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VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THI PHUONG HA ENFORCEMENT OF JUDGEMENT AND DECISIONS OF THE COURT ON CURRENT ADMINISTRATIVE CASES IN VIETNAM Major: Constitutional Law and Administrative Law Major Code: 9380102 SUMMARY OF DOCTORAL DESSERTATION IN LAW Hanoi - 2019 The work has been completed at GRADUATE ACADEMY OF SOCIAL SCIENCES Scientific Supervisor: Assoc Prof PhD Hoang Van Tu Reviewer 1: Prof PhD Phan Trung Ly Reviewer 2: Prof PhD Thai Vinh Thang Reviewer 3: Assoc Prof PhD Vu Trong Hach The thesis is protected before the Doctoral Dissertation Council at the Graduate Academy of Social Sciences at ……….……………………………………….2019 The thesis can be found at: National Library Library of Social Sciences Academy INTRODUCTION The urgency of the thesis The verdict and decision of the Court has always been considered as an expression of justice in all countries in the world Through the judgement of the court, people receive the right, the fairness that they seek throughout the process of resolving the case In Vietnam, ensuring the enforcement of a legally enforceable judgement or decision (also known as judgement enforcement) is a constitutional principle and an important requirement in judicial reform policy Enforcement of judgements and decisions of the Court on administrative cases (called the Administrative Judgement Enforcement) is currently one of the three basic judgement enforcement areas Objects of the Administrative Judgement Enforcement are decisions related to State agencies, mainly state administrative ones Thus, the relationship between Administrative Judgement Enforcement agencies and administrative judgement enforcers must be proactive and realistic in the enforcement of judgements, which is not easy to deal with More than years after the promulgation of the Administrative Procedure Law in 2010, the Law on Administrative Procedures in 2015 was passed by the National Assembly The judgement enforcement mechanism was changed, which enhanced the role of judicial authorities However, according to the report of the judgement enforcement agency, the rate of judgements and decisions of administrative cases has been still low It is necessary to mention the following reasons: firstly, the legal corridor of judgement enforcement in general and administrative judgement enforcement in particular is incomplete and inconsistent in many different legal documents; secondly, the quality of administrative judgement cases in many localities is not high; thirdly, legal awareness and law enforcement organizations of relevant agencies in the enforcement of administrative judgement are still limited; fourthly, the practice of applying specific mechanism in administrative judgement enforcement is not thorough; fifthly, the state management on administrative judgement enforcement still has many shortcomings; sixthly, the monitoring of administrative judgement enforcement is one of the judicial functions of the People's Procuracy at all levels but compared to civil judgement enforcement and criminal judgement enforcement, this function has not been properly concerned In addition, the number of scientific works on administrative judgement enforcement, which was studied in the period of the Law on Administrative Procedures in 2015, is limited In most of the top law schools today, the content of administrative judgement enforcement is only integrated in the subject of Administrative Procedure Law The study "Enforcement of judgement and decision of the Court on the current administrative cases in Vietnam" has been chosen as the topic for the Doctoral Thesis in Law regarding the above issues Objectives and tasks of the research 2.1 Objectives of the research The thesis aims to build a scientific foundation to ensure the effective implementation of the Court's judgements and decisions in Vietnam today 2.2 Tasks of the research (1) Clarify theoretical issues about administrative judgement enforcement; (2) Evaluate the current situation of law and practice of administrative judgement enforcement in Vietnam; (3) Determine the point of view and propose solutions to effectively ensure administrative judgement enforcement in Vietnam in the coming time Object and scope of the research 3.1 Object of the research - Theoretical issues and legal corridors of judgement enforcement in general and administrative judgement enforcement in particular in Vietnam - Theoretical, legal and practical experience about administrative judgement enforcement of some countries in the world - Data and reality of administrative judgement enforcement in Vietnam in general, especially in localities with high number of administrative judgement cases - The Party's guidelines on judicial reforms, judgement enforcement in general and the work of administrative judgement enforcement in particular 3.2 Scope of the research Regarding the content, the thesis studies basic issues of the law of administrative judgement enforcement On that basis, it analyzes the legal situation and practice of law enforcement in Vietnam over the past time and proposes solutions to ensure the effectiveness of administrative judgement enforcement which meets the demand for judicial reform, building the socialist rule-of-law state in Vietnam today In terms of time, the dissertation has studied the provisions of administrative judgement enforcement legislation since the Settlement Procedure Orders of administrative cases (1996) took effect (July 1, 1996); the evaluation data relating to administrative judgement enforcement, specifically handling and resolving administrative cases at the Court from 2010 to the end of 2018; proceeding and monitoring administrative judgement enforcement is statistics which were recorded nationwide from 2012 to the end of 2018, after applying the Law on Administrative Procedures in 2010 (from July 1, 2011) and after the Law on Administrative Procedures in 2015 took effect (July 1, 2016) Particularly, the data of forced administrative judgement enforcement of the Court and the control of administrative judgement enforcement were only collected in years of 2017 and 2018 Methodology and research methods 4.1 Methodology of the research The thesis is based on the theoretical basis of Marxism-Leninism, Ho Chi Minh's thought, the viewpoint of the Communist Party of Vietnam on judicial reform, building a socialist law-governed state (Socialist) Since then, the thesis is conducted according to the following approaches: - System approach - Multidisciplinary, interdisciplinary approach - History approach 4.2 Methods of the research The thesis applies the following research methods: - Methods of analysis and synthesis - Legal comparison method The new contributions of the thesis Firstly, it is a comprehensive analysis of theoretical issues such as the concept, and characteristics of administrative judgement enforcement It can be affirmed that the administrative judgement enforcement is a form of administrative - judicial activity with more prominent administrative characteristics than judicial ones and plays a very important role in the organization and operation of the state apparatus, emphasizes the role of administrative judgement enforcement in controlling state power, especially between legislatures and law enforcement agencies; clarifies the mechanism of administrative judgement enforcement and the factors affecting the effectiveness of administrative judgement enforcement in terms of theory Secondly, the thesis presents the provisions of current law of administrative judgement enforcement stipulated in the Law on administrative violations in 2015 in terms of subjects, objects, procedures and measures to ensure