Resolution 03/2003/hdtp: Guide The Implementation Of Some Provisions Of The Ordinance On Procedures For Settling Administrative Cases

Original Language Title: Nghị quyết 03/2003/NQ-HĐTP: Hướng dẫn thi hành một số quy định của Pháp lệnh thủ tục giải quyết các vụ án hành chính

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RESOLUTION of the COUNCIL of JUDGES of the SUPREME PEOPLE'S COURT to guide the implementation of some provisions of the Ordinance on procedures for settling administrative cases the COUNCIL of JUDGES of the SUPREME PEOPLE'S COURT based on the law on organization of people's courts;
To the correct and uniform enforcement of the provisions of the Ordinance on procedures for settling administrative cases were amended and supplemented by Ordinance amending and supplementing some articles of the Ordinance on procedures for settling administrative cases (hereinafter referred to as the Ordinance);
 
RESOLUTION: 1. On the "Who has the authority to resolve complaints for the first" the "Who has the authority to resolve the complaint the first time" specified in article 2 of the Ordinance is the State administrative bodies, the competent administrative authority in the State or the head of the Agency, held out one of the administrative decision disciplinary, dismissal or having one of the administrative acts provided for in article 11 Ordinances.
2. the provisions of article 2 of the Ordinance according to the provisions of article 2 of the Ordinance, when in one of the following circumstances, depending on the particular case that the courts based on the corresponding provisions in points 3, 5 and 6 article 31 Ordinances to return the claim: a) the petitioner not to complain to the person who has the authority to resolve the complaint first;
b) petitioner was complaining with authority to resolve the complaint yet, but for the first time limit complaints first and have decided to settle a complaint the first time;
c) Yet have decided to resolve the complaint with respect to the first complaint the disciplinary dismissal;
d) Have the complaint to the competent complaints and had decided to resolve the complaint by that person.
3. the administrative decision is subject to complaint to ask the courts to resolve the case of the administrative decision is administrative grievance object to request the Court to resolve the case the Administration is the first administrative decision. In addition to the administrative decision was the State administrative bodies or competent person in State administrative bodies issued in the first when resolving specific things, dealt in his jurisdiction, then the following administrative decisions is also considered the first administrative decision : a) after the enactment of the administrative decision but no complaints, the State administrative bodies or competent person in State administrative bodies issued administrative decision it issued an administrative decision to replace the previous administrative decisions, the new decision was issued is the first administrative decision;
b) after the enactment of the administrative decision but no complaints, the State administrative bodies or competent person in State administrative bodies issued administrative decision it issued an administrative decision to modify, complement some of the administrative decision before the , the part of the administrative decision before being modified, cancelled and decided to amend and supplement certain points of the administrative decision before the administrative decision is first;
To note that for the two cases of a and b above if the decision was issued after the administrative agency of the State or the competent administrative authorities in the State have received the complaint and the decision that is the result, then the complaint resolution decision following the appeal decision is the first that is not decided first administration;
c) after the person has authority to resolve the complaint or civil courts have the jurisdiction to resolve the case of the administrative decision to cancel a portion or the entire administrative decision complained of or be litigated; delivered to the State administrative bodies or competent person in the State administrative organs to solve the case again for part or all of the administrative decision had been canceled and the results solve is the State administrative bodies or competent person in the State administrative agency has new administrative decision This new decision, it is the first administrative decision;
d) Who has the authority to resolve complaints followed in addition to resolve complaints against the administrative decision complained of, and decisions on one or some entirely new issues not in the decision complained of, then the decision about one or some entirely new problem this is the first administrative decision.
For example, When handling administrative violations, President of the people's Committee of social decision sanctioning administrative violations 400,000 contract. Who sanctioned the first complaint and Chairman of people's Committee decision to keep the township-level sanctioning administrative violations. Who sanctioned the complaint to the person who has the authority to resolve complaints followed by the President of the people's committees at district level. Results complaints followed by the President of the people's Committee of the district level in addition to the decision to keep the decision sanctioning administrative violations of the people's Committee Chairman granted the commune, also decided to confiscate the means used for administrative violations. In this case the decision of the President of the people's Committee of the district level of the media seizure was used for administrative violations is the first administrative decision.
DD) Who has the authority to resolve the complaint followed a decision to cancel the decision by the administrative organ or decide that there is no authority. Who has the authority to decide the new Government, this new decision is the first administrative decision.
