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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THI LE THU LAW ON CADRE IN VIETNAM TODAY Major : Constitutional and Administrative Law Code : 38 01 02 SUMMARY OF DOCTORAL THESIS OF LAW HA NOI - 2019 The work was completed at GRADUATE ACADEMY OF SOCIAL SCIENCES Scientific Supervisor: Assoc Prof., Dr Le Van Long Dr Hoang Thi Ngan Reviewer 1: Prof Dr Pham Hong Thai Reviewer 3: Assoc Prof., Dr Nguyen Van Manh Reviewer 3: Assoc Prof., Dr Tran Thị Thuy Lam The dissertation will be defended before the thesis review council of the Academy at the Graduate Academy of Social Sciences At , on date: , month: , 2019 The thesis can be found at National Library of Vietnam and Library of Graduate Academy of Social Sciences PREFACE The necessity of the thesis In the organization and operation of the state apparatus in any country, at any time, human always play a particularly important role Therefore, attributing an importance on human resources in order to gather qualified, professional staff with sense of high responsibility in implementation of public service is fundamental In Vietnam, along with the process of completing the state apparatus, the system of legal documents on cadres and civil servants in our country is always paid special attention to amending, supplementing and creating a legal basis for building and developing cadres and civil servants in order to contribute to improving the effectiveness and efficiency of state management and serving the people However, in response to urging requirements of national renovation career, other than the achievements, there have been some certain shortcomings and limitations in building and development the cadres, civil servants and officials There are many reasons for this fact, including law on cadres, civil servants and officials in general, the law on cadres in particular due to its incompletion and asynchronism; especially from the institutional perspective, the current law has not clearly differentiated the objects as cadres and civil servants Throughout the process of formation and development of the law on cadres and civil servants in Vietnam since 1945 until now, the provisions on legal status and management content for cadres and civil servants have always been paid special attention to supplementation and completion relatively synchronously and fully; however, cadres and civil servants have not been differentiated and identified clearly, the specific regulations for cadres are very few and asynchronous Many contents of cadre management are integrated in the general adjustment mechanism between cadres and civil servants, resulting in difficulties and obstacles for management of cadres There are still open contents because there is no norm of regulation law; Management of cadres is mixed between law, regulations, rules of the Party and socio-political organizations Therefore, in order to improve effectiveness and efficiency of state management, the important and urgent issue is to promote the role of law to establish order and discipline in building and developing the cadres, civil servants and officials, to meet the requirements of building a socialist law-governed state of Vietnam, reforming the administration and international integration From the foresaid analysis, researching "Law on cadres in Vietnam today" has an urgent meaning both in theory and practice to clarify the role and characteristics of cadres as the subjects for adjustment of the law in comparison to other subjects as civil servants and officials; assessing the completeness and fullness of the legal regulations on cadres to ensure evaluation, use, development and settlement of responsibilities for the cadres 2 The research purpose and tasks of the topic 2.1 The research purpose The overall purpose of the topic is scientific proof for solutions in order to improve the law on cadres in Vietnam on the basis of clarifying theoretical issues as well as the real status of law on cadres in Vietnam today 2.2 The research tasks - A set of typical research projects related to the thesis topic has been publicized; Analyzing and commenting to identify the issues solved by the authors that the thesis may inherit and the thesis’s gaps will have to be resolved - Systematizing theoretical awareness of law on cadres - Analyzing and assessing the real status of law and practical implementation of the law on cadres in our country from different viewpoints - Proving the objective necessity of improving the law on cadres in Vietnam today; on that basis, determine the viewpoints and propose specific solutions to improve the law on cadres in our country today Objects and studying scope of the project 3.1 The objects of the study The thesis studies the theoretical and legal issues of cadres in our country today 3.2 Studying scope - In respect of content The thesis only focuses on analyzing the basic contents of the law on cadres in general (not studying the laws on each title of cadre), including: Regulations on determining objects of cadres; regulations on the process of election, approval, appointment, planning, transfer, rotation and evaluation of cadres; regulations on rights and obligations of cadres; regulations on responsibilities of cadres; regulations on conditions, criteria and ethical standards of cadres; regulations on conditions to ensure performance of cadres’ public services and duties - About space: Nationwide - About time: From 1945 until now, mainly focusing on the period from issuance of Law on Cadres and Civil Servants in 2008 to now Methodology and studying methods 4.1 Methodology The thesis uses methodology of dialectical materialism and historical materialism, applying the viewpoints of Marxist-Leninist doctrine, Ho Chi Minh's thought as well as the guidelines of the Party and the policies of the Vietnamese Government on the Government and the law, construction and development of cadres in our country today 4.2 Studying methods The thesis uses a number of specific studying methods such as analysis, comparative summary and history to apply to in each chapter of the thesis New scientific contributions of the thesis Firstly, approach from a angle of public affairs, the thesis studies the issues of theory and law on cadres comprehensively The thesis analyzes and gives concepts and characteristics of cadres Since then, the thesis continues to build the concept of law on cadres, pointing out the characteristics of the law on cadres and analyzing roles as well as the basic contents of the law on cadres in our country Secondly, the thesis has generalized, analysed and clarified the adjusted contents of the law on cadres through phases, especially the current law on cadres in our country today; give specific and systematic assessments about the real status of law on cadres Thirdly, from a studying viewpoint, the thesis proposes views and solutions to improve the law in compliance with the political, cultural and social characteristics of our country In particular, there is a new proposal to issue a separate law on cadres The theoretical and practical significance of the thesis - Studying results of the thesis contribute to clarifying, giving a more comprehensive, profound, scientific and practical viewpoint of theory and law on cadres in Vietnam, contributing to building a theoretical and practical basis for continuing to improve the law on cadres in Vietnam - Studying results of the thesis can be used as reference for researching and teaching activities at training and improving institutions for cadres and civil servants At the same time, the thesis is also a reference source for relevant agencies and organizations