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ORDER AND PROCEDURE OF ADMINISTRATIVE COMPLAINT

  18/06/2020

  3,230 views

 

  1. What is an administrative complaint

A complaint is one of the basic rights of citizens provided for in the Constitution. An administrative complaint is actually a reaction of a citizen or an organization to illegal public acts that cause damage or are considered by them to damage their legitimate rights and interests.

An administrative complaint arises when an individual/organization disagrees with a decision/behavior of a state administrative agency and requests a complaint to the agency that issued the decision or committed such administrative act settle the review of the legality of administrative decisions and administrative acts of State agencies and be accepted by courts according to law provisions.

Complainants are agencies, organizations, and individuals that disagree with administrative decisions, administrative acts, disciplinary decisions on forced dismissal, and decisions to settle complaints about decisions on handling competition cases. ; 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 itself.

Complainants are agencies, organizations, and individuals that have administrative decisions, administrative acts, disciplinary decisions on dismissal, and decisions on settlement of complaints about decisions on handling competition cases and lists voters are sued.

  1. The benefits of making an administrative complaint instead of suing a Court
  • It takes a lot of time (due to the procedures and procedures to resolve the administrative case in the Court for a long time, usually lasting from 1 to 2 years). Appeals may only take 30 to 60 days.
  • Cost support (including government fees and travel expenses)
  • At that time, the administrative authority and its competent persons should check the legality and rationality of its administrative decisions and acts.
  1. The subject of administrative complaints

According to the law on administrative complaints, individuals and organizations have the right to appeal the following subjects when there are grounds to believe that such objects are illegal, infringing upon the lawful rights and interests of me:

  • Administrative decision: is a document issued by a state administrative agency, agency or organization assigned to perform state administrative management or a competent person in that agency or organization issues a decision Specific problems in administrative management activities are applied once to one or some specific subjects.
  • Administrative acts: are acts of state administrative agencies or competent persons in state administrative agencies or agencies or organizations assigned to perform state administrative management, whether or not implemented show tasks and official duties as prescribed by law.
  • Disciplinary decision: is a document expressed in the form of a decision of the head of an agency or organization to apply one of the disciplinary measures to officials and public employees under their management according to regulations of law on cadres and civil servants.

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

  1. Administrative decisions and administrative acts not subject to the complaint include:
  • Administrative decisions, administrative acts within state agencies to direct and organize the performance of tasks and official duties;
  • Administrative decisions, administrative acts in the executive direction of higher-level administrative agencies to lower-level administrative agencies;
  • Administrative decisions containing legal documents issued by competent agencies, organizations and individuals according to the order and procedures of the law on promulgation of legislative documents;
  • Administrative decisions, administrative acts within the scope of state secrets in the fields of defense, security and diplomacy on the list prescribed by the Government.

Pursuant to Clause 1, Article 11 of the Law on Complaints

  1. Statute of limitations for appeal

The statute of limitations for lodging a complaint is 90 days from the date of receipt of an administrative decision or knowledge of an administrative decision or act.

In case the complainant fails to exercise his / her right to appeal according to the statute of limitations due to illness, natural calamity, enemy sabotage, business trip or study in a remote place or because of other objective obstacles, the time for that obstacle is not included in the statute of limitations for appeal.

  1. Forms of complaint about administrative decisions or administrative acts
  • Complaints are made by complaint or direct complaint.
  • In case a complaint is made in writing, the complaint must specify the date of complaint; name and address of the complainant; name and address of the complained agency, organization or individual; content, reasons for complaints, documents related to the content of the complaint and the request for resolution of the complainant. The complaint must be signed or fingerprinted by the complainant.
  • In case the complainant comes to complain directly, the complaint recipient will guide the complainant to write the complaint or the recipient will record the complaint in writing and ask the complainant to sign or fingerprint for confirmation. into the text
  1. Order of requesting the Court to settle an administrative case at the first instance level
  • Verify the content of the complaint
  • Organize dialogue
  • First-time complaint handling decision
  • Submit the first complaint settlement decision

 

Within 03 working days from the day on which the complaint settlement decision is issued, the first-time complaint settler shall send the complaint settlement decision to the complainant or the immediate superior head of the person who deals with the complaint settlement of complaints or competent persons, persons with related rights and obligations, agencies, organizations and individuals that have transferred complaints to and State inspection agencies of the same level.

 

Within 30 days after the expiry of the time limit for settling a complaint, if the first complaint is not settled or from the date of receiving the first-time complaint settlement decision, if the complainant disagrees, appeal to the second-time person competent to settle complaints; For remote areas with difficult access, the time limit may be longer but must not exceed 45 days.

 

Complaints to regain their legitimate rights and interests with administrative decisions and administrative acts promulgated 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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