administrative judgement enforcement It also points out the advantages and disadvantages of the current law of administrative judgement enforcement in the comparison with the provisions of the Law on Administrative Procedures in 2010 and the law of administrative judgement enforcement of some countries in the world Thirdly, the thesis assesses the practice of administrative judgement enforcement activities in our country over the past time, especially during the period when the Law on Administrative Procedures in 2015 took effect This assessment is carried out with the following contents: results of resolving administrative cases at People's Courts at all levels compared with results of the administrative judgement enforcement; By evaluating the implementation of the above contents, the dissertation identifies the shortcomings and difficulties of the current administrative judgement enforcement in Vietnam and also analyzes the objective causes, subjective causes that affect the effectiveness of administrative judgement enforcement Fourthly, the thesis sets out the points of views to ensure effectiveness of administrative judgement enforcement, of which there is a view on ensuring the control of power in the organization and operation of the state apparatus The thesis proposes the following groups of solutions: a group of solutions to raise awareness about administrative judgement enforcement, a group of solutions to improve the law administrative judgement enforcement which emphasizes the building law of administrative judgement enforcement, the state management solutions on administrative judgement enforcement and some complementary solutions to the administrative judgement enforcement Meaning of the thesis The research results of the dissertation add theoretical issues about administrative judgement enforcement, contributing to unifying the awareness of concepts, characteristics and roles of the administrative judgement enforcement At the same time, it provides assessments of advantages and disadvantages of administrative judgement enforcement law since being established in the Vietnamese legal system up to the present time; provides and supplements scientific arguments into perfecting the law of administrative judgement enforcement and ensuring the effectiveness of judgement enforcement meeting the requirements of judicial reform, building a socialist lawgoverned state The research results of the thesis contribute to raising the awareness of the subjects in the administrative judgement enforcement, mainly the state administrative agencies, authorities, officials and civil servants implementing public duties in the agency; People's Courts at all levels and administrative judges; Executive members working on administrative judgement enforcement: The People's Procuracy at all levels and the team of procurators who perform the function of supervising administrative judgement enforcement and related agencies and organizations The thesis can be used as a reference for administrative judgement enforcement agencies and its management agencies; State administrative agencies at central and local levels; training institutions in research, study and teaching about administrative judgement enforcement Structure of the thesis In addition to the introduction, conclusion, list of references, the thesis includes: Chapter Overview of the research Chapter Theoretical issues about the enforcement of court judgements and decisions on administrative cases Chapter Current situation of executing court judgements and decisions on current administrative cases in Vietnam Chapter Point of views and solutions to ensure the effective implementation of court judgements and decisions on administrative cases in Vietnam CHAPTER OVERVIEW OF THE RESEARCH 1.1 Overview of the research on the thesis topic 1.1.1 The study of theoretical issues Firstly, it is listed below the group of research projects on judgement enforcement in general, and administrative judgement enforcement in particular which emphasizes the nature of judgement enforcement activities Assoc Dr Tran Dinh Hao (2003), ‘On judicial reform and judgement enforcement issues from the perspective of the Civil Economic Law, State and Law Journal, p.19-28; Nguyen Cong Binh, (1998), Some issues about administrative judgement enforcement in drafting the Civil Procedure Code, Journal of Law No 5, p.43-44; Le Vinh Chau (2016), Executing judgements and decisions of the Court on current dispute resolution in business and commerce in Vietnam, Doctoral Dissertation, Academy of Social Sciences; GS Dr Vo Khanh Vinh (2013), Law on Criminal Enforcement, Social Sciences Publishing House, Hanoi; Le Minh Tam (2001), Trying to discuss theoretical issues about judgement enforcement, Journal of Law No 2, p 21-22; Nguyen Thanh Thuy, (2008), Perfecting the Law on Civil Judgement Enforcement in Vietnam today, Doctoral Dissertation, Ho Chi Minh National Academy of Politics and Public Administration; Chu Thi Hoa (2016), Law on Civil Judgement Enforcement in Judicial Reform in Vietnam, Doctoral Dissertation, Academy of Social Sciences Secondly, there are groups of research works on theoretical issues about administrative judgement enforcement, especially about the nature of administrative judgement enforcement activities Truong Hong Quang (2015), Concepts, nature, characteristics and conditions affecting administrative judgement enforcement, Scientific Workshop Documents, Experiences of some countries in the world and applicability in Vietnam, Ministry of Justice, p.23-40 and Pham Xuan Nam (2012), Administrative judgement enforcement in Vietnam - Current situation and perfect direction ", Master thesis, Ho Chi Minh City University of Law; Nguyen Thi Thuong Huyen (2012), Human rights guarantee in administrative judgement enforcement in Vietnam, University-level scientific research project, Ho Chi Minh City University of Law; Nguyen Thi Hoang Giang (2017), Policies and major orientations in building the Law on Administrative Judgement Enforcement in Vietnam, General Department of Justice (Ministry of Justice) 1.1.2 The study of practical issues Firstly, the thesis studies a group of research works on the legal status and practice of applying administrative judgement enforcement law in Vietnam in the period when the ordinance of administrative cases in 1996 and Law on administrative procedures in 2010 took effect Nguyen Van Tan, Administrative judgement enforcement and limitations, People's Deputies Newspaper, September 15, 2009; Vu Thi Hang (2012), Status of implementation of administrative judgements, law development process and some basic contents of the Administrative Procedure Law on administrative judgement enforcement, Professional training materials of the administrative judgement enforcement , implementation of civil part in criminal judgement and work construction and project management of the Ministry of Justice; Ha Minh Tuan, Some opinions on administrative judgement enforcement, January 20, 2015, Research and Exchange Section - Ministry of Justice; Tran Minh Giang, Administrative judgement enforcement: Many shortcomings need to be remedied, Justice Report, May 10, 2015; Vu Thi Hang - Ly Thi Thuy Hoa (2015), Administrative judgement enforcement in Vietnam, status and recommendations for improvement, Scientific Workshop Documents Experiences from some countries in the world and applicability in Vietnam, Ministry of Justice, p 5-14; Tran Van Duy, Inadequacies in the current law on administrative judgement enforcement, Journal of Inspection No 3/2016, p 14-17; Hoang Diep, Win lawsuits - struggling to enforce judgement, Tuoi Tre Newspaper, October 12, 2014; Ho Quan Chinh, Executing administrative judgements