For example, When handling administrative violations, President of the people's Committee of social decision sanctioning administrative violations and seized 10 million vehicles are used for administrative violations are worth 5 million. Who sanctioned the first complaint and Chairman of people's Committee decision to keep the township-level sanctioning administrative violations. Who sanctioned the complaint to the person who has the authority to resolve complaints followed by the President of the people's committees at district level. Results complaints followed by the President of the district-level people's committees decided to cancel the decision sanctioning administrative violations of the people's Committee Chairman granted the commune for violating the authority handling administrative violations specified in article 28 Ordinance handling administrative violations. Pursuant to article 29 Ordinance on handling administrative violations, the Chairman of people's Committee of the district level decision sanctioning administrative violations (can of basic content like content decision sanctioning administrative violations of the people's Committee Chairman granted the commune). In this case the decision sanctioning administrative violations by the President of the people's committees at district level is the first administrative decision.
4. administrative acts is subject to complaint to ask the courts to resolve the case the administration under the provisions of point 2 article 4 and article 11 of the administrative acts of the Ordinance is complaint to ask the courts to resolve the case includes the administrative acts of the State administrative bodies or of the competent administrative authorities in the State When performing public service tasks in the job or the fields are specified in points 2, 3, 5, 6, 7, 8 and 9 Article 11 Ordinances and in other work or other areas that are stipulated by law 5. The identification of the person being sued in the case of the administrative

As defined in point 6 article 4 Ordinance, be sued as individuals, organizations, State agencies have administrative decisions, administrative behavior, disciplinary dismissal were grievances; Therefore, to identify the right person being sued when is personal, when is a State Agency, the Organization must be based on the provisions of the law of the jurisdiction.
For example, there are two administrative decision being required to claim the courts in resolving administrative and are led by the Chairman of the people's committees at district level (a decision on sanctioning administrative violations and a decision to revoke the land of households). Pursuant to the provisions of the law of the jurisdiction in this case, the person being sued in the case of the administrative grievance decision sanctioning administrative violations as individuals people's Committee Chairman at district level (article 29 Ordinance handling administrative violations), who sued in the case of the administrative grievance decision to revoke the land of households is District-level people's committees (article 24 and article 26 of the law of the land).
Note that the authority in the State administrative agency prescribed in article 4 is the positions of specific titles and under the provisions of the law, then the positions titles that have the jurisdiction of administrative decisions or administrative acts. Although an administrative decision or an administrative behaviour due to a particular person (he, Ms. Tran Thi X...) or done but the person that signed the administrative decision or perform administrative acts that are under a duty, authoritative titles (for example : The President of the people's Committee of the district ... Police Chief, ...); so, can only call that administrative decisions, administrative acts of the President of the people's Committee of the District of ..., the Chief of police...; that cannot be referred to administrative decisions, administrative acts of a specific person (he, Ms. Tran Thi X. ..). So, in the case of the administrative decision or administrative behavior has transformed the work go elsewhere or retired ... that the administrative decision or administrative acts which were grievances, who are elected, appointed, were appointed ... instead of the position, the title of that person must inherit the rights and obligations , meaning they were sued.
6. The resolution requesting compensation for damages in the administrative case Under the provisions of article 3 (1) of the Ordinance the petitioner administrative case can simultaneously ask for damage compensation. The damage in this case is the actual damage due to administrative decisions, disciplinary dismissal or administrative behavior caused. If the petitioner has requested administrative lawsuits claiming compensation for damage shall be obliged to provide evidence. In case of necessity the Court may collect more evidence to ensure the resolution of the case was correct. In the case of the petitioner in the case the Administration has demanded compensation for damage can provide evidence, then the part request compensation for damage to solve later in a civil case under the General procedure when litigants have requested.
For example, a grievance asking the courts to resolve the administrative decision revoke confiscated vehicles are used for administrative violations, and demanded compensation for the damage caused by some parts of the media that is lost, damaged or real income lost because the media are being kept. If the Court deems the decision to confiscate the means used for administrative violations are contrary to law and deem the request compensation for damage of the grievance is grounded (due to the grievance provided that enough evidence, there are witnesses. ...), the Court decided to cancel the administrative decision which at the same time decide on the compensation of the damage; If the grievance has not been proven that means lost, damaged parts, real income was lost as the account would, the Court only decides to cancel the decision and administrative spend resolving requests compensation for damages to solve in a civil case under the General procedure when litigants have requested.