in organizing implementation of laws in relation to management of cadres and civil servants The structure of the thesis Other than the preface, conclusion and list of materials for references, the thesis content consists of chapters: Chapter 1: Overview of study situation related to the topic and the issues to be studied of the thesis Chapter 2: Theoretical issues of law on cadres in Vietnam Chapter 3: Current situation of law on cadres in Vietnam today Chapter 4: Improving the law on cadres in Vietnam today Chapter OVERVIEW OF STUDY SITUATION RELATED TO THE TOPIC AND THE ISSUES TO BE STUDIED OF THE THESIS 1.1 Overview of study situation relates to the topic 1.1.1 Group of studying works related to regime of public affairs and cadres, civil servants Representative researchs: National level project "Develop forces of Cadres and Civil Servants in order to meet the needs of Socialist Law- Governed State - of the people, by the people, for the people" led by PhD.Thang Van Phuc; Ministerial level project "Reformation of Vietnam Public Administration nowadays - Situations and Solutions" led by Assoc.Prof /PhD Trinh Duc Thao; Ministerial level project "Theoretic and Practical fundamental problems of Vietnam Public Administration from 2006 to 2015 " led by Assoc.Prof/PhD Vu Thu; Book "Building the Socialist Law-Governed State in Renovation period" by group of Nguyen Van Yeu, Prof.PhD Le Huu Nghia (coeditors), National Political Publishing House, 2006; Book "Reformation of Vietnam Administration, Situations and Solutions " by United Nations Development Programme (UNDP), Political Publishing House, 2009; Reference book "Human Source Policies of certain countries" Ministry of Home Affairs, 1994; Book "System of Public services and reformation trend of certain countries’’ by Thang Van Phuc, Nguyen Minh Phương and Nguyen Thu Huyen (co-editors), National Political Publishing House, 2004; Jurisprudence Doctoral Thesis "Legal education for the force of cadres and civil servants during development of Socialist Law-Governed State of Vietnam " by Nguyen Quoc Suu, Vietnam National University, Faculty of Law, 2010; Doctoral Thesis of Public Administration Management "Theoretic and Practical basis of liability, right and responsibility of Vietnamese civil servants " by Le Nhu Thanh, National Academy of Public Administration, Hanoi, 2009; Doctoral Thesis of Philosophy "Responsibility of Public services and ethics of Vietnamese civil servants nowadays" by Cao Minh Cong, Vietnam Academy of Social Sciences, Ha Nội, 2012; the essay "Improving quality of performance of Cadres, Civil Servants and Public Administrative Agencies in order to develop and perfect Socialist Law-Governed State of Vietnam " by MA Le Van Quyen, State Organization Journal, No 5/2012; the essay "Problems within Public Service" by PhD Hoang Thi Ngan, State Organization Journal, No 2/2011; the essay "Position-based education and improvement for Cadres and Civil servants" by PhD Dao Thi Ai Thi, State Organization Journal, No 198(7-2012); the essay ‘Develop the force of cadres and civil servants to meet the requirements of Public Administrative Reformation in the period of 2011-2020 " by Luu Hai Dang, State Organization Journal, No 4/2012; the essay "Educating and Improving the Cadres and Civil Servants from the viewpoint of a variety of results and evaluation figures", by Doan Van Dung, State Organization Journal, No 7/2012; the essay "Improving the performance capacity of the cadres and civil servants - A challenge to Vietnam Reformation nowadays", Assoc.Prof/PhD Vo Kim Son, State Organization Journal, No 200 (9-2012); the essay " Force of Qualified Cadres and Civil Servants for construction of a strong, effective and efficient government", PhD Bui Huy Khien, State Organization Journal, No 199 (8-2012); the essay "Renovate, improve quality of Management of Cadres and Civil Servants during Renovation Period" by Tran Dinh Thang and Nguyen Phuong Thuy, State Organization Journal, No 7/2012; the essay " Educate and Improve the force of Cadres and Civil servants - A specific and specialized form of education" by Assoc.Prof/PhD Luu Kiem Thanh, State Organization Journal, No 201(10/2012); the essay "Improving quality of the force of Cadres and Civil Servants in order to meet the requirements of developing the Socialist LawGoverned State of Vietnam " by MA.Nguyen Hong Chuyen, Democracy and Law Magazine, No 7(256), 2013; the essay "Evaluate, employ Cadres and Civil Servants in certain countries" by Le Quang, Communist Party Development Magazine), No 6/2009; Year book of International Seminar "Tendencies and Experiences of Management on Civil Servants from certain countries" held by Ministry of Home Affairs, Asian Development Bank organized in HaLong City, Quang Ninh province, 2006 In general, these works focus on analyzing the theoretical issues and the real status of regime of public affairs and cadres, civil servants in Vietnam in order to propose solutions to build a force of cadres and civil servants meeting the requirements of administrative reform and building a socialist law-governed state in Vietnam today Furthermore, it is necessary to mention researches on the national personnel regime of foreign authors regarding reform of public service system in the countries today in the trend of shifting from traditional administration to modern administration and development… 1.1.2 Researches related to Laws on Cadres and Civil Servants Ministerial level research-project "Completion of laws regarding responsibility of the leader director of Vietnam administration agencies nowadays - Situations and Solutions", 2009 by Institution of State and Law of Ho Chi Minh National Academy of Politics;- Grass-root level project "Responsibility of the leader director of Vietnam administration agencies Theory and Practice" led by Nguyen The Tai as the chairman, 2011; Monographic book " Laws on Cadres and Civil Servants at commune-level in Vietnam - Theoretic and Practical Issues", (Politics and Administration Publishing House), MA Mac Minh San; Book " Responsibility of Civil Servants for provision of public service during State Administrative Reform", National Political Publishing House, 2017, PhD Tran Nghi; Jurisprudence Doctoral Thesis "Completion of legal regulations on public service, civil servants in Vietnam nowadays" by Lương Thanh Cuong, Faculty of Law, Vietnam National University, 2008; Jurisprudence Doctoral Thesis " Renovation and completion of Law on Civil Servants in our country", by Nguyen Van Tam, 1997; Jurisprudence Doctoral Thesis "Completion of laws on recruitment and nomination for civil servants in our country." by Nguyen Quoc Hiep, Institute of State and Law Vietnam Academy of Social Sciences, 2006 Jurisprudence Doctoral Thesis "Completion of laws on civil servants, public service to meet the requirements of the State administrative reform", by Ta Ngoc Hai, Graduate Academy of Social Sciences, 2011; Jurisprudence Doctoral Thesis "Civil servants’ legal liabilities in the course of construction of the law-governed State of Vietnam nowadays " by Ngo Hai Phan, Ho Chi Minh National Academy of Politics, 2004; Jurisprudence Doctoral Thesis "Material responsibilities of civil servants Under the Law of Vietnam nowadays" by Tran Thi Hien, 2008; Doctoral Thesis of Public Administration Management "Responsibilities of the leaders of Vietnam administration agencies " by Bui Thi Ngoc Mai, National Academy of Public Administration, 2015; the essay "Discuss legal reforms on salaries of cadres, civil servants in Vietnam today" by Le Thi Thanh, Journal of State and Law, No 1/2013; the essay "Law’s amendment on ethics of public service in Vietnam" by