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ORDER AND PROCEDURES FOR SETTLING ADMINISTRATIVE CASES

  18/06/2020

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An administrative case is a case that arises when an individual/ organization disagrees with a decision/ act of a state administrative agency and requests a complaint against the agency that issued the decision or committed an act. Such decisions must be settled or instituted to request the Court to consider the legality of administrative decisions and administrative acts of State agencies and be accepted by courts according to law provisions.

Complainer/ petitioner is an agency, organization or individual that disagrees with an administrative decision, administrative act, disciplinary decision on dismissal or a decision to settle a complaint about a handling decision competition case; list of voters for the election of National Assembly deputies, list of voters for the election of People’s Council deputies, list of voters for referendum whose rights and interests are violated by such decision/conduct.

The defenders are agencies, organizations, and individuals that have administrative decisions, administrative acts, disciplinary decisions on dismissal, and decisions to settle complaints about decisions on handling cases competition, list of voters sued.

  1. The formality of handling the administrative cases
    • Complaining

Citizens, agencies, organizations and civil servants have the right to request competent agencies, organizations and individuals to reconsider administrative decisions and administrative acts of state administrative agencies and agencies competent persons in state administrative agencies or disciplining officials and public employees when there are grounds to believe that such decisions or acts are illegal and infringe upon their lawful rights and interests. At that time, administrative agencies and competent persons in administrative agencies may check the legality and rationality of their administrative decisions and acts.

  • Go to Court

In case of not receiving a response to a complaint or feeling that the decision to answer a complaint is not satisfactory, a citizen, an agency, an organization or a cadre or civil servant has the right to institute a lawsuit at the Court and request the Court to consider the legality of administrative decisions and administrative acts are issued by State administrative agencies

Note: Administrative decisions/ administrative acts which are complained or sued must be specific decisions/ acts (decisions to apply laws), which directly affect the rights and interests of the victims violate.

  1. Order of requesting the Court to settle an administrative case at the first instance level

Step 1. Acceptance of the case (article 125):

  • After receiving the petition and accompanying documents, if the Judge assigned to review the petition finds that the administrative case falls within its jurisdiction, notify the petitioner so that they can pay an advance. court fees; If the litigators are exempt from court fee advances or are not required to pay court fee advances, they shall notify the complainants of the acceptance of the cases. (According to the regulation, the administrative fee of the First Instance is: 300,000 VND).
  • Within 10 working days from the date on which the court fee advance notice is received, the petitioner must pay the court fee advance.
  • Within 03 working days from the day on which the case is accepted, the Chief Justice of the Court assigns the Judge to consider the petition and accept the case; in cases where the Judges who have reviewed the lawsuit petitions and accept the cases cannot continue solving the cases or fall into the cases where they have to refuse to conduct legal proceedings or be changed, the Presidents of the Courts shall assign a Judge other judges to solve the case.
  • Within 03 working days from the day on which the case is accepted, the Judge who has accepted the case must notify in writing the defendant, the person with rights and obligations related to the resolution of the case, and The Procuracy of the same level about the Court’s acceptance of the case and announcement on the Court’s Web Portal (if any).
  • 15 Within 15 days from the date of receiving the notice, the defendant, the person with related rights and obligations must submit to the Court a written document stating his opinion on the request of the petitioner and documents. , accompanying evidence (if any).

Step 2: Preparing for trial

The time limit for preparation for trials of cases, except for those cases subject to simplified procedures, cases involving foreign elements and lawsuits against voters’ lists is prescribed as follows:

  • 04 months from the day on which the case is accepted, in case it is an administrative decision, administrative act or disciplinary decision. For complicated cases or with objective obstacles, the Chief Justice of the Court may decide to extend the time limit for one-time trial preparation but not exceeding 02 months.
  • 02 months from the day on which the case is accepted, the decision to resolve the complaint about the decision to handle the competition case. For complicated cases or with objective obstacles, the Chief Justice of the Court may decide to extend the time limit for one-time trial preparation but not exceeding 01 month.
  • If there is a decision to suspend the resolution of the case, the time limit for trial preparation is counted from the date the court decision to continue resolving the case takes legal effect.
  • Decisions in the trial preparation:
  • Temporarily suspending the resolution of the case;
  • Suspension of case resolution;
  • The decision to bring the case to trial;

Step 3: To bring the case to trial at first instance (article 149):

Within 20 days from the date of the decision to bring the case to trial, the Court must open the trial; In case of plausible reasons, the time limit for opening a trial may be prolonged but must not exceed 30 days.

The trial panel has the right to decide:

  • Your request to sue if the request has no legal basis;
  • Accepting a part of the whole of the petition to sue, canceling part or the whole of the illegal administrative decision and the decision to resolve the related complaint (if any); forcing state agencies or competent persons in state agencies to perform tasks and official duties according to the provisions of law; at the same time, propose ways to handle the illegal administrative decisions which have been canceled;
  • Accepting a part of the whole of the petition to bring a lawsuit, declaring an administrative act is unlawful, declaring a part or the whole of the decision to resolve the relevant complaint (if any); forcing state agencies or competent persons in state agencies to stop illegal administrative acts;
  • Accepting a request to initiate a lawsuit, declaring cancellation of the illegal disciplinary decision on dismissal to force heads of agencies and organizations to perform their tasks and official duties according to law provisions;
  • Accepting a part of the whole of the petition to sue, canceling part or the whole of the decision to resolve the complaint about the unlawful decision on handling of a competition case; compel competent agencies or persons to issue decisions on the settlement of complaints about decisions on handling of competition cases to re-resolve the cases according to the Competition Law;
  • Accept part or all of the petition force the agency to make a list of voters to amend and supplement the list of voters in accordance with law;
  • Forcing agencies or organizations to pay damages, restore lawful rights and interests of agencies, organizations, and individuals that have been violated due to administrative decisions, administrative acts, or disciplinary decisions on forced dismissal. , decisions on handling unlawful competition cases;
  • Proposing to competent state agencies, heads of competent state agencies to consider responsibilities of state agencies, competent persons of state agencies.

Step 4: Appeal or protest in case of disagreement with the First-instance judgment / Decision

  • The time limit for appeal against a court of the first instance is 15 days from the date of pronouncement of the sentence.
  • The time limit for appeal against a first-instance court’s decision to suspend or suspend the case is 7 days from the date the person with the right to appeal receives the decision or from the date the decision is posted at the headquarters of the People’s Committee of the commune where they reside or where the office is based in case the person with the right to appeal is an agency or organization.
  • The time limit for appeal against a first-instance court’s judgment by the Procuracy of the same level is 15 days and for the immediate superior Procuracy is 30 days from the date of pronouncement of the sentence.
  • The time limit for appeal by the Procuracy of the same level for a decision to suspend or a decision to suspend the resolution of a court of the first instance is 7 days, for the immediate superior Procuracy is 10 days from the date the Procuracy of the same level receives the decision.

Complaints and lawsuits to regain their legitimate rights and interests with administrative decisions and administrative acts issued by state administrative agencies are extremely difficult. Because of state agencies are people in a higher position in this relationship. Therefore, it is necessary to have an experienced lawyer and dare to face challenges to be able to solve on behalf of a person who has lost rights.

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