7. The resolution in the case who sued modification or annulment of administrative decisions, disciplinary dismissal be grievances Under the provisions of article 3 (paragraph 4), and article 20 the Ordinance then in the process of resolving the Administration who sued to have the right to modify or cancel the administrative decision disciplinary, dismissal was filed; Therefore, in the process of resolving administrative person sued has decided to revise or revoke administrative decisions, disciplinary dismissal be grievance the Court should notify the petitioner to know and the need to differentiate: a) If the petitioner agrees with the decision to amend or cancel it and withdraw lawsuit , the Court pursuant to point b paragraph 1 Article 41 Ordinance decision to suspend the resolution of the case;
b) If the petitioner does not agree with the decision to amend or cancel it and does not withdraw the lawsuit, the Court continued the case according to the General procedure. In this case, the Court must review the legality of the decision were grievances and decide to modify or revoke the decision were grievances to customize to each specific case a decision is lawful.
8. Regarding the concept of "works," the other fortified architecture specified in point 2 article 11 a of the Ordinance) "works" to be sure, that sustainable building it elaborately, there must be scientific, technical or artistic. For example, a picture of the monument; a system serving aquaculture. b) "another solidly architecture" is outside the House, then works another fortified architecture must be built 1à sure and sustainable persistent value.
For example, water wells, automotive, home to the Church, the wall Masonry fence attached to houses, factories, warehouse ... c) regardless of the value of housing, works, materials in other fortified architecture from how much over, if there are appeals of administrative decisions, administrative acts in the application of the measures forced the scrapping of a new Court of accepting the settlement , which simply determine the right that is housing, works, materials in other fortified architecture, the courts are accepting the resolution according to the General procedure.
9. Regarding administrative decisions, administrative acts in the field of land management administrative decisions, administrative acts in the field of land management provisions in point 5 article 11 Ordinances including the administrative decisions, administrative acts specified in point 1 and 2 article 4 of Ordinance implementing the content of land management provisions in article 13 and the the respective laws of the law of the land.
The decision of the people's Committee to resolve land disputes is the administrative decision in the field of land management and the litigants have the right to sue the administrative case under the General procedure.
10. Regarding the provisions in point 7 article 11 Ordinances When enforcing the provisions in point 7 article 11 Ordinances need attention as the Court only has jurisdiction to resolve the case for administrative appeals of administrative decisions, administrative acts in the requisitioning, purchasing, asset seizure referendum was issued or made after the date 02/10/1991 (the date the President of the Council of Ministers now is the Prime Minister issued decision No. 297/CT).
11. Regarding the provisions in point 10 article 11 Ordinances

Specified in point 11 Article 10, the Ordinance needs to be understood is that in addition to the administrative regulations in case the point from point 1 to point 9 Article 11 Ordinances, if in a legal text that would have regulated the grievance to ask the courts to resolve under the provisions of the law on the procedure of resolving administrative cases for this type of administrative decision Administration, administrative behavior, then appeals against administrative decisions, administrative acts in administrative case that is specified in point 10 article 11 Ordinances and belongs to the jurisdiction of the Court according to the General procedure. So, when there are complaints of administrative decisions, administrative acts that are not in one of the cases stipulated in points from point 1 to point 9 Article 11 the Ordinance, the Court needs to check whether there were any legal text on that field right to claim regulations of administrative decisions administrative acts which, under the provisions of the law on the procedure of settling the case or not administrative. If there are legal text regulating the Court shall base on 10 point article 11 Ordinances and regulations of the respective legal text that to handle the case administratively under the General procedure; If not is there any legal text regulating the Court pursuant to point 1 article 31 Ordinances to return the claim to the petitioner.