Prof/PhD Pham Hong Thai, Legislative Research Magazine, No 5/2010; Monographic book "Public service's regulations" by PhD Nguyen Canh Hop, Judicial Publishing House, 2011; Scientific Seminar "Competence and responsibility of heads of the executive committee and authorities in the relation to collective executive committee, agencies and units" jointly organized by Communist Review and Central Organization Commission, Bac Ninh Provincial Committee of the Party on 28/6/2012 Furthermore, it may refer to some articles and magazines written about the responsibilities of heads of State administrative agencies such as "Differentiating positions, roles and functions of the Government and the Prime Minister" by the author Nguyen Phuoc Tho, posted on http://xaydungphapluat.chinhphu.vn on 8/5/2008; the article "The regime of civil servants, public services and the responsibilities of the heads of administrative agencies of some countries" by Pham Duc Toan, Le Dinh Mui, published on State Management Magazine, No 176 (September/ 2010), p.72-76; The article "Renovating the operation organization of administrative agencies, strengthening the rights and responsibilities of the heads of agencies" by Nguyen Van Thao posted on the Information on State Administration Reform of Ministry of Home Affairs, No 12/2007 ; the article "Perfecting the law on public service, civil servants and legal responsibilities of the civil servants" by Thai Vinh Thang, published on Journal of Legislative Studies, No 02/2005, p 24-32; The article "Public affairs and public responsibilities in the Law on Cadres and Civil Servants" by Mr Tran Anh Tuan, published on Journal of State Organization, No 11/2009, p 6-10; the content "Overview of the legal responsibility regime of cadres, civil servants and officials" in the Curriculum of Vietnam Administrative Law, 2008; The book "The World’s affairs - a View" by Nguyen Sy Dung, Knowledge Publishing House, 2007, including the contents about legal and political responsibility, p 34-37; the article "Clarifying the responsibilities in state administrative management" by Tran Thi Thanh Mai, published on the Journal of State Organization No 11/2010 "The use of labor and employment in the public sector expansion - Province of British Columbia" by Anne Richmond scholar - an expert from Canada's Policy Implementation Assistance Project (PIAP), presented at the scientific seminar "Law on Officials", jointly organized by the National Assembly's Law Committee and the Policy Implementation Assistance Project (PIAP in Hue on 11-12 March 2010 The researches in this group directly mention adjustment of the law on cadres and civil servants, thereby interpreting orientations and solutions to improve the law on cadres and civil servants in general and the law on officials.in particular 1.2 General evaluation of studying situation in relation to the thesis's topic 1.2.1 The research results inherted and developed by the thesis - The published researches mentioned and analysed some contents about cadres and civil servants; organization of personnels and orientations to improve management efficiency of cadres and civil servants, thereby clarifying some issues of cadres and civil servants in both institutional and practical angles of implementation of law The published researches also directly and indirectly referred to the law on cadres in our country in many different angles This is a starting point and an important premise of the thesis for researching and analysing theoretical and practical issues about cadres in the context of speeding up completion of institutions and building the socialist law-governed state in our country - The above-mentioned scientific works have also contributed to clarify the theoretical and practical issues of management of cadres and law on cadres against the requirements of life Among them, many interpretations, scientific contentions have been applied to the practice and obtained positive results, such as: renovation of recruitment and nomination of cadres; reform of salary policy; - Many researches have relatively generalized the current situation of cadres, civil servants and officials; shortcomings and inadequacies in the institution of management of cadres in our country; scientific principles and experiences in organization of public service activities of some countries in the world thereby enabling the author to study and compare with the current status of cadres in our country and can explain and propose some solutions to improve the law on cadres; improve the quality of state management of cadres in our country 1.2.2 The issues that have not been thoroughly resolved should be further studied Basing on inheritance and selection of previous studying results, the thesis continues to study and solve the following specific issues: Firstly, theoretically, it must be clarified: - What is the law on cadres; analysing the characteristics and contents of the law on cadres; clarifying the role of law on content and in Vietnam - Analysing and clarifying the influencing factors as well as conditions to ensure implementation of law on cadres in Vietnam - Studying the law on cadres and civil servants in some countries in the world, learning about some experiences for completion of the law on cadres in Vietnam Secondly, practically focus on the following issues: - Overal researching the development process of law on cadres in Vietnam from 1945 to present - Analysing and assessing the current status of the law on cadres in Vietnam, pointing out the advantages to be promoted, and finding out the limitations and causes of the limitations Thirdly, proving the necessities of completion of the law on cadres, identifying viewpoints and proposing solutions to upgrade the law on cadres in the context of building the socialist law-governed state and international integration Theoretical proofs of viewpoints and propose specific and comprehensive solutions in order to improve the law on cadres in Vietnam today 1.2.3 Research hypothesis and questions 1.2.3.1 Research hypothesis The law on cadres in Vietnam, if sufficient, appropriate and wellorganized, will create a premise and a basis for ensuring the quality of the cadres, contributing to enhancing the quality of human resources of the Vietnamese political system today The law on cadres in Vietnam has been formed but there are still gaps and low possibility of realization Therefore, improvement of the law on cadres in Vietnam is becoming an urgent issue, which is one of the decisive factors in the process of building and improving the quality of cadres, civil servants, making significant contribution to the success of renovation of the political system in Vietnam today 1.2.3.2 Research questions To implement the topic, the thesis needs to solve the following research questions: - What contents the law on cadres in Vietnam consist of and which factors is it affected by? - What is the current status of the law on cadres in Vietnam? What are the advantages and limitations? What are the causes of such advantages and limitations? - To perfect the law on cadres in Vietnam, which solutions and opinions should it be based on? 11 Thirdly, the law must ensure compatibility between the factors: Obligations - Rights - Responsibility of the cadres This requirement means that the cadres cannot only accept their rights but does not fulfill their obligations and take no responsibility; it is also impossible to require the cadres to fulfill their obligations and take responsibility without giving them adequate rights and interests Three elements of Obligation, Rights and Responsibility of cadres must always be jointly established in a