and decisions in Ho Chi Minh City Difficulties and obstacles and some proposals ", Democracy and Law Magazine, Thematic issues on administrative judgement enforcement ; Thu Hang, Financial Assistance for judgement enforcement: The anxiety and the ignorance, Vietnam Law Newspaper, May 19, 2008 Secondly, it can be listed below the group of research works on the status of law and practice of applying administrative judgement enforcement law in Vietnam after the Law on Administrative Procedures in 2015 and Decree 71/2016 / ND-CP took effect Phan Tran Mai Phuong, (2016), Principles of equality of rights and obligations in administrative proceedings, Master's thesis, Ho Chi Minh City University of Law; Bui Ngoc Hoa, New contents of Administrative Procedure Law, Administrative Law Training Document; Vo Cong Hoang, New regulation in enforcement of judgements, administrative decisions, Democracy and Legal Review No 4/2016, p.62-64; Nguyen Van Thuan, Jurisdiction of the Court under the Law on Administrative Procedures in 2015, Democracy and Law Magazine; Truong Khanh Hoan, Mechanisms to enforce court judgements and decisions on administrative cases in Vietnam and responsibilities of ministries, branches and localities in administrative judgement enforcement, General Department of Civil Judgement Enforcement (Judicial); Hoang Thi Thuy Vinh, Phan Thi Thu Ha (2017), Current situation and solutions to resolve administrative cases at the Court, General Department of Justice (Ministry of Justice); Than Quoc Hung (2018), The quality of adjudication of administrative cases of provincial People's Courts in Vietnam today, Doctoral Dissertation, National Political Academy; Tran Phuong Hong (2017), Monitoring administrative judgement enforcement and the role of Civil Judgement Enforcement Agencies in monitoring administrative judgement enforcement, General Department of Justice (Ministry of Justice); Nguyen Thi Kim Quy (2017), Law on administrative judgement enforcement and the status of implementing court judgements and decisions on administrative cases in Vietnam, General Department of Justice (Ministry of Justice); Department of administrative judgement enforcement Ho Chi Minh City (2017), Difficulties and obstacles on the law of administrative judgement enforcement from the perspective of monitoring administrative judgement enforcement, General Department of Justice (Ministry of Justice) Thirdly, it is the group of research works on the status of law and practice of applying administrative judgement enforcement law in some countries in the world Prof Martine Lombard and Prof Gilles Dumont, French Administrative Law works; Tran Kim Lieu (2017), Administrative judgement enforcement in some countries in the world and lessons for Vietnam, General Department of Education (Hanoi Law University); Ha Tu Cau (2015), Model of administrative enforcement of France and its applicability in Vietnam, Scientific Workshop Documents Experiences of some countries in the world and applicability in Vietnam; The model of administrative judgement enforcement of England and Wales and the ability to apply the experience of England and Wales in Vietnam by Cao Xuan Phong; Le Lan Chi and Do Thi Thu Hang, Researches on China's Administrative Enforcement Model, Scientific Workshop, experiences of administrative judgement enforcement of some countries in the world and applicability in Vietnam 1.1.3 Research on proposals and recommendations of the thesis topic Firstly, the groups of researches on proposals and recommendations are based on the current law and practice of law application in Vietnam Most of the research works which analyze the reality of the law and practice of the law of administrative judgement enforcement have certain proposals, but mainly the proposal to improve and complete the law of administrative judgement enforcement Therefore, other issues related to ensuring the effectiveness of administrative judgement enforcement in addition to completing the law are not clear and effective, especially ones in the period of the Law on Administrative Procedures in 2015 and Decree 71/2016 / ND-CP which took effect Most proposals and recommendations to ensure effective administrative judgement enforcement are immediate, yet the long-term development and stability have been somewhat limited Secondly, the group of research works on proposals and recommendations is based on the current law and practical application of administrative law in some countries in the world Cao Xuan Phong pointed out that we should consider the State Compensation Law Author Ha Tu Cau proposed the establishment of an intermediary agency for settling administrative cases to reduce the load for administrative courts and limit the work of administrative judgement enforcement Author Le Lan Chi, Do Thi Thu Hang said that the model of administrative judgement enforcement in China has similarities that will create common points about judgement enforcement activities, especially administrative judgement enforcement 1.2 Evaluation of the research 1.2.1 The advantages and the research results that the thesis will inherit and continue to develop - First, in terms of teory, most of the researches mentioned and analyzed the theoretical basis of judgement enforcement in general and in the special case in particular, in which the contents of concepts, characteristics and meanings of the administrative judgement enforcement are quite specific - Secondly, in terms of reality, the researches have evaluated and summarized both the law of the actual law and the implementation of this activity in practice - Thirdly, in terms of solutions, the majority of research works are aimed at improving the law of administrative judgement enforcement, especially some recent projects that have proposed amendments and supplements to the Law on Administrative Procedures in 2015 and Decree 71/2016 / ND-CP including contents relating to the adjudication of the administrative judgement cases 1.2.2 The issues that have not been mentioned, thoroughly addressed or arguments that the thesis must continue to study - First, theoretically, the concept and definition of administrative judgement enforcement has been mentioned in many research projects but there is no high agreement; secondly, the nature of judgement enforcement in general and the administrative judgement enforcement in particular has faced many conflicting views, even becoming contradictory and conflicting Issues that have not been addressed: firstly, the works are generally stated only as a court judgement or decision on the administrative judgement enforcement; secondly, controlling state power is an important content to ensure the operational efficiency of the state apparatus and administrative judgement enforcement has not been mentioned by studies; Thirdly, the order and procedures for complaints and denunciations in the administrative judgement enforcement are an important content but have not been discussed; Fourthly, the factors affecting the effectiveness of administrative judgement enforcement have not been worked out - Secondly, in terms of reality, the legal status and practical implementation of the Law on Administrative Procedures in 2015 have not been assessed thoroughly yet The reality of factors affecting the effectiveness of administrative judgement enforcement has not been mentioned - Thirdly, in terms of solutions, there is only focus on assessing the legal situation or assessing the practical implementation of one or several subjects in the case 1.3 The issues that need further researches in the thesis 1.3.1 Issues need that need further researches Firstly, clarifying the viewpoint of the nature of administrative judgement enforcement activities