Under the provisions of a number of normative current legislation have been synthesized, the administrative decisions appeals, following administrative acts in cases specified in point 10 article 11 Ordinances and administrative cases in the jurisdiction of the Court under the General procedure : a) grievance administrative decisions, administrative acts relating to the establishment of the industrial property rights (in granting a degree of protection, in the international registrations of trademarks under the Madrid Agreement, in the recognition of well-known trademarks) or in the license voluntarily (article 27 and Article 5, paragraph 51 of Decree 63/CP dated 24/10/1996 of the main detailed rules covering industrial property and was amended and supplemented by Decree No. 21/2001/ND-CP dated 01/02/2001 of the Government);
b) appeals of administrative decisions, administrative acts in the certification of copyright (paragraph 3, paragraph 4 Article 26 and Article 33 of Decree 79/CP dated 29/11/1996 of the Government guidelines for implementing some of the provisions on the rights of the author of the Civil Code);
c) appeals of administrative decisions, administrative acts in approving contracts of technology transfer (article 36 of Decree 45/1998/ND-CP dated 01/07/1998 of the Government detailed provisions on transfer of technology);
d) appeals of administrative decisions, administrative acts for the denial of improper endorsement, with the provisions of the law (article 75 of Decree 69/2000/ND-CP on 08/12/2000 the Government notary, certified);
DD) grievance decisions, administrative violations of the law on the administration of the customs authority, the customs officer under the provisions of the law (paragraph 3 to article 54 of Decree 101/2001/ND-CP dated 31/12/2001 detailing the Government's implementation of some articles of the customs law on customs procedures , test mode, customs supervision);
e) grievance complaint resolution decision of the Chairman of the provincial people's Committee for complaint resolution decision of the Chairman or President of the Board commended, discipline of lawyers against the decision of the Chairman of the Board or of the Council commended the delegation's lawyer discipline (item 2 Article 41 Attorney Ordinance);
g) grievance decision to apply measures to prevent and ensure the handling of administrative violations (article 119 Ordinance on handling administrative violations).
12. Determining the jurisdiction of the Court and who has the authority to resolve claims subsequent to the implementation of the right specified in clause 1 article 13 of Ordinance the authority, first of all need to review administrative decisions, administrative acts which involve a person or several people (up from two). Depending on the specific case of determining the jurisdiction of the Court or of the competent person to resolve the next complaint was as follows: a) If administrative decisions, administrative acts which only involves a person who had just run the administrative lawsuits in the courts of competent jurisdiction , just complain to the person who has the authority to resolve the complaint and who has the authority to resolve complaints next undecided complaint resolution, then the resolution of the jurisdiction of the Court. The Court accepting the case under the General procedure, at the same time notify the competent complaints and demanded to know the next whole record complaints for the Court (if any). If before the time of the court case had decided to resolve the complaints of people who have the authority to resolve the complaint, the Court next on point 6 article 31 Ordinances to return the claim to the petitioner.
b) If administrative decisions, administrative acts that are relevant to many people that all these people that are litigated case in administrative courts have jurisdiction, there are people or all those people just complain to the person who has the authority to resolve the complaint and who has the authority to resolve complaints next undecided complaint resolution , then the resolution of the jurisdiction of the courts and be made as the case was directed at point a category 12.
c) If administrative decisions, administrative acts that are relevant to many people that have only one or some of the petitioner in the case of the Administrative Tribunal has jurisdiction, the Court should distinguish as follows:-in the case of only one or some of the petitioner's administrative case in the courts of competent jurisdiction , others rest not starting lawsuits and administrative complaints to the competent complaints followed then the settlement under the jurisdiction of the Court. The Court accepting the case according to the General procedure.
-In the case of only one or some of the petitioner in the case of the Administrative Tribunal has jurisdiction, others rest while not litigated the case, but claims to have jurisdiction, the next complaint resolved under the authority of the person who has the authority to resolve the complaint. If the Court is not yet the case the Court shall base on point 6 article 31 Ordinances to return the claim to the petitioner; If the Court has the case the Court pursuant to Article 41 paragraph 1 g point Ordinance out decided to suspend the administrative case and transfer case file to the competent person to resolve the complaint.
13. The resolution of the case the Court was accepting the case politically incorrect (since this is the case, or in the jurisdiction of the other court) in case the Court was accepting the case politically incorrect (since this is the case, or in the jurisdiction of other courts), then customize the case that resolved the following : a) If in the course of resolving the appeals process that detects the resolution of this case is in his authority, but this is not the case that the Administration is another case (civil, labor, economic) the Court resolved the case under the General procedure regulating proceedings by law for the resolution of the case that at the same time notify litigants and Procuracy same level know;

b) If in the course of resolving the appeals process which detect the resolution of this case is under the jurisdiction of other courts, the Court has the case pursuant to paragraph 2 article 13 Ordinances cleared acceptance, transfer the case file to the competent court the notice period for compliance, the litigants and the Procuracy same level know;
c) If when appellate administrative case that uncovered the case in case of instructions at points a and b of this section 13, the Court of appeal pursuant to point c Article 64 Ordinance canceling the verdict, the decision of first instance due to serious violations of the proceedings and records of the case to the court having jurisdiction at first instance to the first instance resolution case under the General procedure prescribed by the law the proceedings for the settlement of the case;
d) If upon the trial of Cassation or retrial of administrative case that uncovered the case in case of instructions at points a and b of this section 13, the Court of Cassation or retrial pursuant to point 3 Article 72 Ordinance canceling the verdict, the decision has force of law due to the serious infringement proceedings and records service the judgment for the Court to have jurisdiction at first instance to resolve the case at first instance according to the General procedure by the law regulating procedure for the resolution of the case.