close and compatible relationship 2.2.2 Content of the law on cadres 2.2.2.1 Conception of the content of the law on cadres The content of the law on cadres is understood as the specific rules of conduct issued by the State in the form of legal documents regulating social relations in relation to the legal status of cadres Legal status of cadres is the overall rights and obligations that create the position of cadres in relation to other legal entities based on the legal provisions Through the legal status of cadres, it is possible to distinguish and assess the position and importance of cadres with other subjects (civil servants and officials) as well as the duties, rights and responsibilities of cadres in performance of the public affairs and assignments The legal provisions on the legal status of cadres include: Scope of subjects as cadres; conditions and criteria to be appointed as officials; rights, obligations and responsibilities of cadres; management principles of cadres; reward and discipline of cadres All these regulations constitute the content of the law on cadres 2.2.2.2 The basic contents of law on cadres Basing on the provisions of the current law, it can be seen that the contents of the law on cadres consist of the following basic contents: Firstly, identify the subject of cadres Secondly, regulations on the process of election, approval, appointment, planning, transfer and rotation on cadres Thirdly, regulations on the rights and obligations of cadres Fourthly, regulations on the responsibilities of cadres Fifthly, regulations on conditions, standards, ethical standards of cadres Sixthly, regulations on conditions to ensure performance of public services and duties of cadres In brief, with the contents of the law on cadres as mentioned above, it can be seen that the regulation of law on cadres is very diversified and plentiful The regulations governing the operation of cadres are not only reflected in the legal documents on cadres and civil servants in general, such as the Law on Cadres and Civil Servants; decrees, circulars guiding the implementation but also expressing in many other legal documents related to 12 the titles and positions of cadres, the nature of public services and duties of cadres such as: Law on Organization of National Assembly; Law on Organization of the Government; Law on Anti-Corruption; Law on Thrift Practice And Waste Combat 2.3 Factors affecting law on cadres in Vietnam 2.3.1 The Party's guidelines and policies on the importance of cadre work The Party's guidelines and policies have an important influence on the construction and completion of the law in general and the law on cadres in particular The Party’s guidelines and policies impacting on construction and improvement of the law on cadres are expressed in two aspects: i) The Party's leadership guidelines on improvement of law; ii) Party’s leadership guidelines on building cadres The legal documents under the orientation of the Party are supplemented and revised by competent state agencies to adjust appropriately and timely in proportion to each stage of development of the country 2.3.2 Policies of construction and development of cadres and civil servants, especially cadres In cadre work, the right and rational policy system will encourage cadres to be active, enthusiastic, devoted to their work, improve their sense of responsibility and work ethics The promulgation of appropriate and timely policies will contribute to building a formal and modern civil service with a strongly political contingent, exemplary morality, and good lifestyle as well as intelligence, knowledge and practical operation capacity, sticking with the citizens The system of State policies has contributed to the improvement of professional qualifications as well as material life of cadres in such aspects as: Policies for attracting and recruiting employees; policies on training, retraining, salary policies, preferential regimes, etc 2.3.3 The awareness of competent authorities in advising and promulgating legal documents on cadres Only when the authorities are aware of the importance of issuing legal documents on cadres, they are able to organize effectively the construction of documents The contingent of staff involved in the development and promulgation of legal documents on cadres requires a thorough understanding of the party's policy directions and views on cadre work in order to ensure proper institutionalization, sufficient and feasible while the legal normative documents are issued and implemented in social life 2.3.4 Organizational structure and capacity of advisory agencies in creating legal documents on cadres The specialized agencies of the competent agencies issue the legal documents, in addition, human factors play a crucial role in the promulgation of legal documents and significantly affect on the quality of the documents 13 2.3.5 Mechanism of coordination among relevant agencies in advising on building and promulgating legal documents on cadres The process of issuing legal documents includes many stages and successive steps based on strict order and procedures prescribed by law Therefore, in order to ensure the quality and effectiveness of the promulgation of legal documents, it is necessary to have close and effective coordination among relevant agencies Chapter CURRENT SITUATION OF LEGAL REGULATIONS ON CADRES IN VIETNAM 3.1 The process of formation and development of legal laws on cadre in Vietnam in the year 1945 up to present 3.1.1 The period from 1946 to 1959 After the successful August 1945 Revolution, the Democratic Republic of Vietnam was born In order to have a dedicated staff of the Government and benefit for residents, the Republican Democratic Republic signed the Decree No.188 / Law and Decree No 76 / Law regulating public servants under the professional regime with democratic and scientific contents, however, under the legal perspective, these provisions have not yet about "cadres" In the social life, the term "cadre" is now used to refer to those involved in revolution, working in state agencies, Communist Party agencies, political and social organizations, enterprise belonging to the state’s manufacturing sector 3.1.2 The period from 1959 to 1980 During this period, the term "cadre" was mentioned in a number of legal documents, although there were provisions to classify officials and employees, but from a legal perspective, the use of terminology officials are still associated with the position system in administrative, career and enterprise agencies and associated with training expertise ("technical staff" or "professional staff") At this time, it was noticeable that for the first time the 1959 Constitution provided for a principle of obligation to officials With the promulgation of a number of legal documents at this stage, it can be said that the law on cadres had completed a step and created a basis for the management of staff, workers and employees during the peaceful period interfered by the war time However, the scope of the subjects was officials who did not have a clear distinction between other workers in state agencies, Party agencies, socio-political organizations and state-owned enterprises which were collectively referred to in the concept of "state officials and employees" 14 3.1.3 The period from 1980 to 1992 During this period, the introduction of the 1980 Constitution created a legal basis for the improvement of the law in general and the law on officials in particular in the context of national unification The 1980 Constitution mentioned the concept of "state employees" (Article 8) and "state officials" (Article 107), but there were no legal documents