjects to issue separate legal regulations and select options from the law
• Guaranteed organization, apparatus, and facilities are necessary due to continuous and frequent activities in all areas of social life
• Professionalism ensures that management decisions are consistent with sector and field requirements

Continuity

• Administrative activities occur daily to meet the demands of the management object

Subjects of Regulation

• Social relations that arise in state administrative activities and are regulated by administrative law
• However, not all social relations are regulated by Administrative Law

Groups of Social Relations Regulated by Administrative Law

• Group 1: Administrative relations arising from management activities in various social aspects by state administrative agencies
• Presence of a state administrative agency or a competent person is always required
• Relations arise during the performance of functions, tasks, and powers of state administrative agencies
• Group 2: Management relations formed in the process of state agencies building and consolidating their internal working regimes
• Also, known as internal administrative relations, which includes recruitment, appointment, reward, discipline, transfer, assessment, training, etc
• Group 3: Relations arising when the State authorizes individuals and organizations to perform management activities
• Example: A judge presiding over a court session has the right to impose a fine of up to VND 1,000,000 on those who disrupt the order of the court session
• Example: The aircraft commander has the right to temporarily detain people

Methods of Regulation

• Concept: The way the state influences administrative legal relations to ensure their proper development
• Imperative method: The basic method of Administrative Law
• Expressed by giving the subject of management the right to use state power through unilateral management decisions that are legally binding on the other party
• The object being managed can make requests and recommendations to the subject of management, who can respond or reject
• All parties have certain duties and powers according to the provisions of law, but the coordination in implementing management decisions must follow certain administrative principles
• Agreement and equality method: Complementary method, applied in certain cases
• When state administrative agencies and organizations and individuals sign administrative contracts

Vietnamese Administrative Law

• A branch of law controlling the state management activities of state administration agencies, social relations between state agencies
• Also involves individuals, state agencies or social organizations sanctioned by the State in order to carry out state management activities in specific cases
• The main method of regulation of administration law is the imperative method

Administrative Legal Norms

• Administrative legal norm is a specific form of legal norms
• Contains mandatory rules of conduct issued by state agencies or competent persons in state agencies
• Independently or jointly to regulate relations arising in state management activities
• Applied many times and the implementation is guaranteed by the State

General Characteristics of Administrative Legal Norms

• General rules of conduct, binding and applied repeatedly to agencies, organizations, and individuals nationwide or within an administrative unit
• Issued by competent state agencies and individuals

Specific Characteristics of Administrative Legal Norms

• Specialize in regulating social relations arising in the process of implementing state management activities, specifically in many different areas
• Issued by many competent entities, mainly by state administrative agencies
• Large number of administrative legal regulations, issued frequently, with different legal effects

Effect of Administrative Legal Norms

• Effective date: Generally, legal documents take effect after a period of time

Effective Date Considerations

• Central state agencies: not sooner than 45 days from the document's approval/signing date
• People's Councils and Committees at the provincial level: 10 days
• People's Council/Committee at the district/commune levels: 7 days
• Simplified procedure documents may take effect on the date of approval or signing
• Suspension of effect occurs if documents contravene the Constitution or laws, or to protect interests
• Administrative legal norms cease to be effective if its specified period expires or when it is annulled by a competent state agency, amended, supplemented, or replaced by another document from the same state agency

Spatial Effect

• Territorial scope of legal documents
• Central agencies’ legal documents applies nationwide
• Local People’s Council and Committee legal documents applies in their respected administrative locations

Effect of Subjects of Application

• Scope of state agencies, organizations and individuals responsible for implementing the document
• Central entities legal documents applies nationally
• Local agencies legal documents applies on a local level
• Most documents are especially effective for different subjects

Implementation of Administrative Legal Norms

• Implementation of administrative law is the application of the rules of conduct and regulations dictated towards administrative law subjects

Forms of Implementation

• Execution: Compliance with requirements
• Compliance: Refraining from prohibited acts
• Enforcement: Performing obligations through positive actions
• Use: Exercising prescribed rights

Application of Administrative Legal norms

• Competent individuals and organizations use legal norms to solve problems arising in administrative activity

Requirements for Applying

• Applying to the right content
• Being Performed by a competent entity
• In accordance with the order that prescribed
• Occurring quickly, on time, objectively, and publicly
• Being within the time limit and statute of limitations
• The application results must be in writing and have guaranteed implementation