on the basis of convincing scientific evidence Secondly, focusing on research, analyzing in theory as well as factors affecting the effectiveness of administrative judgement enforcement Thirdly, it is necessary to clarify the administrative judgement and decision of the Court Fourthly, analyzing the order and procedures of administrative judgement enforcement which is associated with the responsibilities of relevant agencies Fifthly, synthesizing and evaluating the advantages and disadvantages of administrative judgement enforcement law in the period 2016 up to now, in comparison with the law of administrative judgement enforcement in the period of - The Government - The Ministry of Justice 2.2.1.4 The subject of supervising administrative judgement enforcement - The People - Vietnam National’s Assembly - The People's Council 2.2.1.5 The subject of examining administrative judgement enforcement 2.2.2 Subjects of enforcement of court judgements and decisions on administrative cases 2.2.2.1 Court judgements on administrative cases The administrative judgement contains information about a specific administrative case, the applicable law, conclusions and decisions of the Court on the grounds of the legality of the administrative decisions, such as forced resignation, decisions to resolve disputes and lists of voters being sued Administrative judgements include first-instance administrative judgements and appellate administrative judgements 2.2.2.2 Court’s decision on administrative cases A decision of a court is a court document in the proceedings in which the administrative procedure is used to publish an event or solve a specific problem or requirement; issued by the authorized entities and regulated by the administrative law in each stage of handling a specific administrative case 2.2.3 Procedures for enforcement of court judgements and decisions on administrative cases (1) Transfer and explain court’s judgements and decisions (2) Voluntarily enforce the sentence (3) Forced enforcement of the sentence 2.3 Factors affecting the enforcement of court’s judgements and decisions on administrative cases 2.3.1 Policies, views, political awareness of administrative judgement enforcement Administrative judgement enforcement has always been one of the important activities of the state apparatus even though it builds a multi-party or one-party political system Through the leadership of the state and society, we can see the clear impact of the political party on the policy and point of view on the activities of the administrative judgement enforcement 2.3.2 Completion of law on administrative judgement enforcement In the rule of building law-based state, the stability of the legal system is an important factor Therefore, the perfection of the law in general and the law of administrative judgement enforcement in particular should be done carefully and appropriately because the completion of the law will significantly affect the national budget and the stability of the legal regulations which govern the related social relations 11 2.3.3 Quality of adjudication of administrative cases of People's Courts at all levels Independent justice is essensial for justice A society cannot be disordered and therefore cannot develop without a court; Only with an independent judiciary, the court can truly become a place to implement social justice The quality of trial is a clear mirror reflecting the independence of justice, especially for the administrative cases 2.3.4 Awareness of administrative judgement enforcement The law is always the important foundation of a law-based state People are all equal before the law, the law has no exception, otherwise it is not a law However, the law in a State is not merely a practical adjustment to human behavior according to the principle of crimes - punishment This is not a developed law The development of the law is the orientation of its behavior to the executing entity in protecting the right interests of other members of society Once the law is respected, compliance will be done voluntarily Chapter Summary Administrative judgement enforcement is the behavior of the involved parties in the administrative cases to realize the judgements and decisions of the Administrative Court This is not an independent administrative period but an overall administrative-judicial activity Administrative judgement enforcement has a certain role in ensuring the value of previous trial activities; contributes to protecting and developing human rights; improving the sense of law, but most importantly, improving the efficiency of state administrative management and ensuring the control of power between the judiciary and law enforcement Currently, most countries in the world not have a specialized agency to organize the enforcement of the administrative part in the judgement and decision on the administrative judgement enforcement In addition to the characteristics of administrative judgement enforcement, the policies and point of views about administrative judgement enforcement; issues of law completion; the quality of trial of administrative cases or awareness of administrative judgement enforcement are really the factors that have an important impact on the effectiveness of this work Chapter ISSUES OF ADMINISTRATIVE JUDGEMENT ENFORCEMENT AND DECISION OF THE COURT ON ADMINISTRATIVE CASES IN VIETNAM 3.1 The law on court judgement enforcement and decisions on current administrative cases in Vietnam 3.1.1 Law on enforcement of court judgements and decisions on administrative cases 3.1.1.1 Subjects of administrative judgement enforcement a Subjects directly execute administrative sentences 12 -The judgement-executing person: is an individual, agency or organization that get benefits in the judgement or decision of the Court - The judgement debtors: are individuals, agencies and organizations that have to fulfill their obligations in the judgements and decisions of courts b Subjects which are subject to administrative judgement enforcement - The Court has adjudicated the first instance of the administrative cases - The systems of administrative judgement enforcement agencies c The subject of managing administrative judgement enforcement - The Government - The Ministry of Justice - General Department of Administrative Judgement Enforcement - The Head of the immediate higher agency of the judgement debtors - The systems of administrative judgement enforcement agencies d The subject of supervising administrative judgement enforcement - The People - The National Assembly - The People's Council e The subject of administrative judgement enforcement From the Constitution of 1980, up to now (Item of Article 107 of the 2013 Constitution), the People's Procuracy has two basic functions: to exercise the right to prosecution and to supervise judicial activities 3.1.1.2 Objects of administrative judgement enforcement a Court’s judgements on administrative cases - Judgement or the part of first instance judgement - The Appeal judgement b Court’s decision on administrative cases - The decision or part of the decision of the Court of First Instance is not subject to appeal or protest according to the appellate procedure which has taken legal effect - Decision of the Court of Appeals - Judicial or reopening decision of the Court - Decision according to special procedures of the Council of Judges of the Supreme People's Court - Decicision to apply temporary emergency measures of the Court despite the complaints and petitions 3.1.1.3 Procedures of administrative judgement enforcement (1) Transfer and explain judgements and administrative decisions of the Court (2) Voluntarily enforce the sentence (3) Forced enforcement of sentence 3.1.1.4 