Securing the Right to File a Lawsuit in Administrative Cases

During the implementation and application of Administrative Procedure Law, many issues have arisen about securing the statute of limitation for initiating a lawsuit. To overcome these limitations, The Council of Judges of the Supreme People’s Court has issued Resolution 01/2015/HĐTP-TANDTC, amending Resolution 02/2011/HĐTP-TANDTC with regard to the guidelines for the implementation of the Administrative Procedure Law.

The new resolution has amended point B clause 1 Article 1 of Resolution 02/2011 as follows:

“b) Administrative decisions, issued after having complaints, which retain the old administrative decisions as the previous ones or modify, substitute, cancel parts or whole previous decisions as shown at point a clause 1 of this Article.”

In comparison to the former provision in Resolution 02/2011, the new provision adds the word “retain the old administrative decisions”; meaning that the administrative decisions issued after the settlement of complaints now becomes the additional lawsuit objects in administrative cases under this Resolution.

Compared to Resolution 02/2011, the new provision has strengthened the claimants’ right to complain and initiate a lawsuit. Under Resolution 02/2011, administrative decisions which are issued after the settlement of complaints and retain the old administrative decisions as, cannot be sued with the new statute of limitation starting from the day of issuance. Consequently, in reality, there may be circumstances in which the lawful rights and interests of the claimants may be violated.

In the first circumstance, if the person who has the authority to settle the complaints wants to retain the previous administrative decisions and prevent the complainants from filing a lawsuit, that person can delay the issuing of decisions until the statute of limitation for initiating a lawsuit expires. This will seriously affect the right to initiate a lawsuit by the complainants if they are not satisfied with the decision regarding the settlement of their complaints.

In the second circumstance, for subjective reasons, the complainants have received the decision regarding the settlement of the complaints when the statute of limitation for initiating the lawsuit has expired. In both circumstances, the complaints cannot file a lawsuit against such decisions, and can only make the complaints for the second time to the competent authority.

Based on the new provision, decisions regarding the settlement of the complaints which retain the previous decisions now become the lawsuit objects in administrative cases. Therefore, if the complainants are not satisfied with those decisions, they can initiate a new lawsuit against those decisions at administrative courts, with the new statute of limitation counting from the date receiving or knowing such decisions.

The new Resolution 01/2015/HĐTP-TANDTC issued by the Council of Judges of the Supreme People’s Court has fully secured the right to complain and initiate a lawsuit by the people in administrative cases. With this provision, the Administrative Procedures in the Courts will become clearer and more effective, contributing to the development of our national judicial system.

By Vietnam Law Insight, LNT & Partners

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

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