specifying which subjects were State employees and those who were government officials, the term "state officials and employees" continued to be a general concept for people working in the state apparatus from central to local levels In general, during this period, although the competent authorities had issued a number of new legal documents, basically, the law on cadres still had not completed significantly compared to the previous period In particular, there was still no clear distinction between the subjects who were officials but still existed the concept of "public employees" or "officials, workers and employees" so that there were regulatory provisions peculiarities in management and use of "officials, workers and employees" according to ranks and grades Initially, it was possible to distinguish between civil servants and other officials and employees working in state agencies, Party and mass organizations 3.1.4 The period from 1992 to 2013 This was the period marked by the renovation of our country and the promulgation of the 1992 Constitution - the Constitution of the renovation period according to the Resolution of the 6th National Congress of the Party (12/1986) In this period, it was noticeable that the documents with high legal value stipulate about officials and public servants below: - Ordinance on cadres and civil servants in 1998 on February 26, 1998, Standing Committee of the 10th National Assembly approved the Ordinance on Cadre and Civil servants (effective from May 1, 1998) and guiding documents have created a relatively legal framework to improve the adjustment of issues of cadres and civil servants and create a basis for building a contingent of cadres and civil servants to meet the requirements of organizational renewal and operation of the state apparatus However, according to the Ordinance on Cadre and Civil servants in 1998, cadres and civil servants have not been separated and collectively referred to as "cadres and civil servants", so there is no clear separation of the rights and obligations between cadres and civil servants - In a period of years, the Ordinance on Cadre and Civil servants in 1998 was amended twice, namely: Ordinance on amending and supplementing a number of articles of the Ordinance on Cadre and Civil servants on April 28 2000 and the Ordinance amending and supplementing a number of articles of the Ordinance on Cadre and Civil servants on April 29, 2003 15 - The important milestone in the law on civil servants in general and the law on cadres in particular was the birth of the Law on Civil Servants and Civil Servants in 2008 and its guiding documents With the system of abovementioned legal documents, especially the Law on Cadres and civil servants in 2008, there was a distinction, clarifying "cadre" with other subjects as "civil servants", "officials" 3.1.5 The period from 2013 up to present Currently, in addition to the provisions of the 2013 Constitution, the current legal regulations on cadres have been reflected in many legal documents 3.2 The basic contents of the current legal law on cadres in Vietnam 3.2.1 Regulating the subject is cadre This is the first content that necessitates to be determined In fact, the current laws not have direct regulations on the subject of cadres, except for civil servants Therefore, the identification of officials through the Law on Cadres and civil servants should use the method of eliminating the subject of civil servants under the Decree No 06/2010/ND-CP dated on January 25, 2010 regulating those who are civil servants 3.2.2 Regulations on election, approval, appointment, planning, transfer and alternation of cadres Thus, the Law o Cadres and civil servants only regulates general issues related to the arising, change and termination of relations on rights, obligations and responsibilities of cadres, in order to implement and specify the above-mentioned issues, it is necessary to pursuant to the referenced provisions of relevant legal documents The planning, transfer and alternation of leading officials at all levels are mainly carried out in accordance with the Party's regulations 3.2.3 Regulations on rights and obligations of cadres - Cadres' rights: cadres have rights and interests and conditions to ensure the performance of certain tasks and missions, such as: right to guarantee the conditions for performing public duties; Salary and salaryrelated issues; right to have a rest; other rights of cadres and civil servants - Cadres’ obligations: The obligations of cadres can be divided into many groups such as: Obligations to the Party, State and people; Obligations in performing public duties; Obligation as the head 3.2.4 Regulations on the responsibilities of Cadres Responsibilities of cadres are regulated in the following basic aspects: - Responsibilities in implementing tasks and rights according to the provisions of the Constitution, laws and charters of organizations where cadres are members - Responsibility to the Party, State, people and competent state agencies and organizations on the performance of assigned tasks and powers 16 - Legal responsibility of cadres This is a group of responsibilities showing the adverse consequences that cadres have to bear when committing activities against the law, showing special relationship between cadres and the Party, State and People There are following legal responsibilities: + Disciplinary responsibility of cadres; + Criminal responsibility; + Compensation responsibility to the State 3.2.5 Regulations on cadre evaluation The evaluation of cadres includes 05 contents: abiding by the Party's guidelines and policies of Communist Party and State's laws; Political and moral qualities, lifestyle and working style; Capability of leadership, management and implementing tasks; Responsibility in work; Results of performing assigned tasks 3.2.6 Regulations on conditions to ensure the performance of public duties, tasks and honoring, rewarding cadres In order to ensure the effective implementation of official duties and duties of cadres and civil servants, the Law on Cadres and civil servants stipulates the rights of cadres In addition, due to the positions and titles undertaken, cadres are also assured of the certain conditions and remuneration for official-duty houses; equipment for working in offices; vehicles for public service In terms of the content of commendation, the law on cadres stipulates that cadres with meritorious achievements in public service shall be commended and rewarded according to the provisions of law on emulation and commendation If cadres are rewarded for their outstanding achievements or merits, they shall be entitled to a wage increase before the expiry date and shall be given priority when considering the appointment of higher positions in case there is a demand of, organizations 3.3 Assessment of curret legislation on cadres in Vietnam 3.3.1 Advantages and reasons leading to those advantages 3.3.1.1 Advantages Firstly, the current law on basic cadres has been completed to meet the requirements of adjusting the performance of civil servants' duties and duties as well as contributing to ensuring the effectiveness of cadre management This is clearly reflected in the increasing number of legal documents on cadres, especially there are many legal documents with high legal value (law) and issues of cadre arrangement need to be more diverse and comprehensive Secondly, the content of legal regulations on cadres has covered the basic issues, thus creating a relatively adequate legal basis for adjusting the behavior of cadres when participating in social relations in public services 17 Thirdly, from a practical perspective, the law on