Execution and Application Relationship

• Execution is the basis to apply new administrative legal norms
• Application is the basis for complying
• Failure to comply leads to compliance

Sources of Vietnamese Administrative Law

• Legal documents containing administrative legal norms

Administrative Legal Relations

• Administrative legal relations are social relations controlled by administrative legal norms
• Relation rises from obligations, rights and subjects during state management activities
• Example, motorcyclists who do not wear helmets should be penalized

Characteristics of Administrative Legal Relations

• Arising from state management
• Includes the participation of the subjects over state power, it is mandatory
• relations can arise upon legal request of any part without needing consent from the other
• Disputes are resolved via administrative procedures

Constituent Elements of Administrative Legal Relations

• Subjects of administrative legal relations are state agencies, organizations and individuals of capacity that are included in law
• Administrative legal capacity refers to an individuals capacity to be and have prescribed by the law
• Administrative act for capacity allows one to participate. To exercise the rights granted to them
• Organizations capacity to act arises when established in accordance with the provisions of law or recognition from a state agency

Content of Administrative Legal Relations

• Rights and obligations towards aspects of relations
• Right of acting per the correct ways dictated by what is allowed in administrative law
• Ability to prevent agencies from performing actions
• Ability to request state officials to protect legit interests

Legal Obligations

• Necessity to act according to the obligations within the law

Objects of Administrative Legal Relations

• Interests that the parties are participating and wish to achieve
• Include public and private sector interest

Grounds for Changes, Termination and Arousing

• Regulations or corresponding norms
• Arises from capacity
• Legal administrative events

Administrative legal events

• Situations and circumstances which arise from life. Foreseen from the hypothetical aspect of legal norms
• Divided to legal events and variables. Legal variables are independent from human will, legal acts depend on if it is legal.

State Administrative Agencies

• Agencies which form part of the apparatus, established to perform functions of state management

Characteristics of State Administrative Agencies

• Carry out state management activities
• Form a continuous, specific, and regular management task
• They form a complex system
• Subordinate units

Classification of State Administrative Agencies

• Territory
  • Central state administrative agencies perform state administration throughout the Vietnamese nation and direct local state administrative bodies.
  • Local state administrative agencies perform state administration in all aspects of the location they reside and direct local state administrative units.
• Jurisdiction
  • State administrative agencies of general jurisdiction perform state management in all phases of life. Consists of the Government and People's Committees of all levels
  • State administrative agencies with separate jurisdiction perform specialized state administration.
• Based on organizational and operational principles
  • State administration bodies, in a collegial regime, include the Government and the People's Committees
  • State-administrative bodies, in a headship regime, include ministries, ministerial-level agencies

Legal Status of State Administrative Agencies

• All legal provisions which control how the position, legal structure, nature, shape of the state is operated.
• It is all written in Constitution, in the Organization of the Government and Local Admin

The Legal Status of Government

• Government, The highest body, will exercise executive power. And also an executive body of the National Assembly
• Government is the highest state administrative of the VN
• Government manages the societal stuff, economy, culture, medicine, etc
• Government implements internal and external policies, improve the administrative efficiency.

Executive Power

• Issue legal documents; specifying and detailing the content of those made by National Assembly
• Proposes, formulates the national policy, draft ordinances
• Directs and inspects policies

Executive Body

• Term falls in line with National Assembly
• Approve proposals from the Minister for removals and appointments
• Power implement Constitution, laws, resolutions to the NA
• Accountable to the NA

Structure of Government

• Organizational structure with Ministries, Government Office and Ethnic Committee
• Members consists of PM, Vice PM

• PM elected via NA.
• Vice PM are approved by the NA, then appointment and removal occurs

Assistants

• Function as assistants and may operate without the presence of the PM
• Ministerial level bears responsibility for the State management of relevant sectors

Functions of Government

• Most important form of government is meetings
• Regular basis, special, or requests from the President
• Majority is needed

Operations of the Prime Minister

• Manage Government systems while being responsible to the National Assembly
• Reports back to the President and standing committees

Deputy Activities

• Assistants to PM, performing tasks
• The Prime Minister has to follow operations effectively with other members of government

Government Powers

• Organizing the implementation of constitutional laws
• Right to issue legal documents, implement law, implement assigned power, perform delegated duties

Ministry

• Gov-organs to act in relation to performing certain industries, sectors and civil sectors within the nation
• Second, agencies manage through operations of 2 different functions
  • Operations in a statewide sector
  • Operations of management through public statewide sector