Measures to ensure administrative judgement enforcement a Measures for handling violations 13 (1) disciplinary action; (2) sanction against administrative violations; (3) material responsibility; (4) criminal prosecution b Other measures (1) Publicize information on not serving judgement; (2) Consider evaluating and classifying officials, civil servants and those who violate the law on administrative judgement enforcement 3.1.2 Evaluation of the law on court judgement enforcement and decisions on administrative cases 3.1.2.1 Strengths Firstly, the regulations on the time limit for voluntary enforcement and the time limit for notifying the implementation results of the persons who must be involved Secondly, replace the judgement enforcement mechanism by the authority to issue judgement enforcement decisions belongs to the Court of First Instance and the authority to monitor the judgement enforcement of the administrative judgement enforcement agency at the same level Thirdly, clarify more specific provisions on the responsibilities of the head of the immediate superior agency Fourthly, prescribe the jurisdiction to adjudicate administrative complaints related to the Chairman of the People's Committee and the People's Committee Fifthly, clarify specific provisions on disciplinary measures for civil servants and employees who commit violations in the administrative judgement enforcement agency 3.1.2.2 Shortcomings Firstly, the issue of voluntary enforcement of judgements makes it difficult to apply in practice Secondly, there is still the psychology of fear in administrative judgement enforcement agency when monitoring administrative judgement enforcement Thirdly, the regulation promulgates the decision to enforce the judgement and administrative decision of the Court has caused confusion in many cases which delayed the judgement enforcement process Fourthly, there are not measures to enforce judgement against the judgement debtors who are state agencies or competent persons when executing the administrative decisions of the judgements and decisions of the courts 3.2 Results of executing court’s judgements and decisions on current administrative cases in Vietnam 3.2.1 Results of handling administrative cases and administrative judgement enforcement The number of administrative cases that have been accepted and processed and tried at the People's Courts at all levels tends to increase, of which the number of administrative cases in 2012, 2013, 2017 and 2018 has increased dramatically This shows that individuals, agencies and organizations have more confidence to choose a form of lawsuit at the Court to request the settlement of administrative 14 disputes However, the number of citizen cases claiming administrative decisions and administrative violations at the Court still accounts for a very small proportion of administrative complaints The lawsuit mechanism at the Court has been trusted by people, especially when the Law on Administrative Procedure in 2015 took effect but in fact, the complaint is still the main form Administrative decisions, administrative acts are claimed mainly in the fields of land and housing (such as land acquisition, site clearance, compensation and resettlement assistance), the rest are concentrated on the field of tax, sanctioning against administrative, cultural violations The quality of judging of People's Courts at all levels is assessed through the number of cases with appeals and protests; or those was re-trialed and canceled 3.2.1.2 Administrative judgement enforcement results The effect of administrative judgement enforcement in 2017 was positive because 81% of the cases were completed compared to 50% of the cases according to the mechanism of administrative judgement enforcement at the same time in 2016 However, the pending judgement still remains a big problem The 70 decisions to enforce judgement that the Court of First Instance issued to the judgement debtors, mainly the Chairman of the People's Committee and the People's Committee of all levels put an alarm and warning of not respecting disciplines and regulations of the State and the law in administrative judgement enforcement In 2018, the Judiciary Committee of the National Assembly supervised the law observance on administrative violations procedures and administrative judgement enforcement of the Chairman of the People's Committee This shows that the total number of judgements and decisions enforced by the Court for violations of the time limit of the voluntary administrative judgement enforcement has been reduced However, the number of uncompleted cases is rather high, 224 compared to 363 cases conducted by administrative judgement enforcement agency 3.2.2 Results of implementing state management tasks on administrative judgement enforcement 3.2.2.1 The task of advising, issuing and directing the implementation of administrative judgement enforcement documents 3.2.2.2 Organizing the apparatus, ensuring the payroll of administrative judgement enforcement 3.2.2.3 The training and education of administrative law enforcement 3.2.2.4 The work of guiding and fostering profession on administrative judgement enforcement 3.2.2.5 The inspection, inspection and settlement of complaints and denunciations about administrative judgement enforcement 3.2.2.6 Statistics, reporting and summarizing on administrative judgement enforcement 3.2.3 Results of supervising administrative judgement enforcement 15 Monitoring activities of the administrative judgement enforcement can be seen in two basic forms: direct supervision and indirect supervision However, the evaluation of the monitoring results is sometimes not accurate, especially for the subjects who are the People 3.2.3.1 Questioning activities of National Assembly Deputies 3.2.3.2 Activities of the Judicial Committee 3.2.4 Results of the examination of administrative judgement enforcement of the People's Procuracy 3.2.4.1 Organization of the administrative judgement enforcement apparatus 3.2.4.2 The implementation and guidance, professional guidance on the supervision of administrative judgement enforcement 3.2.4.3 Results of supervising administrative judgement enforcement 3.3.5 Results of handling violations in administrative judgement enforcement In years 2015, 2016, 2017 and 2018, there were no cases of officials and public employees being disciplined and examined for penal liability due to violations of the administrative judgement enforcement obligations This statistic means that the effectiveness of administrative judgement enforcement is high, the observance of administrative judgement enforcement law of cadres and civil servants is thorough However, in 2017, the People's Courts at all levels had to issue 70 decisions to enforce judgement against the judgement debtors being the state administrative agencies, mainly the People's Committees at all levels due to violation of the time limit on voluntary administrative judgement enforcement 3.3 Factors affecting the enforcement of judgements and decisions of the Court on current administrative cases in Vietnam 3.3.1 Policies, points of views, political awareness of administrative judgement enforcement 3.3.2 Completion of building law on administrative judgement enforcement 3.3.3 Quality of adjudication of administrative cases of People's Courts at all levels 3.3.4 Awareness of administrative judgement enforcement 3.4 Overall assessment of implementing court’s judgements and decisions on current administrative cases in Vietnam 3.4.1 Achievements - The work of administrative judgement enforcement of the has received the attention and leadership of the Party committees and authorities from the central to local levels - Through the supervision