cadres has created a basis for building a contingent of cadres to meet the requirements of constructing a law-governed state and international integration in our country today Fourthly, regarding the quality of cadres and general evaluations, it can be seen that the contingent of cadres in our country has shown a strong political capability and the capacity to perform public duties 3.3.1.2 The reasons of these advantages - The consistency of the Party's and State's policies and guidelines on building and perfecting the legal system in general and the law on cadres in particular in terms of renovation and constructing a socialist law-governed state is both the reason and the premise for perfecting the law on cadres - The timely leadership and direction of Party committees from the central to local levels and the direction and administration of state agencies in implementing the targeted objectives in the organization of personnel - The Consensus, participation and support of the political system and the people in the process of completing and implementing the law on cadres 3.3.2 Disadvantages and causes 3.3.2.1 Disadvantages First, the current law on cadres has not really given a clear concept of "cadres" in order to distinguish them with other people working in the Party, State and socio - political organizations In addition, because there is no clear and scientific separation between cadres and civil servants, the current laws not have clear criteria to distinguish the cadres working in the Communist Party of Vietnam, the State agencies with those who work in socio-political organizations according to the characteristics of the assigned tasks and missions Second, the legal regulations on cadres are scattered in many different documents and lack of uniformity and consistency Third, the constitutionality and legality of the law on cadres are not really guaranteed Fourth, the current law on cadres regulates too many focal points with different authorities, so the management and evaluation of cadres are overlapping and complicated Fifth, the election, approval, appointment, evaluation, use, transfer, alternation, dismissal of cadres have many problems and shortcomings Sixth, there are many shortcomings in the legal regulations on disciplining of cadres Seventh, the implementation of the law on cadres in the past also has certain shortcomings and limitations 18 3.3.2.2 The causes of the disadvantages - The construction of the law in general, the law on cadres in particular is based on economic and social foundation, limited in budget, centralized management mechanism, bureaucracy, subsidies and administrative orders - Considering from the perspective of state management, the State has no clear and transparent legal thinking in developing and promulgating legal regulations to specifically regulate cadres as well as for civil servants, therefore, the regime, policies, rights and obligations between cadres and public servants are currently not clearly defined - The adjustment of the law on cadres is not based on the nature of the official duties, cadres' duties and the characteristics of each agency or organization Especially, there are currently no regulations to separate between cadres working in the Party and socio - political organizations and those working in state agencies in general and state administrative agencies in particular Chapter COMPLETION OF THE CURRENT LAW ON CADRES IN VIETNAM 4.1 The necessity of completion of the law on cadres in Vietnam Stemming from the requirement of building and developing the country and the current legal status of cadres, the improvement of the law on cadres is inevitable in order to meet the objective requirements of the need for renewal of the main system treatment in our country today 4.1.1 Institutionalizing the Party's guidelines and policies on cadres working in the new situation In the coming time, it is necessary to continue to appreciate the importance of the institutionalization and concretization of the process in organizing the implementation of the Party's undertakings and resolutions on organization and cadres Cadres' strategies should be specified and institutionalized into legal documents, creating a unified legal basis for the organization of implementation It is important to have the specific mechanisms for cadres, party members and people to actively participate in cadre work and supervision of cadres, etc 4.1.2 Meeting the development requirements of the market economy and international integration The development of the socialist-oriented market economy and international integration in our country has been focused on research In order to achieve this goal, it is necessary to improve the legal system, mechanisms and policies and create a synchronous legal basis This depends mainly on human resources - policy makers and law makers and ensuring the 19 implementation of international integration requirements Therefore, it is necessary to create a legal framework for the operation of the cadres, including legal provisions on cadres 4.1.3 Meet the requirements of constructing a socialist law-governed state of the people, by the people and for the people In the law-governed state, the most important requirement is that all activities of the state, organizations and individuals must be on the basis of law Therefore, the improvement of the law on cadres at the request of building a socialist law-governed state in our country has a particularly important meaning to institutionalize the Party's guidelines, views and solutions on cadre work 4.1.4 Meeting the requirements of improving the quality of cadres in the process of industrialization and modernization of the country In order to meet the requirements of industrialization and modernization of the country, the improvement of the law on cadres is the basis for making specific legal criteria to clearly define the legal status as well as the role of cadres and create a basis for building qualified cadres to meet the requirements of the new period 4.1.5 Overcoming the shortcomings and limitations of the current law on cadre In order to overcome the shortcomings and limitations of the current law on cadres, in the context of constructing the current law-governed state, it is inevitable that there must be innovations and improvement of the law on cadres to set up full legal basis in accordance with the criteria of completing the law in general making contribution to improve the effectiveness and efficiency of the political system’s operation in general and the state’s operation in particular 4.2 Viewpoints of completion of the current law on cadres in Vietnam 4.2.1 Completing the law on cadres must ensure a thorough grasp of the Party's views and guidelines on building cadres In order to make the requirements for cadres in the Party's documents come to life, completing the law is an important and urgent issue 4.2.2 Completing the law on cadre must contribute to building a contingent of cadres who really are servants of the people, building a transparent and effective civil service Building and developing the contingent of cadres and civil servants in general and the cadres in particular is a strategic task of our Party and State In order to build a contingent of cadres who meet basic requirements, it is necessary to complete the civil service regime and cadre management mechanism in association with the Party's leadership innovation on cadre work 20 4.2.3 Completing the law on cadre must ensure the inheritance and promote the legal values of cadres in history and international experience in building public service regimes Completing the law on cadres must be included in the