14. Determining the time to calculate the time limit for claims When enforcing the Ordinance article 30 paragraph 1 should note that in the case of the petitioner in the case because the Government does not agree with the decision on complaint resolution times, just the petitioner did petition the courts for resolving the administration within 30 days (for deep remote areas, walking difficulties the region within 45 days) from the date of receiving the decision first complaints that do not depend on the decision to appeal was first issued on time.
15. Regarding the people's Procuratorate participated in the trial Account 3 things 43 and 63 Procuratorate Regulation Ordinance to join the trial or to have comments in writing for some kind of specific administrative lawsuits, now prescribed in point 3 article 21 of law hosted the people's Procuratorate shall when prosecutor handling the administrative case The people's Procuratorate, whose mission, powers: "join the trial and stated the views of the people's Procuracy on the resolution of the case"; so from now onwards after the case, the Court must notify the Procuratorate at the same level and require the same level Procuratorate Procurator participated in the trial. If absent, the Court to postpone the trial.
16. On the decision of the Court of first instance administrative judgment item 2 Article 49 ordinances regulating the primary judgment of cooktop however this clause 2 e points only defined as "the decision of the Court" without specific rules are decided. When hearing administrative cases depending on each particular case that the Court can have one or several of the following decisions: a) your doctor requested by the petitioner, if the request has no legal base;
b) accepted a part or the whole of the petitioner requests a cancellation claim part or all of the administrative decision contrary to law; forcing the State administrative bodies or competent person in State administrative bodies responsible for implementation of the public service in accordance with the law;
c) accept a part or the whole of the petitioner's request to declare some or all of the administrative acts contrary to law; forcing the State administrative bodies or competent person in the State administrative organs to terminate the unlawful administrative acts;
d) Forced the State administrative agency compensation, restoration of rights, legitimate interests of individuals, agencies and organizations be compromised due to administrative decisions, administrative acts contrary to law cause;
DD) accepted the request of the petitioner declares cancel disciplinary dismissal is unlawful; forcing the head of the Agency, the organization responsible for implementation of the public service in accordance with the law; force compensation, restoration of rights, legitimate interests of individuals due to disciplinary dismissal is unlawful cause.
17. The suspension of the case in the appellate stage according to the provisions of article 62, the Ordinance before the appellate court, has the right to suspend the case under the provisions of this Ordinance. At the same time as defined in point 64 Article 2 clause Ridin the Ordinance the Court of appeal has the right "to cancel the judgment of the first instance decision and suspend the case when one of the cases specified in article 41 of this Ordinance"; Therefore, to ensure consistency, the prior appellate trial if there is one in the cases specified in article 41 the Ordinance, the Court of appeal must also establish the Board of review, if the results of the trial showed the correct one in the circumstances specified in article 41 the Ordinance the Court of appeal cancelled the judgment or the decision of the first instance and family only the resolution of the case. Note that if the first instance judgment and cancel the suspension of the case, the Court of appeal judgments appeal; If canceling the decision of first instance and the suspension of the case, the Court of appeal of the appellate decision.
18. Regarding the effect of the resolution a) this resolution by the Council of judges of the Supreme People's Court passed on 18 April 2003 and have effect after fifteen days from the date The report.
The instructions of the Supreme People's Court issued prior to the date this resolution takes effect on the issues was guided in this resolution are repealed.
b) for administrative cases which the Court was accepting but not yet on trial at first instance, appellate, cassation trial or retrial shall apply the guidance in this resolution to resolve.
c) with respect to the verdict, the decision of the Court has legal effect before the date of this resolution have effect shall not apply the guidance in this resolution to protest under procedure of Cassation or retrial, unless there are other protest base./.