by questioning activities of National Assembly deputies, activities of implementing the tasks of the National Assembly's agencies on judgement enforcement in general and administrative judgement enforcement in particular have shown increasing concern of the People for the work of administrative judgement enforcement 16 - Increasingly better implementation mechanism, the order and procedures for enforcement or handling violations in administrative judgement enforcement - Awareness of state agencies and competent individuals and people of all classes on administrative judgement enforcement law has been increasingly improved - The system of Civil judgement enforcement agencies has been implemented step by step in accordance with the law, initially going into order - The People's Procuracy at all levels has made great efforts in changing the management and administration methods for the work of administrative judgement enforcement 3.4.2 Shortcomings and obstacles 3.4.2.1 Shortcomings - The situation of not strictly abiding by the Court's judgements and decisions is still popular, in which many cases of violation are state agencies or competent individuals - Statistics and reporting on data of administrative judgement enforcement in serving management activities of the administrative judgement enforcement were not timely, complete and accurate, with contradiction with data from the People's Courts at all levels and local People's Procuracy - Some ministries, branches and localities have not really paid attention to and coordinated with the work of administrative judgement enforcement, some localities considered administrative judgement enforcement work as the work of civil judgement enforcement agency; not strictly follow the information and reporting to the Government, so the effectiveness of state management in the administrative judgement enforcement is still limited - The supervision of the main authorized entities is still mainly concentrated at the meetings of National Assembly through questioning activities, therefore, it is not timely 3.4.2.2 Obstacles - Judgements and decisions of the Court on administrative judgement cases are unclear or clear but still difficult to implement in practice because they are not feasible - It is difficult for the enforcement agencies to determine the intentional error of slow judgement enforcement or not serving the judgement decision - The organization, the advisory apparatus for state management on the administrative judgement enforcement has initially been strengthened by the establishment of the Department of Administrative Judgement Enforcement Management in the General Department of Civil Judgement Enforcement 3.4.3 Causes of the above limitations and difficulties 3.4.3.1 Subjective reasons - Administrative judgement enforcement is a complicated and sensitive field of enforcement regarding relationships among relevant agencies when the judgement debtors are state administrative agencies, competent persons in administrative agencies, therefore, it is often difficult to enforce mechanisms drastically and fully to ensure the effective implementation 17 - In many cases, the state administrative agency is the one who has to enforce the judgement and disagrees with the judgement of the Court on the grounds that the judgement does not guarantee the feasibility or convincement - Awareness of administrative judgement enforcement of relevant subjects in the implementation process is still limited - During the process of participating in the proceedings, in some cases, the Chairman of the People's Committee and the authorized deputy did not participate in the dialogue and did not participate in the trial - Coordination between the People's Courts and civil judgement enforcement agency in the transfer of legal court judgements and decisions or in providing data or the handling and settlement of administrative trials of the courts in some places is not good - In the context of the State's implementation of staffing reduction, the number of civil judgement enforcement cases under the responsibility of civil judgement enforcement agency, which is increasing, put pressure on the civil judgement enforcement sector 3.4.3.2 Objective reasons - Law on administrative procedures and administrative judgement enforcement have been gradually improved, creating a relatively adequate legal framework for the work of administrative judgement enforcement over the past time, however, the issues related to administrative procedures and administrative judgement enforcement have been still not specified - The mechanism of administrative judgement enforcement in accordance with the administrative procedure law in 2015 and Decree 71/2016 / ND-CP is still the self-enforcement mechanism of the judgement debtors - There is no synchronous monitoring mechanism for the monitoring agencies to fully understand the details of administrative violation cases before participating in the process of administrative judgement enforcement - Administrative complaints are mainly related to the land sector (recovery, compensation, support and resettlement); land disputes and settlement; The law stipulating this issue is still contradictory, overlapping and historical Chapter Summary Chapter of the Dissertation presented and analyzed the following contents: (1) Law on administrative judgement enforcement, in the period of Law on Administrative Procedures in 2015 and Decree 71/2016 / ND-CP; evaluate the advantages and limitations of the law on administrative judgement enforcement during this period; (2) Assess practices of administrative judgement enforcement activities in terms of trial results and administrative judgement enforcement; monitoring results of administrative judgement enforcement agency; results of state management on administrative judgement enforcement; results of monitoring, supervising administrative judgement enforcement and results of handling violations in administrative judgement enforcement; (3) Analyze and evaluate the factors affecting efficiency of the administrative judgement enforcement in our 18 country; (4) Summarize the results of the work of administrative judgement enforcement; shortcomings, limitations, difficulties, and causes of such problems, shortcomings and difficulties Chapter POINTS OF VIEWS AND SOLUTIONS TO ENSURE EFFICIENCY OF THE JUDGEMENT ENFORCEMENT, DECISIONS OF THE COURT ON ADMINISTRATIVE CASES IN VIETNAM 4.1 Points of views to ensure the enforcement of court judgements and decisions on administrative cases in Vietnam 4.1.1 Continue to thoroughly follow the leadership of the Party for administrative judgement enforcement Our history proved that the Party's leadership has always been the decisive factor for all the victories of the Vietnamese revolution Therefore, in the upcoming time, to ensure effectiveness of administrative judgement enforcement, we should continue to thoroughly grasp the points of views and orientations of the Party, specifically as follows: Firstly, perfecting the legal system Secondly, organization of staffing Thirdly, strengthening inspection, monitoring, controlling power and strictly handling violations 4.1.2 Synchronization in solutions to ensure the effectiveness of administrative judgement enforcement Limitations in the work of administrative judgement enforcement are quite complicated which can not be solved in a short time, especially the limitations related to cognitive issues of relevant subjects Therefore, ensuring the effectiveness of administrative judgement enforcement should not promote or underestimate any solutions Insteasd, it requires the coordination of all solutions, specifically solutions such as: (1) Raising awareness of administrative