overall improvement of public service and selective international experience is an important orientation 4.2.4 Completing the law on cadres must be based on criteria and ensure harmony with the perfection of the general legal system The quality of the legal system is the basis to ensure effective enforcement of the law Therefore, assessing the completeness of the legal system in general and the law on a specific field need to approve the adjusted content of the law with certain criteria to identify and evaluate the adequacy, consistent, consistent and effective of those legal regulations 4.3 Solutions for completion of the current law on cadres in Vietnam Based on the identification of the content and reality of the law of cadres in our country today, it is necessary to pay attention to the following basic solutions 4.3.1 Completing regulations on the title criteria of cadres The completion of the regulations on title standards and cadres rankings should closely follow the objectives of building the cadres for the 2011-2020 period, which has been set according to the Resolution of the 11th Party Congress: "Building teams cadres, civil servants and cadres have good moral qualities and political character They are people who are capable, dedicated to serving the people and have high professionalism " Particularly for cadres and requirements, the criteria set out are: Having a strong, ethical, healthy and non-bureaucratic political character; having innovative, creative thinking, professional knowledge, meeting the requirements of the period of accelerating industrialization and modernization, having a spirit of solidarity, cooperation and a sense of discipline high and scientific working style respects the collective, attaches to the people, dares to think, dare to do, dare to take responsibility Since then, the improvement of the legal documents on standards of cadres should be associated with the positions, positions and titles of cadres to create a basis for the evaluation, management and use of cadres, ensuring accuracy, objectivity and fairness for cadres 4.3.2 Completing the legal regulations on election, approval, appointment, transfer and cadres rotation From the alarming situation of mistakes in the past time, it is necessary to be aware of the risks and harms of weaknesses in cadre work causing the operation of the state apparatus as well as the politic system The important link is to overcome weaknesses; discover and complement the "gaps" in law and institutions, clearly reflected in the planning, rotation and appointment of the past time 21 On that basis, attention should be paid to modifying a number of legal documents along the direction of renewing the planning, promotion, appointment and rotation processes, strictly abiding by regulations on standards, conditions and processes, quantity, age 4.3.3 Finalizing regulations on cadres evaluation The completion of legal regulations on cadre evaluation in the coming time should develop specific criteria and contents based on the results of the assigned tasks, in which cadres need to focus on regulation criteria and contents to prevent and handle responsibilities for cadres who fail to fulfill their tasks, violate discipline and lose credibility with the people Especially, specifying the duties and powers of cadres corresponding to their responsibilities and having a strict regime for acts of law violation, disciplinary violations, and violations of public morals, especially regulations on inspection and supervision of cadres in the performance of duties and duties 4.3.4 Completing regulations on disciplinary cadres It is necessary to issue a decree detailing and guiding the implementation of the provisions of the Law on Cadre and civil servants related to disciplinary action against cadres The decree on disciplining cadres should have the following basic contents: - The general provisions include the scope of adjustment and the object of application (including those who are retired cadres who commit disciplinary violations during the incumbent period), the discipline of disciplining, disciplinary actions, cases that have not yet been disciplined, and cases exempted from disciplinary responsibility - Statute of limitations and disciplinary deadlines - Apply discipline - Jurisdiction to discipline, order and disciplinary procedures - Other regulations regarding disciplinary action 4.3.5 Finalizing regulations on conditions to ensure the performance of public duties and duties of cadres Researching and completing salary policies and remuneration policies, appropriate standards and norms for cadres will ensure to contribute to improving the quality of our cadres in the current period 4.3.6 Completing the regulations on coordination mechanism between the cadre management agency and organizations in implementing and supervising the implementation of the law on cadre It is necessary to build and strengthen the coordinating mechanism of cadre management of Party’s agencies and organizations with the management of agencies and the people's supervision for cadres 4.3.7 Completing regulations on decentralization of cadres management Completing cadre management institutions is considered an important condition to improve the quality and effectiveness of cadres in the current 22 conditions A number of contents to complete the regulations on cadres management should be focused on: completing the regulations on assessing cadres in the direction of associating with results, work efficiency and promoting the responsibility of the head; implement the superior principle to assess the lower level, in accordance with the characteristics and nature of activities of each cadres member; elaborate regulations and monitor and regularly monitor and supervise the performance of tasks of each cadre and civil servant; perfecting regulations on cadres assignment, cadres management decentralization 4.3.8 Completing other legal provisions related to cadres The law on cadres is an important part of the legal system on civil servants and civil servants, so in fact, besides legal documents, there are many regulations and direct adjustments on cadres Legal regulations in other legal documents also indirectly adjust to cadres, so it is necessary to complete the system of these regulations to create as synchronic system of cadre arrangement 4.3.9 Studying and evaluating at the aim to formulate a separate law on cadre Research and evaluation aims to formulate a separate law on cadre, which is the most core issue in improving the law on cadre On the basis of studying the theory as well as the law practice on cadres in Vietnam over the past time, the thesis proposes the following two options: - Option 1: Promulgating the Law on Public Service According to this plan, the Law on Public Service will unify the adjustment of the activities of both cadres and civil servants, clearly defining the scope of subjects being civil servants (including subjects being cadres in State apparatus as at present) Those who work in Party agencies and sociopolitical organizations will be governed under the documents of the Party and socio-political organizations - Option 2: Promulgating the Law on Cadre According to this plan, cadres and civil servants are governed by specific laws, namely the Law on Cadre and the Law on Civil Servant, whereby if based on the public nature of the relationship between the State and citizens, then civil servants may only be working subjects in the agency system in the state apparatus; while the cadres will limit the scope of those who work in the agencies of the Party, political organizations and socio-political organizations Such provision will