Structure

• Including departments, offices, bureaus/general departments, public non unit business
• Divided into 2 groups, orgs that minister and a public non unit business
  • Ministry office - sector policy search

Most operations

• Inspection and directives over agencies to individuals under
• Second-most operations - civic servant employee that hold positions

Responsibilities of Ministry

• Have to resolve govt. tasks, work with the government and together decide on issues
• As the head they can direct activities of a ministry, responsible over the sector

Communities legal status

• Selected by the Peoples Council which is a legal body
• Responsible to perform tasks designated assigned

Responsibilities for people community

• Sign decisions, conduct activities from that location
• Vice are responsible within their position
• Commute are only in charge of the sector

Agency legal power

• The right to regulate legal documents
• Head has the right to oversee elections of Vice Chair
• Transfer work

Committee Rights

• Chairman of the agencies has a right to suspend the implementation in authority
• Position power to determine what will occur for specialized agency

Structures

• Agencies are organized towards operations in what aligns with 2 way subordination
  • Subject to inspection of Committee
  • Subject to direction in sector

State Agencies

• The power to advise and offer the best management practices over activities in the sector

The People's Committee

• The Chairman has the right to issue legal documents

Cadres

• Citizens elected can hold and work for state departments at a certain level.
• Works on party levels, and are paid from the budget

Elements

Cadres

• Citizens
• Works in communist parts
• Formed via elections
• Works towards a term
• Paid on budget.

Civil Servants

• Citizens are recruited with titles and posts
• Other than officers people work for civil jobs
• The leading apparatuses are salaried

Characteristics

• Working for district level and higher.
• Formed by recruitment
• Servants works for police units, and army units

Responsibility

• Cannot affect other peoples work, ethics.
• Cannot make actions that impact the organization
• Imposed and has to be fair, the order has to be followed.

Steps

• Meeting to discuss actions, decisions need to be made
• To make sure that steps are discussed, the competent action is taken

Limitations

Following things are not Included

• Measure are not in consideration, prosecution etc and until final substitute is created.

Business Units

• Orgs via, state, and serve state management to be public employee. -Characteristics:
• Subordinate units
• Invested by the State
• Established to provide non units
• Operates headships, recruited by job position

Protections

• Right to be protected when performing activities
• Paids match
• Enjoy holidays and annual leave, reasons to take holidays
• Activity is limited to hours

Requirements

• Be citizens to register for recruitment
• Possess skills that is relevant, fit, reach to be a requirement
• Be limited in capacity
• Committing civil actions
• Under criminal sentence, send to another rehab, etc

Discipline

• Terms apply to limitations for everything, and apply to actions
• Administrative Enforcement*: A form of administrative action to restrict individual rights

Characteristics of administrative enforcement

• Enforcement restricts certain freedoms of entities
• Applied by competent people of state power
• Aims to fulfill illegal actions that have no violations

Administrative preventive measures that is enforced is under different legal enforcement.

Types of directives

• Checking documents, when suspicion lies, in addition inspection of goods, ensuring the safety of others.
  • Required for food and services
• Also in emergency circumstances the requirements from the state

Restrictions

• Prohibition from entering epidemic areas. An action to restrict people.

Handling Violation

Holding of persons according to procedures

Has applicable cases with time limits

To Deter

• Applicable cases
• Time limit
• Written decision must be made
• Administrative violations*
• What is forbidden. Requires sanction

Actions

• Actions include violating, committing fault, and infringements
• Actions that impact entities, the state and safety
• Liability to bear action and must meet standards of law.
• Limited impact
• Limited sanctioning of violations

Sanctions

• Caution, Depriviation, Confiscation'
• Each factor means something depending on level
  • Ex, Caution on those involved in minor actions
  • Each level has its rules such as average find

Principles

• Violations must align in what law sets
• The ones responsible have to commit, and the proper methods
• Limitation relies on if sanction is counted/detected, follows rules if its years or if its specific type and what occurs during time. Follows regulations

Administrative Violations

• Is a crime, and must be done under state law
• Must have a violation which needs proper liability
• Proper methods must occur

Actions to Violations

• Illegal, damages, cause, time means
• Has to be done in intentional fault via motive and purpose
• All people involved are sanctioned in various roles
• Interest in what law protects

Consequences of Violation

• Is against the state, and liability to face coercive measures to get sanctioned