judgement enforcement; (2) Perfecting the law of administrative judgement enforcement; (3) State management solutions and other complementary solutions 4.1.3 Inheriting positive factors in the enforcement of administrative sentences nationwide and abroad In addition to the results of administrative judgement enforcement activities in our country, learning experiences from other countries is also an important basis to complete this work Despite the differences in legal cultures, power structure, legal system or socio-economic conditions, it can be determined that administrative procedures are reconsideration activities of judicial authorities with law enforcement agency, whereas administrative judgement enforcement is one of the three basic judgement enforcement areas to realize the Court's judgements and decisions about the administrative cases 4.1.4 Ensuring the control of power in the organization and operation of the state apparatus 19 The state power organization is an important factor for the development of any country in the world It was added in Article of the 2013 Constitution a new principle of organization and operation of the State of the Socialist Republic of Vietnam which was seen as the principle of power control 4.2 Solutions to ensure the effective implementation of court judgements and decisions on administrative cases in Vietnam 4.2.1 Solutions to raise awareness about the enforcement of court judgements and decisions on administrative cases 4.2.1.1 Renovating propaganda and training of law on administrative judgement enforcement to cadres, civil servants and the people Firstly, for the cadres and civil servants in general and those who work on the law of administrative judgement enforcement in particular Secondly, the content and its form should be more specific and diversified in association with the development of information technology networks in the current period 4.2.1.2 Strengthening the leadership of the executive committee for local authorities on administrative judgement enforcement First, in terms of leadership, - The executive committee of the People's Committee performs the functions and tasks as defined in the law - More attention to the cadre work and organization of staffs Second, in terms of leadership, - Through the resolutions of the committees, it is necessary to state the duties of the administrative judgement enforcement as an important political issue when defining the tasks of local security and social situation - Through ideological work, it is necessary to emphasize the importance of strictly implementing administrative judgement enforcement among officials, party members, and civil servants - Through the inspection and supervision, it is necessary to strictly handle the cases of members who violate the administrative judgement enforcement obligations such as cases of corruption 4.2.2 Solutions to improve the law on enforcement of court’s judgements and decisions on administrative cases 4.2.2.1 Amending and supplementing the Administrative Procedure Law of 2015 a Some provisions in the process of resolving administrative cases affect the quality of adjudication of the courts, thereby limiting the effectiveness of administrative judgement enforcement Firstly, regulations on authorized persons to participate in the proceedings in Clause 3, Article 60 of the Law on Administrative Procedures in 2015 Secondly, officials and public servants of inspection agencies and police agencies must not act as guardians of legitimate rights and interests of the petitioned persons at item c, Clause 2, Article 61 of the Law on Administrative Procedures in 2015 20 Thirdly, identifying roles and agreement on choosing people participating in administrative procedures in some specific cases Fourthly, regulating the jurisdiction of the Court at all levels for "complaints and denunciations issued by the People’s Committee at district level" b Some regulations related to administrative judgement enforcement and its procedures Firstly, the regulations on voluntary administrative judgement enforcement Secondly, the regulation promulgates the Decision to administrative judgement enforcement in Item of Article 311 and Article 312 of the Law on Administrative Procedures in 2015 Thirdly, remove the monitoring function of civil judgement enforcement agency Fourthly, supplement regulations on enforcement measures for administrative judgement enforcement 4.2.2.2 Building law on Administrative judgement enforcement Chapter General provisions Chapter Administrative judgement enforcement procedures Chapter Enforcement of administrative judgement enforcement Chapter Complaints, denunciations and settlement of administrative judgement complaints and denunciations Chapter Handling responsibilities in administrative judgement enforcement Chapter Terms of enforcement 4.2.3 State management solutions on enforcement of court judgements and decisions on administrative cases 4.2.3.1 Strengthening state management on administrative judgement enforcement Firstly, continue to focus on thoroughly implementing the Law on administrative procedures in 2015, Decree No 71/2016 / ND-CP Secondly, advise the Government to organize the inspection and examination of the work in the agencies and localities with the large number of complicated and prolonged cases Thirdly, actively coordinate with the Supreme People's Court, Supreme People’s Procuracy in removing difficulties and obstacles in practical implementation Fourthly, continue to improve the effectiveness of monitoring, reporting and statistics on administrative judgement enforcement in the whole system of civil judgement enforcement Fifthly, organize research and perfect the legal framework on administrative judgement enforcement to further institutionalize the 2013 Constitution and the Party's Resolutions 4.2.3.2 Improving the effectiveness of administrative judgement enforcement of the Civil Judgement Enforcement Agency 21 Firstly, it is necessary to take advantage of the leadership and direction of Party committees and administrations at all levels for the work of the administrative judgement enforcement Secondly, each locality should continue to promote propaganda about legal regulations on administrative judgement enforcement on the mass media Thirdly, continue to improve the quality and effectiveness of the professional guidance for monitoring administrative judgement enforcement Fourthly, strengthen coordination with the People's Courts at the same level in the locality Fifthly, improve the quality and effectiveness of the inspection, supervision and settlement of complaints and denunciations related to the monitoring of administrative judgement enforcement in civil judgement enforcement agencies, especially in localities with large, numbers of complicated and prolonged cases of administrative judgement enforcement Sixthly, ensure the quality of reporting and statistics on monitoring administrative judgement enforcement activities 4.2.4 Solutions to support the enforcement of court judgements and decisions on administrative cases 4.2.4.1 Improve the quality of adjudication of administrative cases at People's Courts at all levels Firstly, make sure that the decision of the Court on the administrative violation cases must be clear and legal Secondly, improve professional qualifications, trial experience, political bravery for administrative judges 4.2.4.2 Strengthening the supervision of the enforcement of judgements and decisions of the Court on administrative cases a Supervision of the enforcement of judgements and decisions of the Court on administrative cases Firstly, it is necessary to further improve the quality of specialized agencies of the National Assembly and