ensure appropriate, homogeneous relationships between cadres, civil servants and public cadres who are separately regulated by a law (Law on Cadre, Law on Civil Servant and Law on Public Employees), at the same time, separate the adjustment of civil servants and cadres will be consistent with the law on civil servants and civil servants of many countries in the world, in accordance with the provisions of the Constitution on organization and operation of the state apparatus (according to which the state apparatus includes: the system of legislative, executive and judicial bodies) 23 CONCLUSION Based on the study of some theoretical issues and the legal status of cadres in Vietnam, the thesis draws some conclusions as follows: In Vietnam, studying the legal history in our country from 1945 to present and on the basis of the current legal provisions, it is possible that: Vietnamese citizens are elected, approved, and appointed to hold positions and titles in the Communist Party of Vietnam, the State, socio-political organizations at the central and local levels, on the payroll and receive salaries from the State’s budget Compared to other subjects, civil servants and public servants, cadres have some basic characteristics: cadres who hold positions and titles by term through the election, approval and appointment mechanisms; the nature of the work of cadres associated with planning and issuing policies; cadres who are paid according to positions, titles and scope of working agencies of cadres are agencies of the Party, State and socio-political organizations at the central, provincial and district levels To ensure the operation of the cadres with its own characteristics, it is necessary to build a system of appropriate legal regulations to regulate the relationships arising in the operations of cadres The law on cadre is an overall legal regulation issued by a competent state agency to identify subjects who are cadres and adjust social relations related to powers and obligations, responsibilities of cadres in the process of implementing public duties and specific tasks Current law on basic cadres has been completed to meet the requirements of adjusting the performance of civil servants' duties and duties as well as contributing to ensuring the effectiveness of current cadre management The content of the law on cadres is very diverse and rich, including basic issues such as identification of cadres; regulations on the election process, approval, appointment, planning, transfer and cadres rotation; regulations on rights and obligations of cadres; regulations on responsibilities of cadres; regulations on conditions, standards and ethical standards of cadres; regulations on conditions to ensure the performance of public duties and cadres' duties have created a relatively adequate legal basis for building a contingent of cadres to meet the requirements of building a law-governed state and association International import in our country today The current law on cadre still has some shortcomings, basic limitations such as: having no clear concept of "cadres" to distinguish them from other people working in Party agencies, State, socio-political organizations, therefore there is no a basis for creating a separate legal corridors on cadre arrangement; The legal regulations on cadres are scattered in many different documents and inconsistent and synchronous and have not ensured the 24 constitutionality and legality; the management of cadres has many different clues and authorities, so the management of cadres is overlapping and complicated; The implementation of the law on cadres is reflected in the results of the construction of cadres who have not really met the requirements of building the Party and building a socialist law-governed State in our country The causes of the shortcomings and limitations of the law on cadres are: the law on cadres has not been approached from the perspective of the nature of the cadres and duties of cadres in accordance with political and economic characteristics, health, culture and society in our country; The adjustment of the law on cadre is not based on the nature of the official duties, cadres' duties and the nature of each agency or organization Perfecting the law on cadres is an objective indispensable requirement to meet the development requirements of the market economy and international integration; building a socialist rule-of-law state; improve the quality of cadres in the process of industrialization and modernization of the country and overcome the shortcomings and limitations of the law on cadres in our country today The improvement of the law on cadres should follow the following views: (i) thoroughly grasp the Party's viewpoints and guidelines on building cadres; (ii) contribute to building a truly qualified cadre of the people, building a transparent and effective civil service; (iii) ensuring inheritance, promoting the legal values of cadres in history and international experience in building public service regimes; (iv) based on criteria and ensuring harmony with the perfection of the legal system in general Some basic solutions to continue improving the law on cadre in Vietnam: - Whilst a separate regulation on cadres has not been enacted yet, it is necessary to continue to improve legal documents on cadres with the following basic contents: Continuing to perfect the regulations on standards titles of cadres' ranks; cadres evaluation; cadres management; the mechanism of coordination between the agency managing cadres and mass organizations in the implementation and supervision of the implementation of the law on cadres; salary and remuneration policies for cadres to ensure the dedication and integrity of cadres in the performance of official duties - Completing the legal provisions related to cadres: completing regulations related to ethics of cadres in the implementation of the Law on Anti-Corruption; Law on thrift practice and waste combat; perfecting the strategy of building cadres suitable to the new situation - Research and evaluation aimed at forming a separate law on cadres can be considered as a breakthrough solution and the basis of perfecting the law on cadres Accordingly, the Law on Public Cadres and Cadres can be issued in the direction of redefining the scope of cadres and civil servants, or enacting the Law on Cadre and Law on Civil Servants LIST OF PUBLISHED SCIENTIFIC WORKS BY THE AUTHOR RELATED TO THE THESIS TOPIC Nguyen Thi Le Thu (2015), "The role of the law on management of cadres in Vietnam today", Journal of Inspection, (2), p 22-24 Nguyen Thi Le Thu (2017), "Perfecting the legal corridors for separate arrangement of cadres", Legal Journal, (10), p 46-49 Nguyen Thi Le Thu (2018), "Determining the scope of subjects as cadres under current Vietnamese law", Democratic Review and Law, 4(313), p 23-25, 29 Nguyen Thi Le Thu (2018), "Laws on civil service, civil servants in some countries and issues that can be consulted for Vietnam", Journal of Supervision, (8), p 57-62 ... tasks 2.1.2.2 The characteristics of law on cadres Pháp luật cán phận cấu thành hệ thống pháp luật nên bên cạnh đặc điểm chung pháp luật, pháp luật cán có đặc thù riêng: Because the law on cadres... of Vietnamese civil servants " by Le Nhu Thanh, National Academy of Public Administration, Hanoi, 2009; Doctoral Thesis of Philosophy "Responsibility of Public services and ethics of Vietnamese... "Completion of legal regulations on public service, civil servants in Vietnam nowadays" by Lương Thanh Cuong, Faculty of Law, Vietnam National University, 2008; Jurisprudence Doctoral Thesis " Renovation
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