Legal basis for administrative procedures

Administrative procedures are set forth in a number of regulations, with Government Resolution No 38/CP of 1994 and Prime Minister's Decision No 136/2001/QD-TTg of September 17, 2001 providing the foundational documents for the nation's programme of administrative reforms between 2001 and 2010.

Under these two documents, administrative procedures are defined as specific activities (and the order of such activities) carried out to realize numerous state administrative functions. And, since state administration is unified, administrative procedures share several common characteristics.

Administrative activities in a particular domain are carried out according to procedures prescribed by law for that domain, with functions performed by state agencies, social organizations and individuals empowered by the State.

Administrative procedures are established by administrative law, including substantive provisions and procedural provisions. Substantive provisions provide for the rights and responsibilities of State administrators and citizens. Procedural provisions define ways of complying with substantive provisions of the administrative law, as well as substantive provisions in other branches of the law, such as marriage and family, land use and civil law.

The manner of carrying out each specific activity is influenced by such factors as jurisdiction, the capacity of administrators, the characteristics of the citizens involved, and other circumstances.

Only if administrative procedures are flexible, can a rational process be created. Therefore, under Vietnamese law, administrative procedures are established on the following principles:

Principle of legality

The principle of legality is manifested primarily in that only competent state agencies may promulgate administrative procedures. The competence to prescribe administrative procedures now rests with central administrative agencies. For a number of administrative procedures which fall within the competence of ministries or central sectors but need specific guidelines to suit the characteristics of localities, such ministries or central sectors may authorize provincial-level People's Committees to establish procedures.

Publicity, transparency

The principle of publicity and transparency is a key element in building a modern and democratic administrative system that protects citizens' rights and interests. It requires that the State create conditions for stakeholders to participate in the formulation of new procedures or in the revision of existing ones.

The contents of administrative procedures must be clear, understandable and feasible, clearly defining the order and manner of compliance, including the content of dossiers, provision of forms and other necessary documents, fees or charges (if any), time limits for completion, and designated agencies, organizations and individuals which carry out the procedures.

Administrative procedures must also be made public. The Law on Promulgation of Legal Documents provides that legal documents will not take legal effect until they are published in Cong Bao (Official Gazette), except for those applying to State secrets or adopting urgent measures to prevent or respond to natural disasters or epidemics.

Government Resolution No 38/CP also requires ministers and heads of Government agencies to publicize documents containing new procedures in various forms.

Under the programme on administrative reform during 2001-10, administrative agencies that conduct affairs of individuals and organizations must publicly display all procedures, orders, fees and working timetables at their offices. They must publish the full names and titles of persons responsible for handling affairs, as well as locations and time limits for settlement of affairs and settlement results.

Simplicity, thrift, and timeliness

Administrative procedures consist of steps and stages intended to save time and effort for the public while facilitating the effective administration of state entities. Government Resolution No 38/CP requires therefore that administrative procedures be simple, easy to understand and easy to carry out.

The programme on administrative reform during 2001-10 also required that cumbersome or overlapping procedures which cause difficulties for people or give opportunities for abuse or corruption must be eliminated.

All administrative procedures are organized roughly according to the following stages:

1. Initiation. Procedures can be initiated by the receipt of a written petition of an individual or organization or the recording of an administrative violation by an agency competent to sanction administrative violations.

2. Investigation and decision. This is the most important phase of administrative procedures. The agency conducting administrative procedures must gather, study and assess information, then select and apply legal provisions. This stage usually concludes with the issuance of a decision.

3. Execution. In this stage, the settlement decision is materialized. Concerned parties must strictly exercise their rights and fulfil their obligations as stated in the decision. The preceding stages can only be of true significance if this stage is strictly implemented.

4. Appeals. Parties with rights and interests directly related to the settlement decision are entitled to lodge appeals with competent state entities. They must examine and re-consider the decision and correct any errors.

Current administrative procedures need to be further reformed in a more comprehensive manner with a view to building a modern, democratic and effective administration and creating a more favorable environment for investment and international integration.

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