People's Councils to strengthen supervision of judicial activities, including supervision of administrative judgement enforcement Secondly, develop mechanisms for supervisors to participate fully and comprehensively in the process of accessing to the details of administrative violation cases, the trial results of the Court Thirdly, let the People participate in monitoring administrative judgement enforcement more directly, for example, allow lawyers to participate in protecting the rights and legitimate interests of people who have rights and obligations related to administrative judgement enforcement 22 b Supervision works to enforce court’s judgements and decisions on administrative cases Firstly, fulfill the quantity of the staff and prosecutors who have professional qualifications and experience to meet the demand of supervising administrative judgement enforcement Secondly, focus on managing and operating and supervising the activities of the administrative judgement enforcement Thirdly, strengthen the coordination between the Procuracy and the relevant agencies in the control of administrative judgement enforcement Chapter Summary With the reality of administrative judgement enforcement and on the basis of the requirements as well as policies on the administrative judgement enforcement in the upcoming time, it has been proposed in chapter specific solutions as follows: Firstly, raise awareness of relevant agencies in the process of judgement enforcement, in which the leadership of the executive committee for local authorities should be strengthened, accordingly the propaganda and propagation should be renewed and accessible to cadres, civil servants and the people Secondly, perfect the law of administrative judgement enforcement in the direction of modifying and supplementing the Law on administrative violations in 2015 which is an immediate solution It is necessary to develop and issue the Law on Civil judgement enforcement in addition to the Law on Administrative Procedures Thirdly, improve the effectiveness of state management of the administrative judgement enforcement and the system of civil judgement enforcement agencies, giving consultancy regarding the management of the administrative judgement enforcement through supervision Fourthly, ensure the trial quality of the Court in which the capacity of administrative judges is the factor of changing the quality of adjudication and at the same time strengthen the monitoring and supervision functions of the administrative judgement enforcement CONCLUSION In Vietnam, administrative judgement enforcement is defined as one of the key tasks of judicial reform in the context of building a socialist Vietnamese ruleof-law state With the efforts of the political system and the People in the whole country, there have been certain results In terms of institutions, the legal framework on administrative judgement enforcement is getting better and better in the form the implementation mechanism and in the order as well as implementation procedures or the handling of violations in the administrative judgement enforcement This can be seen clearly in the National Assembly's Law on administrative procedures in 2015 with many 23 important amendments and it can be noted that the Government have issued a revised Decree on administrative judgement enforcement, especially the detailed regulations on handling violations of administrative cases Regarding the results of organization and operation, the work of administrative judgement enforcement has gained positive results thanks to the leadership and direction of the Party committees and authorities from the central to local levels; The awareness of state agencies and individuals about law of administrative judgement enforcement in particular and the work of the administrative judgement enforcement in general is increasingly improved; The monitoring of administrative judgement enforcement is carried out by the system of civil judgement enforcement agencies in accordance with the provisions of the law advising the Ministry of Justice to help the Government to unify state management on administrative judgement enforcement in the whole country; The People's Procuracy at all levels has made great efforts in changing the management and intensive administration work of administrative judgement enforcement; In addition to the above successes of law and law enforcement, the work of administrative judgement enforcement in Vietnam still has many shortcomings, and difficulties which need to be solved, such as: (i) The situation of not strictly abiding by the Court's judgements and decisions on administrative cases is still popular, in which many cases of violation are state agencies or competent individuals; (ii) Statistics and reporting on data of administrative judgement enforcement used for management of administrative judgement enforcement are not timely, sufficient and accurate, with contradiction with data from the People's Courts at all levels and local People's Procuracy; (iii) Some ministries, agencies and localities have not really paid attention to and actively coordinated in the work of administrative judgement enforcement, some localities considered criminal judgement enforcement work as the work of civil judgement enforcement and not strictly follow the information and report to the Government, so the effectiveness of state management in the administraative judgement enforcement is still limited In addition, the responsibility of the head of the agency in directing, inspecting, and handling violations of the administrative judgement enforcement has not been effective, contradicting the violatiion of the administrative judgement enforcement obligations; (iv) Implementation of the monitoring and management function of the Department of Procuracy on civil judgement enforcement and the function of monitoring administrative judgement enforcement of the local People's Procuracy are not commensurate with the roles which are stipulated in the law The solution to improve the law of administrative judgement enforcement is determined to be the most important task in addition to the synchronous solutions, including raising awareness of judgement debtors, especially emphasizing the case of the judgement debtors who are competent state agencies, and raising the quality of courts' trial activities and enhancing the supervision on the administrative judgement enforcement 24 LIST OF PUBLIC WORKS RELATED TO THE THESIS Nguyen Thi Phuong Ha, (2016), Law on administrative judgement enforcement in Vietnam, Journal of People's Courts, No 22, 23 (2016) Nguyen Thi Phuong Ha, (2017), Discussing the law on administrative judgement enforcement in Vietnam today, Journal of Law, No 5, 2017 Nguyen Thi Phuong Ha, (2017), Responsibility of Executives in administrative judgement enforcement, Democracy and Legal Magazine, September 2017, Special Topic Nguyen Thi Phuong Ha, (2018), Some basic factors affecting administrative judgement enforcement in Vietnam today, Journal of Education and Society No 91, November 2018 ... Nguyen Thanh Thuy, (2008), Perfecting the Law on Civil Judgement Enforcement in Vietnam today, Doctoral Dissertation, Ho Chi Minh National Academy of Politics and Public Administration; Chu Thi Hoa... countries in the world and applicability in Vietnam, Ministry of Justice, p.23-40 and Pham Xuan Nam (2012), Administrative judgement enforcement in Vietnam - Current situation and perfect direction... Nguyen Thi Thuong Huyen (2012), Human rights guarantee in administrative judgement enforcement in Vietnam, University-level scientific research project, Ho Chi Minh City University of Law; Nguyen Thi
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